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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 33918
Experience:  Began practicing law in 1992
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I have a few questions around recourse for judicial

Customer Question

I have a few questions around recourse for judicial misconduct
JA: What state are you in? It matters because laws vary by location.
Customer: NC
JA: Has anything been filed or reported?
Customer: Not sure what you mean by that
JA: Anything else you want the lawyer to know before I connect you?
Customer: no
Submitted: 1 month ago.
Category: Legal
Expert:  Dwayne B. replied 1 month ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today.

Expert:  Dwayne B. replied 1 month ago.

Please allow me some time to read your facts and type my response.

If you receive an email regarding a phone call for an extra price that comes directly from the website and not from me and I have no control over the sending of the email. I don't take part in the telephone program and only work through this format and under your facts this format should be sufficient.

Expert:  Dwayne B. replied 1 month ago.

Is there a specific question with which I could assist?

Customer: replied 1 month ago.
I had a custody hearing in August of 2016. At the end of the hearing Judge awarded me full legal custody but gave mom a "second chance" to show she could change with a review hearing to be held 6 months later. At review hearing in Feb. Judge reads the riot act to mom for "squandering her second chance" etc. but stops short of making a ruling and says she needs to review the evidence. Largely been crickets ever since. After much prodding from my attorney and attempts at a review hearing that were denied we get an email from the clerk that literally says the following only."Please accept this email as a direct communication from Judge: No change in physical custody. CTM"This is obviously not a real ruling. It seems evident to me and others that she doesnt even remember that she hasnt made a ruling yet on this case. There are no findings of fact there are no conclusions of law. It seems to me to be an egregious error that has cost both time and money and leaves us no further along than where we were before the first trial. My questions are as follows:Is there any kind of recourse for me?Who can I complain to about this? What will happen if I do?Can the head family court judge help to compel a decision?In any other business or government entity there seems to be ways of resolving issues when people completely fail to do their job but there doesnt seem to be any recourse for me here as I cant appeal an email. What is my best response to this to convey how wrong and upsetting this is. It seems evident to me that she never reviewed the evidence at all and after getting a WTF email from my lawyer her clerk responeded with that email in less than 24hrs. after waiting nearly 7 months to hear anything after the reveiw hearing.
Expert:  Dwayne B. replied 1 month ago.

"Please accept this email as a direct communication from Judge: No change in physical custody. CTM"

First, I disagree that this is not a real ruling. Certainly your attorney can send a full order for the judge to sign, but since this was a "review" hearing then this basically means the judge saw nothing to change their mind about the original ruling. Most order don't have full findings of fact and conclusions of law contained in them. Under Rule 52 of the NC Rules of Civil Procedure findings of fact and conclusions of law are not required unless a party requests them. There are a few types of order where case law has determined they always should be made, but none of those orders are implicated in your facts.

Is there any kind of recourse for me?

You can file for an appeal, although I don't really see what you have to gain by doing so since the judge is still ruling in your favor. You can also file a Motion for Reconsideration but, again, since you won I''m not sure why you would want to do that.

Who can I complain to about this? What will happen if I do?

Discussed above.

Can the head family court judge help to compel a decision?

They could, in theory anyway. Most head judges have the power to issue administrative orders to the other judges but whether they can in this case depends on how the head judge was assigned and what was set as their duties. Normally you don't go to a head judge, you go to the court of appeals.

If you want to make any complaints about the judge then your lawyer should draft an order and send it to the judge for signature and, if necessary, set a hearing for entry of the order.

If you want to file a complaint about the judge's ethics you would do so at the NC Judicial Standards Committee at http://www.nccourts.org/Courts/CRS/Councils/JudicialStandards/

However, judges tend to remember these things and it isn't an automatic recusal just because you filed an ethical complaint so the judge could very well be hearing your case again in the future. I don't see an ethical issue here in the facts you've given so my feeling is that the committee wouldn't take any action.

Perhaps you could explain why you believe the judge should have done something else if you were awarded custody and the judge didn't change that?

Customer: replied 1 month ago.
I am sorry I need to clarify that we are discussing physical custody. I was awarded full legal custody but physical custody was left at 50/50 (week on week off) during the review period. The ruling from the original trial was not much more than "full legal custody to father. TPA governs all other things until a final ruling. We requested among other things that mother should pay attorneys fees for me for her "second chance" additionally there is no language about child support, how to share expenses, holiday schedule etc. etc. there is really nothing other than a basic TPA and I have legal custody. If you could revisit the questions with these clarifications I would greatly appreciate it.
Expert:  Dwayne B. replied 1 month ago.

Did your attorney submit an order with the language that you wanted?

Customer: replied 1 month ago.
nothing has been done as of yet just recieved the communication from the clerk today
Expert:  Dwayne B. replied 1 month ago.

In every court I have been in, other than small claims courts, the order is drafted by the attorney for the prevailing party and then submitted to the judge for their signature. That is what you would need to do before you can pursue any other action and it may be or likely is what the judge is waiting on.

You do have to include findings of fact and conclusions of law as to the part about attorney's fees but not the regular part of the case unless the other side requests them.

If the judge didn't specifically address child support, expenses, etc. but there was testimony on those issues then the lawyer can draft the order based on that. What most attorneys do is draft the order and then send it to the judge and the other side along with a letter requesting that the judge sign the order if the other side doesn't file a written objection by a certain time (usually 10 days or so).

Customer: replied 1 month ago.
just seems more than evident that the judges ruling was made a) assuming there was a final ruling already in place and b) without "reviewing the evidence" as was stated 7 months ago since we heard nothing until my attorneys email yesterday asking for some kind of update on the status.
Expert:  Dwayne B. replied 1 month ago.

The judge was likely reviewing only their "docket entry" which are notes the judge makes to himself or herself about the rulings. The judges normally don't pull the files and go through them.

There should have been an order sent six months ago with a paragraph that the case would be reviewed in six months, then the ruling in this case could have been done in an order that was one paragraph or so. If there wasn't an order entered after that hearing it will be a fairly long one.

Expert:  Dwayne B. replied 1 month ago.

Also, nothing that the judge ruled on is enforceable until there is a written order signed by the judge. That's the main reason you try and do orders ASAP after the judge rules.

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a 5 Star Positive Rating so I receive credit for my work. Of course, please feel free to ask any follow-up questions in this thread. I want to be sure all of your questions are answered.

Expert:  Dwayne B. replied 1 month ago.

I have to go offline for just a little while but will be back shortly.