§ 50B-1. Domestic violence; definition.

1. 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, as defined in G.S. 14-277.3A, that rises to such a level as to inflict substantial emotional distress; or
   3. Committing any act defined in G.S. 14-27.21 through G.S. 14-27.33.
2. For purposes of this section, the term "personal relationship" means a relationship wherein the parties involved:
   1. Are current or former spouses;
   2. Are persons of opposite sex who live together or have lived together;
   3. Are related as parents and children, including others acting in loco parentis to a minor child, or as grandparents and grandchildren. For purposes of this subdivision, an aggrieved party may not obtain an order of protection against a child or grandchild under the age of 16;
   4. Have a child in common;
   5. Are current or former household members;
   6. Are persons of the opposite sex who are in a dating relationship or have been in a dating relationship. For purposes of this subdivision, 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.
3. As used in this Chapter, the term "protective order" includes any order entered pursuant to this Chapter upon hearing by the court or consent of the parties.

History

(1979, c. 561, s. 1; 1985, c. 113, s. 1; 1987, c. 828; 1987 (Reg. Sess., 1988), c. 893, ss. 1, 3; 1995 (Reg. Sess., 1996), c. 591, s. 1; 1997-471, s. 1; 2001-518, s. 3; 2003-107, s. 1; 2009-58, s. 5; 2015-181, s. 36.)

Cross References. - As to Unborn Victims of Violence Act (Ethen's Law), see G.S. 14-23.1 et seq.

For the Address Confidentiality Program, see G.S. 15C-1 et seq.

As to privileged nature of communications with agents of rape crisis centers and domestic violence programs, see G.S. 8-53.12.

As to requirement that Attorney General's Office develop reporting system and database on homicides in which victim and offender had personal relationship, as defined by this section, see G.S. 114-2.7.

Effect of Amendments. - Session Laws 2009-58, s. 5, effective June 5, 2009, substituted "G.S. 14-277.3A" for "G.S. 14-277.3" in subdivision (a)(2).

Session Laws 2015-181, s. 36, effective December 1, 2015, in subdivision (a)(3), substituted "G.S. 14-27.21 through G.S. 14-27.33" for "G.S. 14-27.2 through G.S. 14-27.7." For applicability, see editor's note.

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For comment, "North Carolina's Domestic Violence Act: Preventing Spouse Abuse?", see 17 N.C. Cent. L.J. 82 (1988).

For 1997 legislative survey, see 20 Campbell L. Rev. 459.

For article, "When Petitioners Seek Custody in Domestic Violence Court and Why We Should Take Them Seriously," see 47 Wake Forest L. Rev. 935 (2012).

For article, "Criminalizing Coercive Control Within the Limits of Due Process," see 70 Duke L.J. 1321 (2021).

CASE NOTES

Applicability of Chapter. - This Chapter did not become effective until October 1, 1979, and applies only to acts of domestic violence occurring on or after that date. Story v. Story, 57 N.C. App. 509, 291 S.E.2d 923 (1982).

This Chapter is not designed to establish alternative grounds for jurisdiction over custody disputes apart from those set forth in Chapter 50A. Danna v. Danna, 88 N.C. App. 680, 364 S.E.2d 694, cert. denied, 322 N.C. 479, 370 S.E.2d 221 (1988).

Jurisdiction over Custody and Visitation Rights Is Governed by Chapter 50A. - Whenever the relief sought under this Chapter is a determination of custody or visitation rights, the existence of subject matter jurisdiction over the action is governed by Chapter 50A, just as it is in any other custody dispute. Danna v. Danna, 88 N.C. App. 680, 364 S.E.2d 694, cert. denied, 322 N.C. 479, 370 S.E.2d 221 (1988).

Acts of Domestic Violence When Considering Child's Best Interests. - Although a mother voluntarily dismissed her domestic violence complaint at the time a memorandum of judgment was entered regarding custody, a trial court did not abuse its discretion in considering the claim when the father filed a motion for modification of custody, pursuant to G.S. 50-13.7, because "acts of domestic violence between the parties" was one of the factors the trial court was to consider, pursuant to G.S. 50-13.2(a), when making findings as to the best interests of the child. Balawejder v. Balawejder, 216 N.C. App. 301, 721 S.E.2d 679 (2011).

