Domestic Violence - North Carolina

Call the police, if necessary, and when you are safe, contact the domestic violence relief agency in your county. They will give you advice and, if necessary, direct you to a safe shelter.

Fill-in-the-blank forms prepared by the Administrative Office of the Courts (AOC) are available through the Clerk of Superior Court and are officially designated for pro se (“do-it-yourself”) complainants.

Attorneys are also allowed to use these forms, or lawyers may file custom-tailored complaints. The district court division has original jurisdiction over actions instituted under Chapter 50-B. These AOC forms should not be used if custody is an issue because they do not provide the requisite allegations to establish a solid claim for custody. The same holds true when one is seeking other remedies such as child support or alimony.

Fundamentally, the complaint should enumerate the facts and not simply state the result of the domestic violence. The facts of domestic violence are most compelling to the court when the acts occurred recently (or over a period of time) and the facts are stated with as much specificity as possible. When matters beyond domestic violence are also in dispute, it is best to draft the complaint using separate causes of action to avoid the one-year time limit applicable to domestic violence orders.

Through an ex parte order, an order upon motion and hearing, or a final order, the court may approve any of the remedies listed in the statute. These remedies include:

• giving the aggrieved party possession of the residence and excluding the other spouse from the household
• evicting the party and assisting the aggrieved party in returning to the home
• requiring a party to provide alternate housing.

In addition, support payments for the children and/or the spouse can be ordered as can attorney’s fees. The order may also provide for possession of personal property. As already discussed elsewhere, the court may award temporary child custody as well as provide for visitation, although many judges refuse to include custody awards as part of the relief in a domestic violence case.

Finally, the court may order the party to refrain form the violent acts or to cease harassing or interfering with the other.

In addition, there is a catch-all provision in the Act which allows the court to “grant any protective order or approve any consent agreement to bring about a cessation of acts of domestic violence.” The language with its breadth may in fact provide for the structuring of alternative remedies.

Furthermore, section 50B-7 states that the remedies provided by the Act are not exclusive and are in addition to other statutory remedies.

Where there is a danger of acts of domestic violence to the aggrieved party or a minor child, the court is permitted to enter such ex parte orders as it may deem necessary to protect against such acts. A hearing on an order issued ex parte must be held “within 10 days from the date of issuance of the order or within seven days from the date of service of process on the other party, whichever occurs later.”

Although an ex parte order may provide for temporary custody of any minor child protected by the statute, the AOC domestic violence forms previously referenced do not provide the requisite allegations to establish a solid claim for custody and, therefore, should not be used if custody will be at issue. The same holds true when one is seeking other remedies such as child support or alimony.

In all of these examples, the preferable route to follow is to draft a complaint custom-tailored to the sorts of relief being sought in addition to relief from domestic violence. Some judges are reluctant to issue ex parte orders, although in some counties these orders are commonly entered.

Ex Parte Order Form

If a victim of domestic violence believes that there is a danger of serious and immediate injury to him or her, that person may file a motion for emergency relief. The motion may be filed separately.

In the interest of speed, one may instead include in the verified complaint’s prayer for relief a statement asking that the verified complaint be received as a motion and affidavit supporting both emergency relief and all further court orders. Finally, Rule 65 dealing with injunctions provides an avenue through which to bring the motion.

Where no domestic violence ex parte order is entered, the court must set a hearing after:

• providing five days’ notice to the other party
• OR
• five days from the service of process on the other party, whichever occurs first.

Additionally, the following three requirements must be met:

1. The movant (you, or the person in danger) must believe that there is “danger of serious and immediate injury to himself or herself or a minor child.”
2. The party of course must move for emergency relief.
3. No ex parte order shall have been entered.

If service on the defendant cannot be obtained, the court may have a hearing on the motion without the defendant being present.

If you feel as though you or a loved one is in danger, please, seek immediate help.

Despite this long list of remedies, there are several caveats that you should keep in mind.

Protective orders entered pursuant to the statute will expire at the end of a fixed period, and this period may not exceed one year. There are no exceptions to this rule.

Your only remedy after the one-year period is to request renewal of your order for another year.

The domestic violence statute provides that “upon application of the aggrieved party, a judge may renew the original or any succeeding order for up to one year.”

Furthermore, you must remember that copies of the order must be issued to each party as well as the police or sheriff’s department in the county where the aggrieved party resides. You or your attorney are responsible for ensuring that the proper law enforcement officers receive all the appropriate documents.

An action lies for contempt of court should an order pursuant to Chapter 50B be violated. When there has not been a hearing on enforcement, the statute allows law enforcement personnel to arrest and confine an individual if the officer has probable cause to believe “that the person has violated a court order excluding the person form the residence or household occupied by a victim of domestic violence” or that the person has violated an order “directing the person to refrain from harassing or interfering with the victim.” Although the officer may verify the order’s existence through “communication with appropriate authorities,” it is better and far easier for you to have your own copy of the order to show the officer.

Even with this in hand, however, the officer may be unwilling to use the power vested in him by the order and may instead only intervene when the violation of the order is witnessed by him, reported by an uninvolved eyewitness, or when the effect of the violation is readily apparent, through injury to person or property. A person who knowingly violates a valid protective order shall also be guilty of a misdemeanor.

As with any trial, preparation is essential.

Despite the shortened time frame in which a domestic violence hearing usually takes place, you and your witnesses must be thoroughly prepared.

Your testimony should emphasize the fear you experienced but without lapsing into exaggeration.

Medical reports, photographs, other physical evidence, and the judge’s own examination of the victim’s injuries can supplement the testimony.

Have all of your evidence to support your claims of domestic violence prepared and well organized to present in court. Highlight important facts and show the court in a manner than is easy to read or observe.

Emotional support is available and absolutely essential to everyone involved in any domestic violence issue. There are numerous private mental health providers, including psychologists, psychiatrists, clinical social workers, and other counselors. Many of these individuals are in private practice and others work for non-profit agencies and for the government. Many agencies will provide counseling at a fee based upon your income.