Understanding the Problem
In a North Carolina partition action, respondents may want a special proceeding hearing handled remotely rather than in person. The decision point is narrow: what paper should be filed when all parties agree to the remote format. Because partition matters proceed as special proceedings before the clerk of superior court unless moved to a judge for a proper reason, the filing should ask that office for permission and document consent from every party affected by the hearing format.
Apply the Law
North Carolina law allows judicial officials to conduct many proceedings by audio and video transmission. A partition action is a special proceeding, usually filed and maintained through the clerk of superior court. When all parties agree to a remote hearing, the practical filing is a consent motion for remote hearing, supported by written consent from all parties or counsel, and paired with a proposed order for the clerk to sign if allowed.
Key Requirements
- Proper forum: File the request in the pending partition special proceeding with the clerk of superior court in the county where the case is pending.
- All-party consent: State that every party agrees to the remote format, or attach separate written consents signed by each party or that party’s attorney.
- No good-cause objection: State that no party objects to proceeding by audio-video transmission. If any party does object and shows good cause, the hearing may need to proceed in person or be handled differently.
- Remote access details: Confirm that all participants can see and hear each other, communicate privately with counsel if represented, and use a videoconferencing platform approved for court proceedings.
- Proposed order: Submit a proposed order allowing the remote hearing, including the hearing date, time, platform or remote-access method, and any instructions required by the clerk’s office.
What the Statutes Say
- N.C. Gen. Stat. § 7A-49.6 (Proceedings by audio and video transmission) - permits judicial officials to conduct many proceedings by audio-video transmission, subject to safeguards, objection rules, public access, recording requirements, and approved technology.
- N.C. Gen. Stat. § 46A-1 (Partition is a special proceeding) - provides that partition under Chapter 46A proceeds as a special proceeding unless Chapter 46A changes the procedure.
- N.C. Gen. Stat. § 1-394 (Contested special proceedings) - addresses commencement, service, and the 30-day answer period in partition proceedings.
- N.C. Gen. Stat. § 7A-103 (Authority of clerk of superior court) - lists powers of the clerk, including authority to issue orders, administer oaths, preserve order, and manage matters within the clerk’s court.
Analysis
Apply the Rule to the Facts: The respondents want a remote hearing in a pending North Carolina partition special proceeding, and court staff indicated that remote handling may be allowed if everyone consents. Those facts point to a consent motion for remote hearing, not an informal email alone. The motion should state the agreement of all parties, confirm that the hearing is suitable for remote audio-video transmission, and ask the clerk of superior court to enter an order allowing the remote hearing.
The filing should not simply say that the parties “prefer” remote access. It should create a clear record that all parties consent to the remote format and that no party is making a good-cause objection. If the matter is contested on the merits, the motion can still request a remote hearing, but the clerk may require a different process, additional findings, or an in-person setting depending on the issues, evidence, and local practice. For a related discussion of remote hearing logistics in a partition case, this remote hearing for a partition action involving multiple parties article addresses similar scheduling concerns.
Process & Timing
- Who files: Any party, commonly the party requesting remote access, or all parties jointly. Where: The office of the clerk of superior court in the county where the partition special proceeding is pending. What: A consent motion or joint motion for remote hearing, written consents or signature blocks for all parties or counsel, a certificate of service, and a proposed order. When: File it as soon as remote handling becomes necessary and preferably before the clerk finalizes hearing logistics; do not wait until the day of the hearing.
- Serve all parties: Even when everyone agrees, serve the filed motion and proposed order on all parties or counsel of record. This avoids confusion and gives the clerk a clean record that the request was shared with everyone.
- Coordinate with the clerk’s office: After filing, follow the clerk’s local instructions for remote platform access, exhibit submission, witness access, and public access if the hearing is open. County practices can vary.
- Obtain the order: The hearing should proceed remotely only after the clerk or presiding judicial official allows it. The final document should be an order granting the remote hearing request or a notice with remote hearing instructions issued under the court’s direction.
Exceptions & Pitfalls
- Assuming consent is enough without an order: Party agreement helps, but the court controls the hearing format. A filed motion and proposed order create a clear path for approval.
- Leaving out a party: In partition cases, all cotenants and parties of record matter. If one party has not consented, the motion should not represent that everyone agrees.
- Ignoring private attorney-client communication: A represented party must be able to communicate fully and confidentially with counsel during a remote proceeding.
- Using the wrong technology: North Carolina remote proceedings must use approved videoconferencing applications. The proposed order should leave room for the court’s chosen platform.
- Overlooking exhibits and witnesses: If evidence will be offered, the filing or follow-up communication should address how exhibits, witness appearance, and identification will be handled under local instructions.
- Confusing a remote request with a continuance: A motion for remote hearing asks to change the format, not necessarily the date. If more time is needed, a separate continuance request may be necessary.
- Contested hearing issues: If the hearing is contested, the clerk may require in-person testimony, different scheduling, or additional safeguards even when remote attendance would be convenient.
Conclusion
When everyone agrees to a remote partition hearing in North Carolina, file a consent motion or joint motion with the clerk of superior court in the pending special proceeding, along with written consents, a certificate of service, and a proposed order. The filing should state that all parties consent, no party objects to the audio-video format, and all participants can use the court-approved platform. File the motion before the hearing logistics are finalized.
Talk to a Partition Action Attorney
If you're dealing with a North Carolina partition hearing that may need to proceed remotely, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at 919-341-7055.
Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.