This Chapter does not establish an affirmative duty on the part of law enforcement agencies to protect victims or threatened victims of domestic violence upon request; its effect is limited to enabling such persons to more readily obtain the court's protection and such assistance as any local agency approached sees fit to give. Braswell v. Braswell, 98 N.C. App. 231, 390 S.E.2d 752, modified on other grounds, 330 N.C. 363, 410 S.E.2d 897 (1991).

This Chapter does not establish victims of domestic violence as a protected class of persons or extend employment security status to such persons, and domestic violence victims were not members of a protected class or otherwise entitled to special treatment; the termination of the at will employment of a domestic violence victim did not violate public policy, and a trial court's dismissal of his wrongful termination suit was affirmed. Imes v. City of Asheville, 163 N.C. App. 668, 594 S.E.2d 397 (2004), aff'd, 359 N.C. 182, 606 S.E.2d 117 (2004).

Personal Relationship. - Term "over time", construed broadly, categorically does not preclude a short-term romantic relationship, from ever being considered a "dating relationship"; instead, the question of what constitutes the minimum conduct to establish a dating relationship is necessarily fact sensitive and thus warrants a factor approach rather than a definitional approach. Therefore, a trial court properly entered a domestic violence protective order against a former boyfriend because it determined that the parties had a dating relationship, even though it only lasted for 3 weeks, because the parties' relationship exceeded the minimal social interpersonal bonding of casual acquaintances or of contacts through ordinary fraternization. Thomas v. Williams, 242 N.C. App. 236, 773 S.E.2d 900 (2015).

Weapons surrendered under a domestic violence protective order should have been returned because convictions for stalking and communicating threats did not constitute "misdemeanor crimes of domestic violence," and federal law did not preclude the gun owner from having or possessing a firearm, even if the owner and a victim were in a "personal relationship." Underwood v. Hudson, 244 N.C. App. 535, 781 S.E.2d 295 (2015).

In Loco Parentis. - Vacating of a domestic violence protection order, and remand of the case for entry of a new order, was appropriate because the findings of fact did not support the trial court's conclusion that the stepparent - who provided support and maintenance to the stepchild - never acted in loco parentis to the stepchild, rendering the stepparent unable to obtain an order against the stepchild. Gibson v. Lopez, - N.C. App. - , - S.E.2d - (Oct. 6, 2020).

Subjective Fear of Imminent Serious Bodily Injury - This section imposes a subjective test, rather than an objective reasonableness test, to determine whether an act of domestic violence has occurred. Brandon v. Brandon, 132 N.C. App. 646, 513 S.E.2d 589 (1999).

Evidence of Imminent Serious Bodily Injury - The evidence supported a finding that the husband threatened imminent serious bodily injury to the wife, where a deputy had to stop the husband from entering a rental house owned by the parties, the husband threatened the wife in the deputies' presence, and his subsequent threat to kill her was relayed to the wife. Brandon v. Brandon, 132 N.C. App. 646, 513 S.E.2d 589 (1999).

Fear of Continued Harassment Supported Protective Order for Domestic Violence. - Protective order against a husband for acts of domestic violence was supported by the evidence as, inter alia, the husband yelled at the wife "Would you like to hurt me? Would you like to kill and hit me? Would that make you feel better?," the husband banged a stapler on a counter, threw a water bottle in the wife's direction, and refused to leave their jointly-owned business during the late night hours, and the wife was afraid of the husband and thought he was "out of control." Wornstaff v. Wornstaff, 179 N.C. App. 516, 634 S.E.2d 567 (2006), aff'd, 361 N.C. 230, 641 S.E.2d 301 (2007).

In a case involving the issuance of a domestic violence protective order, there was sufficient evidence that there was a fear of continued harassment that caused the victim substantial distress, even though the victim only testified about the contents of one voicemail. The evidence showed that the victim broke off the relationship due to fear, the boyfriend continued to contact her repeatedly, despite instructions not to do so, and the victim consequently suffered from anxiety and sleeplessness and altered her daily living activities. Thomas v. Williams, 242 N.C. App. 236, 773 S.E.2d 900 (2015).

It was not error to issue a domestic violence protection order because a husband's text messages causing his wife's fear of continued harassment, under G.S. 50B-1(a)(2) and G.S. 14-277.3A(b)(2), created "substantial emotional distress." Stancill v. Stancill, 241 N.C. App. 529, 773 S.E.2d 890 (2015).

