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An In-Depth Discussion of Domestic Violence
(provided by Gilpin & Hatcher, P.C.)

One woman is beaten by her husband or partner every 15 seconds in the United States. This staggering statistic has not gone unnoticed by the North Carolina legislature and thus our courts have developed a mechanism for helping women who may be suffering from domestic violence. This mechanism is the 50B Domestic Violence Protective Order. In many domestic violence situations, you can obtain the 50B Order without the usual notice requirements to the alleged abuser if you can show that the abuser attempted to cause bodily injury, intentionally caused bodily injury or places you and/or your children in fear of imminent serious bodily injury by the threat of force. Typically the Order will provide that your abuser must stay away from you and/or your children and may provide other remedies, such as providing you with temporary custody of your children or granting you possession of the marital residence. In order to obtain a 50B Order, you must have established a "personal relationship" with the alleged abuser, the type of which is clearly outlined in Section 50B-1(b). Once the Order is entered, if your spouse or abuser violates the Order, he or she will be arrested.

The Elements of Domestic Violence and the 50B Protective Order:

For purposes of obtaining a 50B Protective Order, "domestic violence" means the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the aggrieved party has or has had a personal relationship, but does not include acts of self-defense:

1. Attempting to cause bodily injury, or intentionally causing bodily injury; or

2. Placing the aggrieved party or a member of the aggrieved party's family or household in fear of imminent serious bodily injury or continued harassment, that rises to such a level as to inflict substantial emotional distress; or

3. Committing any act defined in G.S. 14-27.2 through G.S. 14-27.7 N.C.G.S. Section 50B-1(a).

You are eligible to obtain a 50B Protective Order against an abuser if you and/or your children have suffered acts of domestic violence from an abuser with whom you have a "personal relationship" which means you and the alleged abuser are either:

1. Current of former spouses;
2. Persons of the opposite sex who live together or have lived together;
3. Related as parents and children or as grandparents and grandchildren unless the child or grandchild is under the age of 16; 4. Persons who have a child in common;
5. Current or former household members; or
6. Persons of the opposite sex who are or have been in a dating relationship (A "dating relationship" is one wherein the parties are romantically involved over time and on a continuous basis during the course of the relationship. A casual acquaintance or ordinary fraternization between persons in a business or social context is not a dating relationship.) N.C.G.S. Section 50-B(b).

If granted, the 50B Order directs the abuser to stay away from and to not assault, threaten or harass the victim and her children. It can also give many other types of emergency assistance, including:

1. Grant a party possession of the residence or household of the parties and exclude the other party from the residence or household;
2. Require a party to provide a spouse and his or her children suitable alternate housing;
3. Award temporary custody of minor children and establish a temporary safe visitation plan;
4. Order the eviction of a party from the residence and order assistance to the victim returning to the home;
5. Order either party to make child support payments;
6. Order either party to make spousal support payments;
7. Provide for possession of personal property of the parties (such as the more reliable car);
8. Order a party to refrain from doing any or all of the following:
a) Threatening, abusing, or following the other party;
b) Harassing the other party, including by telephone, visiting the home or workplace, or other means; or
c) Interfering with the other party;
9. Order the batterer to stay away from the victim's school and places where the children live or go to daycare or school;
10. Award either party courts costs and attorney's fees;
11. Order the defendant not to possess or purchase any firearms for a time fixed in the Order;
12. Order any party the court finds is responsible for acts of domestic violence to attend and complete an abuser treatment program; or
13. Include any additional prohibitions or requirements the court deems necessary to protect any party or any minor child. N.C.G.S. Section 50B-3(a).

Any Order entered pursuant to Chapter 50B will be for a fixed period of time not to exceed one year. The Court may renew a protective order for a fixed period of time not to exceed one year, upon motion by the aggrieved party filed before the expiration of the current order. The Court may renew a protective order for good cause. N.C.G.S. Section 50B-3(b)

The Effects:

The effect of a 50B Order is essentially to protect men, women and children residing with the aggrieved party. Most importantly it provides the victim with a fast method of separating from his or her abuser. The Order does this, as discussed above, by providing the victim with a 50B Protective Order for a fixed period of time not to exceed one year during which time the abuser may not assault, threaten, or harass the victim and/or her children. The Court has the authority to expand the scope of its Order as it sees fit, including, but not limited to, ordering the abuser to stay away from the victim's place of work or awarding temporary custody of a child to the victim. For a complete list of remedies, see Section 50B-3(a) This order may be renewed for a fixed period of time not to exceed one year, upon motion by the aggrieved party filed before the expiration of the current order. The Court may renew a protective order for good cause. N.C.G.S. Section 50B-3(b).

