§ 50-13.4. Action for support of minor child.
§ 50‑13.4. Action forsupport of minor child.
(a) Any parent, or anyperson, agency, organization or institution having custody of a minor child, orbringing an action or proceeding for the custody of such child, or a minorchild by his guardian may institute an action for the support of such child ashereinafter provided.
(b) In the absence ofpleading and proof that the circumstances otherwise warrant, the father andmother shall be primarily liable for the support of a minor child. In theabsence of pleading and proof that the circumstances otherwise warrant, parentsof a minor, unemancipated child who is the custodial or noncustodial parent ofa child shall share this primary liability for their grandchild's support withthe minor parent, the court determining the proper share, until the minorparent reaches the age of 18 or becomes emancipated. If both the parents of thechild requiring support were unemancipated minors at the time of the child'sconception, the parents of both minor parents share primary liability for theirgrandchild's support until both minor parents reach the age of 18 or becomeemancipated. If only one parent of the child requiring support was anunemancipated minor at the time of the child's conception, the parents of bothparents are liable for any arrearages in child support owed by the adult oremancipated parent until the other parent reaches the age of 18 or becomesemancipated. In the absence of pleading and proof that the circumstancesotherwise warrant, any other person, agency, organization or institutionstanding in loco parentis shall be secondarily liable for such support. Suchother circumstances may include, but shall not be limited to, the relativeability of all the above‑mentioned parties to provide support or the inabilityof one or more of them to provide support, and the needs and estate of thechild. The judge may enter an order requiring any one or more of the above‑mentionedparties to provide for the support of the child as may be appropriate in theparticular case, and if appropriate the court may authorize the application ofany separate estate of the child to his support. However, the judge may notorder support to be paid by a person who is not the child's parent or anagency, organization or institution standing in loco parentis absent evidenceand a finding that such person, agency, organization or institution hasvoluntarily assumed the obligation of support in writing. The precedingsentence shall not be construed to prevent any court from ordering the supportof a child by an agency of the State or county which agency may be responsibleunder law for such support.
The judge may orderresponsible parents in a IV‑D establishment case to perform a job search,if the responsible parent is not incapacitated. This includes IV‑D casesin which the responsible parent is a noncustodial mother or a noncustodialfather whose affidavit of parentage has been filed with the court or whenpaternity is not at issue for the child. The court may further order theresponsible parent to participate in work activities, as defined in 42 U.S.C. §607, as the court deems appropriate.
(c) Payments orderedfor the support of a minor child shall be in such amount as to meet thereasonable needs of the child for health, education, and maintenance, havingdue regard to the estates, earnings, conditions, accustomed standard of livingof the child and the parties, the child care and homemaker contributions ofeach party, and other facts of the particular case. Payments ordered for the supportof a minor child shall be on a monthly basis, due and payable on the first dayof each month. The requirement that orders be established on a monthly basisdoes not affect the availability of garnishment of disposable earnings based onan obligor's pay period.
The court shall determine theamount of child support payments by applying the presumptive guidelinesestablished pursuant to subsection (c1) of this section. However, upon requestof any party, the Court shall hear evidence, and from the evidence, find thefacts relating to the reasonable needs of the child for support and therelative ability of each parent to provide support. If, after considering theevidence, the Court finds by the greater weight of the evidence that theapplication of the guidelines would not meet or would exceed the reasonableneeds of the child considering the relative ability of each parent to providesupport or would be otherwise unjust or inappropriate the Court may vary fromthe guidelines. If the court orders an amount other than the amount determinedby application of the presumptive guidelines, the court shall make findings offact as to the criteria that justify varying from the guidelines and the basisfor the amount ordered.
Payments ordered for thesupport of a child shall terminate when the child reaches the age of 18 except:
(1) If the child isotherwise emancipated, payments shall terminate at that time;
(2) If the child isstill in primary or secondary school when the child reaches age 18, supportpayments shall continue until the child graduates, otherwise ceases to attendschool on a regular basis, fails to make satisfactory academic progress towardsgraduation, or reaches age 20, whichever comes first, unless the court in itsdiscretion orders that payments cease at age 18 or prior to high schoolgraduation.
In the case of graduation, orattaining age 20, payments shall terminate without order by the court, subjectto the right of the party receiving support to show, upon motion and withnotice to the opposing party, that the child has not graduated or attained theage of 20.