It was not error to issue an ex parte domestic violence protection order because an G.S. 50B-1(a)(2) "act of domestic violence" was sufficiently found, as a husband's text messages put his wife in fear of continued harassment inflicting substantial emotional distress. Stancill v. Stancill, 241 N.C. App. 529, 773 S.E.2d 890 (2015).

Declaratory Relief. - Appellate court erred in reversing a trial court's denial of a husband's request for a declaratory judgment on the constitutionality of G.S. 50B-1 et seq., because G.S. 1-257 permitted a trial court, in the exercise of its discretion, to decline a request for declaratory relief when (1) the requested declaration would serve no useful purpose in clarifying or settling the legal relations at issue, or (2) the requested declaration would not terminate or afford relief from the uncertainty, insecurity, or controversy giving rise to the proceeding; in the instant case the trial court had dismissed a wife's motion for a domestic violence protective order against the husband, and because the husband was not subject to the provisions of the DVA at the time the trial court addressed his counterclaim and because he made no showing that he was threatened with further litigation under the DVA, a declaration as to the constitutionality of the DVA could not have altered the husband's legal position. Augur v. Augur, 356 N.C. 582, 573 S.E.2d 125 (2002).

Collateral estoppel effect of findings in domestic violence protective order entered under G.S. 50B-1(a), finding that the mother was responsible for the incident, collaterally estopped the finding in the custody case that the father was responsible for the incident; when the protective order was not appealed the collateral legal consequences of that order became final, precluding reconsideration of the order in the custody action under G.S. 50-13.2. Doyle v. Doyle, 176 N.C. App. 547, 626 S.E.2d 845 (2006).

Personal Relationship. - Defendant received a trial free of error because any evidence offered by the State to show that he took advantage of a position of trust or confidence could be used to establish a statutory aggravating factor where the statutory definition of a "personal relationship" did not require proof of either a position of trust or confidence or the abuse of that position, the record lacked sufficient evidence to make a determination on defendant's ineffective assistance of counsel claim, and defendant's habitual felon status was not void where he was validly convicted of felony violation of a domestic violence protective order. State v. Edgerton, 242 N.C. App. 460, 774 S.E.2d 927 (2015).

Domestic violence protective order entered pursuant to G.S. 50B-3 was erroneous because there was no competent evidence that the father against whom the order was entered had placed a member of the mother's family in fear of (1) imminent serious bodily injury or (2) continued harassment that rose to such a level as to inflict substantial emotional distress; the fact that there was an investigation by the Department of Social Service was not relevant where there was no evidence presented regarding what any alleged investigation revealed. The trial court admitted a statement made to the mother by her son for the limited purpose of explaining why the mother left the home, and, thus, the statement was not admitted to prove that the father committed the act at issue, and was not competent to support a finding of domestic violence by the father. Burress v. Burress, 195 N.C. App. 447, 672 S.E.2d 732 (2009).

TRO Was Not a "Protective Order." - Trial court erred in enhancing defendant's sentence under G.S. 50B-4.1(d) for his knowing violation of a valid protective order because a temporary restraining order (TRO) was not a valid domestic violence protective order under Chapter 50B but an ex parte TRO entered under N.C. R. Civ. P. 65(b), and the order was not entered upon hearing by the trial court or consent of the parties as required under G.S. 50B-1(c); only a valid protective order entered under Chapter 50B can be used to enhance a defendant's sentence under G.S. 50B-4.1(d), and Chapter 50B requires that a defendant be given notice and the opportunity to be heard before entry of a protective order. State v. Byrd, 363 N.C. 214, 675 S.E.2d 323 (2009).

Insufficient Evidence of Domestic Violence. - Trial court erred by issuing a domestic violence order of protection, because defendant ex-husband's act of hiring a PI service to conduct surveillance in order to determine if plaintiff ex-wife was cohabiting was not harassment and did not support a conclusion that defendant committed an act of domestic violence under G.S. 50-1(a). In addition, the "act" of hiring a PI service for surveillance was not enough to support the trial court's finding of "substantial emotional distress" under G.S. 50B-1(a)(2). Kennedy v. Morgan, 221 N.C. App. 219, 726 S.E.2d 193 (2012).

Trial court's findings of fact did not support a finding of domestic violence because trial court's finding that the husband was listening to the wife outside her bedroom door, then after she locked the door, the husband repeatedly pounded on the door and broke into the wife's bedroom, causing her fear of physical assault was not supported by competent evidence, as the evidence showed that the husband used a key to unlock the door and did not break into the wife's bedroom. Martin v. Martin, - N.C. App. - , 832 S.E.2d 191 (2019).