The Process:

Most victims of domestic violence seeking a Protective Order are in a crisis. Therefore, the process is designed to help in an emergency. If you have time to gather evidence before you file your 50B Complaint, you may do so. If not, you may want to gather the evidence we will discuss later as soon as you can after filing. Most importantly, protect yourself. Being safe is far more important that gathering evidence.

To start the lawsuit against your abuser, fill out a Complaint and Motion for Domestic Protective Violence Order and file it with the Clerk of Court or the magistrate's office (if after regular work hours). In your Complaint, it is important to be as detailed as possible about any abuse that occurred, including when it occurred. Use specific dates if you can and describe in detail the violence and injuries that occurred. If you are in a long-term abuse situation, you may want to use the two most recent incidents and the worst two incidents, indicating that numerous other incidents have taken place for however many years they may have taken place. Make at least two (2) copies of your Complaint-give the original to the clerk, one copy to the sheriff to serve on the Defendant (the abuser); and keep one for yourself.

While at the Clerk's office, you also need to fill out a Summons to file with the Complaint. This will be served upon the Defendant with your Complaint alerting him that a lawsuit has been filed against him. You will make three (3) copies of this and also fill out an Identifying Information About Defendant-Domestic Violence Action form. This will give the sheriff information about where to find the Defendant and how dangerous he is-for example whether he uses drugs or alcohol. In order to best help the sheriff, be sure to list as many places to locate the Defendant as possible, including where he stays, works, where his parents live, and any other places he goes on a regular basis.

When you file your lawsuit, you will need to pay a filing fee and a fee to the sheriff to serve the complaint and summons on the Defendant. If you can afford this fee, you will take it to the Clerk in the Civil Courts Building when you file your Summons and Complaint. However, if you can not afford this fee, you can fill out a Petition to Sue/Appeal as an Indigent and sign it in front of the clerk. The reality is that little will prevent you from filing a 50B Complaint, even a temporary lack of money. There are a few more papers you will need to fill out before you leave the Clerk's office, among them the Domestic Violence Protective Order Notice of Hearing (tells the Defendant when your hearing is scheduled), the Ex Parte Domestic Violence Protective Order, and the Domestic Violence Protective Order. You will give these forms to the Clerk for the judge to fill out later.

Once you have filed your 50B Complaint, you will have an emergency Ex Parte Hearing (without the Defendant present) with a District Court Judge in the Domestic Violence Civil Court within seventy-two (72) hours. Usually, though, you can go before a judge the same day you file if you file before 12:00 p.m. If it is past regular business hours, you can go to the magistrate's office, who can issue a temporary Ex Parte 50B Order that will later be reviewed by the judge at your Ex Parte Hearing. Often the magistrate will issue a warrant for the batterer's arrest at the same time if the allegations in your Complaint constitute a crime. If so, the police can serve the Defendant with the Complaint, the Notice of Hearing, and the temporary Ex Parte Order when they arrest him.

At your hearing, tell the judge exactly what the abuser has done to physically hurt you or your children or what threats of bodily injury he made to you or your children. Tell the judge why you fear for your safety or the safety of your children. Be direct and to the point-focus on the problems with your abuser. If you have children, you may request temporary custody of your children. You can ask the judge to have the sheriff pick your children up from the abuser or his family if they are with him or his family. At the end of your hearing, the judge will decide whether you have presented sufficient evidence, and, if so, he or she will issue an emergency Ex Parte 50B Order which lasts for ten (10) days. The judge will also schedule a full "10-day" Hearing, where the Defendant (and perhaps his attorney) will be present.

At the "10-day" Hearing, the judge will decide whether to issue a 50B Order for up to one (1) year. In order to reach the decision, the judge will ask the Clerk will have you swear or affirm to tell the truth. Next, the judge will ask you to tell why you think you and/or your children are in danger of domestic violence. Just like in your Ex Parte Hearing, you will need to be as specific and clear as possible and stay focused on the issues related to your abuse. At this time, you may want to present any evidence you may have that will support your allegations of abuse. For example, you may want to bring any torn or bloody clothes; photos of broken furniture or objects; photos of your physical injuries; medical records; police reports (you can subpoena, or legally require, the police officer to come in and explain his or her report); 911 tapes/transcripts; and records of work missed as a result of the abuse. If you have children, you likely will discuss what type of visitation arrangement you want for your children and the abuser. Once you are finished, you or your attorney will ask any witnesses you have either requested to appear or subpoenaed to Court to tell what they know about the domestic violence committed against you and/or your children.