If an arrearage for childsupport or fees due exists at the time that a child support obligationterminates, payments shall continue in the same total amount that was due underthe terms of the previous court order or income withholding in effect at thetime of the support obligation. The total amount of these payments is to beapplied to the arrearage until all arrearages and fees are satisfied or untilfurther order of the court.
(c1) Effective July 1,1990, the Conference of Chief District Judges shall prescribe uniform statewidepresumptive guidelines for the computation of child support obligations of eachparent as provided in Chapter 50 or elsewhere in the General Statutes and shalldevelop criteria for determining when, in a particular case, application of theguidelines would be unjust or inappropriate. Prior to May 1, 1990 theseguidelines and criteria shall be reported to the General Assembly by theAdministrative Office of the Courts by delivering copies to the President ProTempore of the Senate and the Speaker of the House of Representatives. Thepurpose of the guidelines and criteria shall be to ensure that payments orderedfor the support of a minor child are in such amount as to meet the reasonableneeds of the child for health, education, and maintenance, having due regard tothe estates, earnings, conditions, accustomed standard of living of the childand the parties, the child care and homemaker contributions of each party, andother facts of the particular case. The guidelines shall include a procedurefor setting child support, if any, in a joint or shared custody arrangementwhich shall reflect the other statutory requirements herein.
Periodically, but at leastonce every four years, the Conference of Chief District Judges shall review theguidelines to determine whether their application results in appropriate childsupport award amounts. The Conference may modify the guidelines accordingly.The Conference shall give the Department of Health and Human Services, theAdministrative Office of the Courts, and the general public an opportunity toprovide the Conference with information relevant to the development and reviewof the guidelines. Any modifications of the guidelines or criteria shall bereported to the General Assembly by the Administrative Office of the Courtsbefore they become effective by delivering copies to the President Pro Temporeof the Senate and the Speaker of the House of Representatives. The guidelines,when adopted or modified, shall be provided to the Department of Health andHuman Services and the Administrative Office of the Courts, which shalldisseminate them to the public through local IV‑D offices, clerks ofcourt, and the media.
Until July 1, 1990, theadvisory guidelines adopted by the Conference of Chief District Judges pursuantto this subsection as formerly written shall operate as presumptive guidelinesand the factors adopted by the Conference of Chief District Judges pursuant tothis subsection as formerly written shall constitute criteria for varying fromthe amount of support determined by the guidelines.
(d) In non‑IV‑Dcases, payments for the support of a minor child shall be ordered to be paid tothe person having custody of the child or any other proper person, agency,organization or institution, or to the State Child Support Collection andDisbursement Unit, for the benefit of the child. In IV‑D cases, paymentsfor the support of a minor child shall be ordered to be paid to the State ChildSupport Collection and Disbursement Unit for the benefit of the child.
(d1) For child supportorders initially entered on or after January 1, 1994, the immediate incomewithholding provisions of G.S. 110‑136.5(c1) shall apply.
(e) Payment for thesupport of a minor child shall be paid by lump sum payment, periodic payments,or by transfer of title or possession of personal property of any interesttherein, or a security interest in or possession of real property, as the courtmay order. The court may order the transfer of title to real property solelyowned by the obligor in payment of arrearages of child support so long as thenet value of the interest in the property being transferred does not exceed theamount of the arrearage being satisfied. In every case in which payment for thesupport of a minor child is ordered and alimony or postseparation support isalso ordered, the order shall separately state and identify each allowance.
(e1) In IV‑D cases,the order for child support shall provide that the clerk shall transfer thecase to another jurisdiction in this State if the IV‑D agency requeststhe transfer on the basis that the obligor, the custodian of the child, and thechild do not reside in the jurisdiction in which the order was issued. The IV‑Dagency shall provide notice of the transfer to the obligor by delivery ofwritten notice in accordance with the notice requirements of Chapter 1A‑1,Rule 5(b) of the Rules of Civil Procedure. The clerk shall transfer the case tothe jurisdiction requested by the IV‑D agency, which shall be ajurisdiction in which the obligor, the custodian of the child, or the childresides. Nothing in this subsection shall be construed to prevent a party fromcontesting the transfer.
(f) Remedies forenforcement of support of minor children shall be available as herein provided.
(1) The court mayrequire the person ordered to make payments for the support of a minor child tosecure the same by means of a bond, mortgage or deed of trust, or any othermeans ordinarily used to secure an obligation to pay money or transferproperty, or by requiring the execution of an assignment of wages, salary orother income due or to become due.