Wife's testimony regarding the husband's anger issues showed that he had a flashpoint temper but was not sufficient to show an act of domestic violence. Martin v. Martin, - N.C. App. - , 832 S.E.2d 191 (2019).

Sufficient Evidence of Domestic Violence. - Father intentionally caused bodily injury to a minor child with whom he resided when he struck one child and hit the other child in the mouth, causing her to suffer a busted lip, and the trial court properly characterized the father's actions as domestic violence. In re A.L.T., 241 N.C. App. 443, 774 S.E.2d 316 (2015).

Sufficient evidence showed a mother who sought a domestic violence protective order suffered substantial emotional distress due to a father's text messages because the mother testified the father's repeated contact caused the mother to feel terror, to change the mother's housing arrangements, and to alter the mother's daily routine. Bunting v. Bunting, - N.C. App. - , 832 S.E.2d 183 (2019).

Matter Remanded to Correct Clerical Errors. - Because clerical errors did not affect the sentences imposed, and because failure to correct those errors could prejudice defendant, the matter was remanded to the trial court for the correction of the clerical errors; none of the original judgments suspending sentence supported the trial court's findings, and the trial court "inadvertently" checked a box on the preprinted forms. State v. Peele, 246 N.C. App. 159, 783 S.E.2d 28 (2016).

Applied in In re E.H., 227 N.C. App. 525, 742 S.E.2d 844 (2013); State v. Poole, 228 N.C. App. 248, 745 S.E.2d 26 (2013), dismissed and review denied 749 S.E.2d 885, 2013 N.C. LEXIS 1282; Rudder v. Rudder, - N.C. App. - , 754 S.E.2d 678 (2014), amended 759 S.E.2d 321, 2014 N.C. App. LEXIS 562 (N.C. Ct. App. 2014).

Cited in State v. Getward, 89 N.C. App. 26, 365 S.E.2d 209 (1988); Rudder v. Rudder, 234 N.C. App. 173, 759 S.E.2d 321 (2014); Forehand v. Forehand, 238 N.C. App. 270, 767 S.E.2d 125 (2014).

§ 50B-2. Institution of civil action; motion for emergency relief; temporary orders; temporary custody.

