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LawTalk
LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 35361
Experience:  30 years legal experience. I remain current in Family Law through regular continuing education.
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If the North Carolina Court of Appeals Vacates and Remands a

Customer Question

If the North Carolina Court of Appeals Vacates and Remands a custody order, do you get a new hearing or can the Judge just redo the order that was vacated without holding a new hearing?
Submitted: 9 months ago.
Category: Family Law
Expert:  LawTalk replied 9 months ago.

Good evening,

I'm Doug, and I'm sorry to hear of the confusion. My goal is to provide you with excellent service today.

The appeals court vacating the original order means that it is no longer of any force and effect and the lower court will have to consider the facts again and enter a new ruling. The reason for the order being vacated will be set out in the Appeals Court's opinion and depending on the reason given for the order being vacated, the lower court could rule the same way (if the order was vacated for a technical issue) but if the order being vacated was based on the failure of the lower court to hear certain evidence, or the court ignoring certain evidence or a valid objection by one of the partied to evidence offered by the other party, that would set the stage for a re-hearing and each party would get to re-argue their position. The re-hearing happens more often than not. It is rare that the lower court would simply re-issue the order as that would suggest that the Appeals Court's basis for the first order being vacated was not considered by the lower court.

You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please be so kind as to rate my service to you. That is the only way I am credited for assisting you.

I wish you and yours the best in 2016,

Doug

Expert:  LawTalk replied 9 months ago.
Customer: replied 9 months ago.
Based on your answer would the following commentary taken directly from the decision put us at having a new hearing or the Judge fixing the Order? If so, why?
"On remand, the trial court should enter findings based on the preponderance of the evidence and conclusions of law supported by its findings. If the trial court modifies the custody order of 10 October 2013 or its associated supplemental order of 19 November 2013, its findings must support an ultimate finding that there has been a substantial change of circumstances that affects the welfare of the child. If the trial court denies plaintiff reasonable visitation its evidentiary findings should support an ultimate finding that plaintiff is either unfit to visit with the child or that visitation with plaintiff is not in the child’s best interest."
Customer: replied 9 months ago.
COA decision continued "In sum, the trial court’s custody order must be vacated because (1) the trial
court failed to make conclusions of law; (2) the order modified custody without first
finding that there has been a substantial change of circumstances, and (3) the order
denied plaintiff any visitation with the child without the findings required to support
such an order. Because we are vacating the order from which plaintiff appeals and
remanding the case, we find it unnecessary to address plaintiff’s other issues."
Expert:  LawTalk replied 9 months ago.

Presuming that the necessary evidence was submitted to allow the court to set out in writing an explanation of the ruling that it makes, then in this circumstance it could be done without a further hearing. The court apparently failed to set out its findings of fact which supported the order that it made. To correct the matter, they would need to simply modify the order with a new set of findings of fact and concomitant conclusions of law supporting its original order---presuming that those facts exist on the record.

While the lower court may set a rehearing to gather additional facts to support its original position, or to allow for reconsideration of the matter through a rehearing, there is a good chance that the lower court---again, if the record has sufficient factual evidence presented, that the judge may simply amend the original order to include an adequate recitation of the findings of fact and conclusions of law to support the original order.

Please keep in mind that, even though you have already paid your deposit money over to JustAnswer, until you rate me highly for my service, I will not be paid for having assisted you with your questions.

You may of course reply back to me and I will be happy to continue to assist you further.

I wish you well,

Doug

Expert:  LawTalk replied 9 months ago.

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