After you and/or your attorney finish presenting your evidence, the Defendant or his attorney might try to dismiss your 50B case, saying that you have not proven enough to support your claim. Do not panic-this is a normal motion for an attorney to make. It is unlikely the judge will dismiss your case at this point if you have presented sufficient evidence to this point. If the Defendant's motion is denied, the Defendant and his witnesses, if any, will take the stand and present their case just as you did previously. After the Defendant and each of his witnesses testify, you and your attorney will have the opportunity to cross-examine them (ask them questions of your own.) The judge may also ask the Defendant or his witnesses some questions, just as he or she has the opportunity to ask you questions during your case. After the Defendant's case has been presented, the judge may ask you or your attorney to give a brief closing argument where either you or your attorney will relay to the judge that you have proven the act(s) of domestic violence with your evidence.

Temporary Custody and Visitation

With your 50B Order, you can request temporary custody of your children. Though the complaint form does not have a section regarding temporary visitation for your abuser, you may want to ask the judge to set up some form of temporary visitation schedule in the 50B Order if the abuser is the father of your children. It is better to have some safe visitation ordered now than to risk unsafe visitation or refusing the abuser all visitation and risk his taking you back to court in a custody case. There are several options for safe visitation, including supervised visitation (where some responsible adult or agency supervises), a third-party exchange (where you choose some person who will be available for you to drop the children off with them until the abuser arrives for his visitation), a safe-place exchange (where you and the abuser meet in a safe place to exchange the children, usually the police department), or therapeutic visitation (where the children and the abuser see each other only in therapy together). Remember, your goal is never to be alone with the abuser during the exchange of the children for any reason-it may be extremely dangerous! In your Order, you may want to make sure there are specific times and days for the visitation. That way, if the abuser does not abide by those dates and times, you can ask the Court to get your children back and to hold him or her in contempt for violating the Order.

Your 50B Order will be valid throughout North Carolina and all the states of the United States. Always keep a copy with you and extras at your place of employment, in your car, and with your friends. If the Order covers your children, you may need to give a copy to their school, daycare and baby-sitter. If you move to a new city, it is a good idea to take a copy to your local police department to make sure it is registered with them. Generally, is a means of deterrence but it is not a force field that magically keeps your abuser from you. You may want to keep an updated safety plan just in case you are confronted by your abuser in the future and you should always be aware of you surroundings to avoid confrontations.

What if the Abuser Violates the 50B Order?

If the abuser violates the Order, it is a Class A1 Misdemeanor in North Carolina and you should call the police immediately, preferably while it is happening. The police must respond under the law and should arrest the Defendant for violating the Order if he is caught doing so when they arrive. If the police do not catch the Defendant, you should go to the magistrate's office as soon as possible and get a warrant for the abuser's arrest. Cooperate with the district attorneys before any hearing and get help from advocates at the Battered Women's Shelter and/or Victim's Assistance. You may want to discuss your case with a Victim's Assistance counselor as soon as possible.

Another remedy available to you is a Contempt Motion which is filed in civil court. Contempt is the power of the court to enforce its orders. You should talk to an attorney before filing a contempt motion in civil court for a 50B violation if the abuser has already been arrested for a crime. It is probably better for you to have the violation proceed through the criminal court if the violations were violent, stalking, or harassing behavior. If it was for a different violation, such as refusing to give you possession of the car, for example, you may want to choose to pursue the option of contempt. There are two (2) types of contempt in civil court-civil contempt and criminal contempt. Civil contempt is where the judge wants to force the Defendant to do something he is supposed to do under the 50B Order. In that situation, the judge might put the Defendant in jail until he pays all his past due child support, for example. Once the Defendant complies, the punishment ends. With criminal contempt, the Defendant "willfully" violates the Court's 50B Order. Here, the Defendant is punished with some set amount of time in jail (up to 30 days) and/or with some set amount of fine which is paid to the court.

To file a contempt motion, you or your attorney will go to the Clerk of Civil Court's office during business hours to file a 50B Motion to Show Cause (also called a "contempt motion"). As a result of your motion, the Defendant will be served with an Order to Appear and Show Cause why he should not be held in contempt of the court's order. The clerk will schedule a contempt hearing and the Defendant will be served with the Order to Appear and Show Cause. The judge will ultimately hold a full hearing to decide whether the Defendant is in contempt of the order.

Getting Help from Support Groups

If you have been in an abusive relationship, it is a good idea to consider counseling for yourself and/or your children. You may want to consult your local Mental Health department or abuse specific support groups. For women who are victims of domestic violence, the Battered Women's Shelter, the Women's Commission, and Victim's Assistance are excellent resources. Overall, United Family Services may be able to assist all persons involved in the abusive relationship, including the children. For the abuser, counseling is also available through organizations such as NOVA. For more information on these and similar groups, please see our links section of this site under Tools and Resources.