1. Any person residing in this State may seek relief under this Chapter by filing a civil action or by filing a motion in any existing action filed under Chapter 50 of the General Statutes alleging acts of domestic violence against himself or herself or a minor child who resides with or is in the custody of such person. Any aggrieved party entitled to relief under this Chapter may file a civil action and proceed pro se, without the assistance of legal counsel. The district court division of the General Court of Justice shall have original jurisdiction over actions instituted under this Chapter. Any action for a domestic violence protective order requires that a summons be issued and served. The summons issued pursuant to this Chapter shall require the defendant to answer within 10 days of the date of service. Attachments to the summons shall include the complaint, notice of hearing, any temporary or ex parte order that has been issued, and other papers through the appropriate law enforcement agency where the defendant is to be served. In compliance with the federal Violence Against Women Act, no court costs or attorneys' fees shall be assessed for the filing, issuance, registration, or service of a protective order or petition for a protective order or witness subpoena, except as provided in G.S. 1A-1, Rule 11.
2. Emergency Relief. - A party may move the court for emergency relief if he or she believes there is a danger of serious and immediate injury to himself or herself or a minor child. A hearing on a motion for emergency relief, where no ex parte order is entered, shall be held after five days' notice of the hearing to the other party or after five days from the date of service of process on the other party, whichever occurs first, provided, however, that no hearing shall be required if the service of process is not completed on the other party. If the party is proceeding pro se and does not request an ex parte hearing, the clerk shall set a date for hearing and issue a notice of hearing within the time periods provided in this subsection, and shall effect service of the summons, complaint, notice, and other papers through the appropriate law enforcement agency where the defendant is to be served.
3. Ex Parte Orders. -
   1. Prior to the hearing, if it clearly appears to the court from specific facts shown, that there is a danger of acts of domestic violence against the aggrieved party or a minor child, the court may enter orders as it deems necessary to protect the aggrieved party or minor children from those acts.
   2. A temporary order for custody ex parte and prior to service of process and notice shall not be entered unless the court finds that the child is exposed to a substantial risk of physical or emotional injury or sexual abuse.
   3. If the court finds that the child is exposed to a substantial risk of physical or emotional injury or sexual abuse, upon request of the aggrieved party, the court shall consider and may order the other party to (i) stay away from a minor child, or (ii) return a minor child to, or not remove a minor child from, the physical care of a parent or person in loco parentis, if the court finds that the order is in the best interest of the minor child and is necessary for the safety of the minor child.
   4. If the court determines that it is in the best interest of the minor child for the other party to have contact with the minor child or children, the court shall issue an order designed to protect the safety and well-being of the minor child and the aggrieved party. The order shall specify the terms of contact between the other party and the minor child and may include a specific schedule of time and location of exchange of the minor child, supervision by a third party or supervised visitation center, and any other conditions that will ensure both the well-being of the minor child and the aggrieved party.
   5. Upon the issuance of an ex parte order under this subsection, a hearing shall 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. A continuance shall be limited to one extension of no more than 10 days unless all parties consent or good cause is shown. The hearing shall have priority on the court calendar.
   6. If an aggrieved party acting pro se requests ex parte relief, the clerk of superior court shall schedule an ex parte hearing with the district court division of the General Court of Justice within 72 hours of the filing for said relief, or by the end of the next day on which the district court is in session in the county in which the action was filed, whichever shall first occur. If the district court is not in session in said county, the aggrieved party may contact the clerk of superior court in any other county within the same judicial district who shall schedule an ex parte hearing with the district court division of the General Court of Justice by the end of the next day on which said court division is in session in that county.
   7. Upon the issuance of an ex parte order under this subsection, if the party is proceeding pro se, the Clerk shall set a date for hearing and issue a notice of hearing within the time periods provided in this subsection, and shall effect service of the summons, complaint, notice, order and other papers through the appropriate law enforcement agency where the defendant is to be served.
4. Ex Parte Orders by Authorized Magistrate. - The chief district court judge may authorize a magistrate or magistrates to hear any motions for emergency relief ex parte. Prior to the hearing, if the magistrate determines that at the time the party is seeking emergency relief ex parte the district court is not in session and a district court judge is not and will not be available to hear the motion for a period of four or more hours, the motion may be heard by the magistrate. If it clearly appears to the magistrate from specific facts shown that there is a danger of acts of domestic violence against the aggrieved party or a minor child, the magistrate may enter orders as it deems necessary to protect the aggrieved party or minor children from those acts, except that a temporary order for custody ex parte and prior to service of process and notice shall not be entered unless the magistrate finds that the child is exposed to a substantial risk of physical or emotional injury or sexual abuse. If the magistrate finds that the child is exposed to a substantial risk of physical or emotional injury or sexual abuse, upon request of the aggrieved party, the magistrate shall consider and may order the other party to stay away from a minor child, or to return a minor child to, or not remove a minor child from, the physical care of a parent or person in loco parentis, if the magistrate finds that the order is in the best interest of the minor child and is necessary for the safety of the minor child. If the magistrate determines that it is in the best interest of the minor child for the other party to have contact with the minor child or children, the magistrate shall issue an order designed to protect the safety and well-being of the minor child and the aggrieved party. The order shall specify the terms of contact between the other party and the minor child and may include a specific schedule of time and location of exchange of the minor child, supervision by a third party or supervised visitation center, and any other conditions that will ensure both the well-being of the minor child and the aggrieved party. An ex parte order entered under this subsection shall expire and the magistrate shall schedule an ex parte hearing before a district court judge by the end of the next day on which the district court is in session in the county in which the action was filed. Ex parte orders entered by the district court judge pursuant to this subsection shall be entered and scheduled in accordance with subsection (c) of this section.
5. The authority granted to authorized magistrates to award temporary child custody pursuant to subsection (c1) of this section and pursuant to G.S. 50B-3(a)(4) is granted subject to custody rules to be established by the supervising chief district judge of each judicial district.
6. Pro Se Forms. - The clerk of superior court of each county shall provide to pro se complainants all forms that are necessary or appropriate to enable them to proceed pro se pursuant to this section. The clerk shall, whenever feasible, provide a private area for complainants to fill out forms and make inquiries. The clerk shall provide a supply of pro se forms to authorized magistrates who shall make the forms available to complainants seeking relief under subsection (c1) of this section.
7. All documents filed, issued, registered, or served in an action under this Chapter relating to an ex parte, emergency, or permanent domestic violence protective order may be filed electronically.