(2) If the courtrequires the transfer of real or personal property or an interest therein as providedin subsection (e) as a part of an order for payment of support for a minorchild, or for the securing thereof, the court may also enter an order whichshall transfer title as provided in G.S. 1A‑1, Rule 70 and G.S. 1‑228.
(3) The remedy of arrestand bail, as provided in Article 34 of Chapter 1 of the General Statutes, shallbe available in actions for child‑support payments as in other cases.
(4) The remedies ofattachment and garnishment, as provided in Article 35 of Chapter 1 of theGeneral Statutes, shall be available in an action for child‑supportpayments as in other cases, and for such purposes the child or person bringingan action for child support shall be deemed a creditor of the defendant.Additionally, in accordance with the provisions of G.S. 110‑136, acontinuing wage garnishment proceeding for wages due or to become due may beinstituted by motion in the original child support proceeding or by independentaction through the filing of a petition.
(5) The remedy ofinjunction, as provided in Article 37 of Chapter 1 of the General Statutes andG.S. 1A‑1, Rule 65, shall be available in actions for child support as inother cases.
(6) Receivers, asprovided in Article 38 of Chapter 1 of the General Statutes, may be appointedin action for child support as in other cases.
(7) A minor child orother person for whose benefit an order for the payment of child support hasbeen entered shall be a creditor within the meaning of Article 3A of Chapter 39of the General Statutes pertaining to fraudulent conveyances.
(8) Except as providedin Article 15 of Chapter 44 of the General Statutes, a judgment for childsupport shall not be a lien against real property unless the judgment expresslyso provides, sets out the amount of the lien in a sum certain, and adequatelydescribes the real property affected; but past due periodic payments may bymotion in the cause or by a separate action be reduced to judgment which shallbe a lien as other judgments and may include provisions for periodic payments.
(9) An order for theperiodic payments of child support or a child support judgment that providesfor periodic payments is enforceable by proceedings for civil contempt, anddisobedience may be punished by proceedings for criminal contempt, as providedin Chapter 5A of the General Statutes.
Notwithstandingthe provisions of G.S. 1‑294, an order for the payment of child supportwhich has been appealed to the appellate division is enforceable in the trialcourt by proceedings for civil contempt during the pendency of the appeal. Uponmotion of an aggrieved party, the court of the appellate division in which theappeal is pending may stay any order for civil contempt entered for childsupport until the appeal is decided, if justice requires.
(10) The remedies providedby Chapter 1 of the General Statutes, Article 28, Execution; Article 29B,Execution Sales; and Article 31, Supplemental Proceedings, shall be availablefor the enforcement of judgments for child support as in other cases, butamounts so payable shall not constitute a debt as to which property is exemptfrom execution as provided in Article 16 of Chapter 1C of the General Statutes.
(11) The specificenumeration of remedies in this section shall not constitute a bar to remediesotherwise available.
(g) An individual whobrings an action or motion in the cause for the support of a minor child, andthe individual who defends the action, shall provide to the clerk of the courtin which the action is brought or the order is issued, the individual's socialsecurity number.
(h) Child supportorders initially entered or modified on and after October 1, 1998, shallcontain the name of each of the parties, the date of birth of each party, andthe court docket number. The Administrative Office of the Courts shall transmitto the Department of Health and Human Services, Child Support EnforcementProgram, on a timely basis, the information required to be included on ordersunder this subsection and the social security number of each party as requiredunder subsection (g) of this section. (1967, c. 1153, s. 2; 1969, c. 895, s. 17; 1975, c.814; 1977, c. 711, s. 26; 1979, c. 386, s. 10; 1981, c. 472; c. 613, ss. 1, 3;1983, c. 54; c. 530, s. 1; 1985, c. 689, s. 17; 1985 (Reg. Sess., 1986), c.1016; 1989, c. 529, ss. 1, 2; 1989 (Reg. Sess., 1990), c. 1067, s. 2; 1993, c.335, s. 1; c. 517, s. 5; 1995, c. 319, s. 9; c. 518, s. 1; 1997‑433, ss.2.1(a), 2.2, 4.4, 7.1; 1997‑443, ss. 11A.118(a), 11A.122; 1998‑17,s. 1; 1998‑176, s. 1; 1999‑293, ss. 3, 4; 1999‑456, s. 13;2001‑237, s. 1; 2003‑288, s. 1; 2008‑12, s. 1.)