Who Needs an Attorney:

Though you do not have to have an attorney to proceed with your Motion for a 50B Domestic Violence Protective Order, it may prove beneficial to have an experienced attorney who has represented other victims going through the same or similar experience as you. Court can be intimidating, particularly when you are faced with the daunting reality of facing your abuser in open court at your "10-day" hearing. You may become nervous or scared and an experienced and reliable attorney can often help calm your fears and put your mind at ease. Though many attorneys offer their services at a reduced rate when representing victims of domestic violence, if the cost is still prohibitive, you may qualify for assistance from Legal Services. You should also remember that should you decide to hire a private attorney, he or she can request attorney's fees from the batterer in your court case. Whether you receive such an award is in the sole discretion of the judge.

If the following circumstances arise in your case, you should not hesitate to consider hiring an attorney:

1. The abuser appears in court with an attorney (If this happens you may want to ask the judge to postpone your hearing (a "continuance") and to extend your emergency Ex Parte 50B Order until the new hearing so that you can hire your own attorney or attempt to obtain one through Legal Aid);
2. Where the evidence is too complex for you (i.e. using medical records or statements in medical records);
3. Where testimony of a doctor or other expert physician is required;
4. Where the last incident(s) of physical abuse were over a year ago;
5. Where the only, or only recent, domestic violence was a threat;
6. Where you can not speak well for yourself, perhaps just because you have been so intimidated from the abuse or you can not speak English well; or
7. Where there are issues regarding child sexual abuse.

When you know you are going to request an attorney, you may want to obtain your emergency Ex Parte 50B Order first and then contact an attorney or Legal Services with your "10-day" hearing date. Either way, remember that time is of the essence and the sooner you hire an attorney, the more time he or she will have to adequately prepare for your case.

Recent Developments in Domestic Violence Law (50-C):

Towards the end of 2004, a new Chapter was signed into law in North Carolina which offers greater service to victims of domestic violence, including closing loopholes for certain crimes as well as making others, such as strangulation, a whole new class of crime.

How does this affect you? Well, specifically, domestic violence offenders are now required to undergo an abuser treatment program, for example. Furthermore, the North Carolina Department of Public Instruction has partnered with our state legislature to create programs for schools as well as allow court to order electronic house arrest as part of an offender's punishment.

In addition, the new law now makes it possible in some instances for a victim to get a restraining order against someone who is stalking him or her, even if the two do not know each other. This is particularly important considering our past law has required some type of prior relationship with the offender. Here, the remedy sought is called a civil no-contact order. Under N.C.G.S. Section 50C-5, a court may enter a temporary or civil no-contact order if the court finds that the victim has suffered unlawful conduct by the Defendant. There is no requirement that the Defendant has caused physical injury to the victim.

"Unlawful conduct" is defined under the statute as the commission of one or more of the following acts upon a person, but does not include acts of self-defense or defense of others:

1. Nonconsensual sexual conduct, including single incidences of nonconsensual sexual conduct. 2. Stalking.

For purposes of obtaining a civil no-contact order, "stalking" is defined as following on more than one occasion or otherwise harassing, as defined in G.S. 14-277.3(c), another person without legal purpose with the intent to do any of the following:

1. Place the person in reasonable fear either for the person's safety or the safety of the person's immediate family or close personal associates. 2. Cause that person to suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment and that in fact causes that person substantial emotional distress.

What are the remedies under a civil no-contact order? Fortunately, there are several remedies set forth in N.C.G.S. Section 50C-5(b). Under the statute, the court may grant one or more of the following forms of relief in its orders under this Chapter:

1. Order the respondent not to visit, assault, molest, or otherwise interfere with the victim.
2. Order the respondent to cease stalking the victim, including at the victim's workplace.
3. Order the respondent to cease harassment of the victim.
4. Order the respondent not to abuse or injure the victim.
5. Order the respondent not to contact the victim by telephone, written communication, or electronic means.
6. Order the respondent to refrain from entering or remaining present at the victim's residence, school, place of employment, or other specified places at times when the victim is present.
7. Order other relief deemed necessary and appropriate by the court.

Similar to 50B Orders, 50C Orders can be temporary or permanent in nature. If granted, a temporary 50C civil no-contact order will be effective for not more than ten (10) days unless the Defendant consents to a longer time period. A permanent civil no-contact order will be effective for a fixed period of time not to exceed one year. A knowing violation of a 50C no-contact order is punishable as contempt of court.

Information provided by:
Gilpin & Hatcher, P.C.

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