History

(1979, c. 561, s. 1; 1985, c. 113, ss. 2, 3; 1987 (Reg. Sess., 1988), c. 893, s. 2; 1989, c. 461, s. 1; 1994, Ex. Sess., c. 4, s. 1; 1997-471, s. 2; 2001-518, s. 4; 2002-126, s. 29A.6(a); 2004-186, ss. 17.2, 19.1; 2009-342, s. 2; 2012-20, s. 1; 2013-390, s. 1; 2015-62, s. 3(b); 2021-47, s. 10(i).)

Cross References. - As to electronic filing in Chapter 50B and Chapter 50C cases, see G.S. 7A-343.6.

Editor's Note. - Session Laws 2021-47, s. 10(m), made the deletion of the former second and third sentences of subsection (e) of this section by Session Laws 2021-47, s. 10(i), effective June 18, 2021, and applicable to proceedings occurring on or after that date.

Session Laws 2021-47, s. 18, is a severability clause.

Effect of Amendments. - Session Laws 2004-186, ss. 17.2 and 19.1, rewrote subsections (c) and (c1); substituted "pursuant to subsection (c1)" for "to pursuant subsection (c1)" in subsection (c2); and inserted the second sentence and made minor stylistic changes in subsection (d). See editor's note for effective dates and applicability.

Session Laws 2012-20, s. 1, effective October 1, 2012, added the subdivision (1) to (7) designations in subsection (c); added the subdivision (i) and (ii) designations in subdivision (c)(3); in subdivision (c)(1), substituted the closing period for "provided, however, that"; added the second and third sentences in subdivision (c)(5); and made related stylistic changes. For applicability, see editor's note.

Session Laws 2013-390, s. 1, effective October 1, 2013, substituted the present last sentence of subsection (a) for the former provision which read: "No court costs shall be assessed for the filing, issuance, registration, or service of a protective order or petition for a protective order or witness subpoena in compliance with the Violence Against Women Act, 42 U.S.C. § 3796gg-5." For applicability, see editor's note.

Session Laws 2015-62, s. 3(b), effective December 1, 2015, added subsection (e). For applicability, see editor's note.

Session Laws 2021-47, s. 10(i), deleted the former second and third sentences of subsection (e), which read "Hearings held to consider ex parte relief pursuant to subsection (c) of this section may be held via video conference. Hearings held to consider emergency or permanent relief pursuant to subsections (a) or (b) of this section shall not be held via video conference." For effective date and applicability, see editor's note.

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For 1997 legislative survey, see 20 Campbell L. Rev. 459 (1998).

CASE NOTES

The dismissal of a temporary ex parte domestic violence protective order was interlocutory, did not affect a substantial right, and therefore was not immediately appealable. Hayes v. Hayes, 139 N.C. App. 831, 534 S.E.2d 639 (2000).

Time Limits. - Trial court lacked authority to enter a one-year domestic violence protective order (DVPO) that was based upon the same complaint as an ex parte DVPO because, at that time, the ex parte DVPO expired without being renewed and had been in effect for more than a year. Rudder v. Rudder, 234 N.C. App. 173, 759 S.E.2d 321 (2014).

Renewal of Order. - Inclusion of a residency requirement in the statutory provision governing the initial issuance of a domestic violence protective order (DVPO) coupled with the omission of such a requirement in the statute authorizing the renewal of a DVPO demonstrates a legislative intent to permit such a renewal regardless of whether the moving party remains a North Carolina resident. Comstock v. Comstock, 244 N.C. App. 20, 780 S.E.2d 183 (2015).

Judicial Immunity Granted. - Whether or not a magistrate's alleged comments made in connection with plaintiff's arrest regarding a domestic violence matter were appropriate, they were made in connection with judicial acts within the magistrate's jurisdiction; he was, therefore, entitled to immunity, and his motion to dismiss plaintiff's 42 U.S.C.S. § 1983 claim was granted. Cole v. Summey, 329 F. Supp. 2d 591 (M.D.N.C. 2004).

Allegations Sufficient to Withstand Motion to Dismiss. - Pro se complaint was improperly dismissed for failure to state a claim where plaintiff alleged that defendant was verbally abusive to her and her children, that her daughter had reported allegations of sexual abuse committed by defendant to her school counselor, and the additional alleged acts of abuse were sufficiently detailed so as to give the court and defendant a fair idea of what plaintiff was complaining. Quackenbush v. Groat, - N.C. App. - , 844 S.E.2d 26 (2020).

Father's text messages to a mother supported a domestic violence protective order because, as the father had no custody of the parties' children, the father's messages allegedly concerning the children served no legitimate purpose. Bunting v. Bunting, - N.C. App. - , 832 S.E.2d 183 (2019).

Due Process Violation. - It was not error to issue an ex parte domestic violence protection order because an G.S. 50B-1(a)(2) "act of domestic violence" was sufficiently found, as a husband's text messages put his wife in fear of continued harassment inflicting substantial emotional distress. Stancill v. Stancill, 241 N.C. App. 529, 773 S.E.2d 890 (2015).

Trial court did not exceed the court's jurisdiction in entering ex parte domestic violence protective orders and the proceedings comported with the statute because the father had at least five days in which to submit a formal, written answer, had an opportunity to respond to the mother's allegations, was permitted to appear and testify even though he had not filed an answer, and his admissions and the mother's testimony constituted competent evidence to justify the trial court's findings of fact. Henderson v. Henderson, 234 N.C. App. 129, 758 S.E.2d 681 (2014).

Trial court properly entered an ex parte domestic violence protection order because the combination of two of its findings were minimally adequate to supply the required "specific facts" necessary to support the conclusion that defendant committed acts of domestic violence against plaintiff and that there was a danger of acts of domestic violence against plaintiff. Rudder v. Rudder, - N.C. App. - , 754 S.E.2d 678 (2014), amended 759 S.E.2d 321, 2014 N.C. App. LEXIS 562 (N.C. Ct. App. 2014).

Insufficient Evidence to Support Domestic Violence Order of Protection. - Trial court erred by issuing a domestic violence order of protection, because defendant ex-husband's act of hiring a PI service to conduct surveillance in order to determine if plaintiff ex-wife was cohabiting was not harassment and did not support a conclusion that defendant committed an act of domestic violence under G.S. 50B-2(a). Kennedy v. Morgan, 221 N.C. App. 219, 726 S.E.2d 193 (2012).

Presumed Facts Found in Ex Parte Domestic Violence Order of Protection Supported by Competent Evidence. - Court of appeals could presume that the facts as found in an ex parte domestic violence order of protection (DVPO) were supported by competent evidence because the record reflected that an ex parte hearing was held, and the wife appeared pro se before the trial court to request the ex parte DVPO, so presumably she offered evidence; although the record did not contain any transcript of the ex parte hearing, the ex parte DVPO provided that the matter was heard by the trial judge, and given the expedited nature of the ex parte hearing process, it was a possibility that no transcript of that hearing was available to the parties. Hensey v. Hennessy, 201 N.C. App. 56, 685 S.E.2d 541 (2009).

Sufficient Evidence Supported Ex Parte Domestic Violence Order of Protection. - Trial court did not err in its conclusion that a wife was in danger of acts of domestic violence and in need of protection because the findings of fact showed that on the Saturday prior to the Monday on which the wife filed her complaint, her husband had broken and hidden her cell phone and heckled her, the husband then put the wife in a headlock, dragged her, and banged her into a wall, and when the wife got away from the husband, he chased her until she reached a neighbor's home to call for help; in addition, the wife was 29 weeks pregnant with the husband's child; the wife and husband had other pending domestic violence proceedings, and the wife believed that she was in serious, immediate danger.. Hensey v. Hennessy, 201 N.C. App. 56, 685 S.E.2d 541 (2009).

Findings of Fact Appropriate. - Ex parte domestic violence order of protection (DVPO) did not fail to include findings of fact when the trial court simply incorporated the allegations of the complaint into its order, rather than setting forth a separate statement of its factual findings, because while it was preferable for the trial court to set forth the specific facts that supported its order separately, instead of by reference to the complaint, the ex parte DVPO, read in conjunction with the complaint, provided sufficient information upon which the court of appeals could review the trial court's decision to issue the ex parte DVPO; despite the absence of specific statutory language excluding ex parte DVPOs from the coverage of the findings and conclusions requirement of G.S. 1A-1, N.C. R. Civ. P. 52, such orders need not contain findings and conclusions that fully satisfy the requirements of that provision. Hensey v. Hennessy, 201 N.C. App. 56, 685 S.E.2d 541 (2009).

Applied in Smart v. Smart, 59 N.C. App. 533, 297 S.E.2d 135 (1982).

Cited in Braswell v. Braswell, 98 N.C. App. 231, 390 S.E.2d 752 (1990); Anderson v. Anderson, 101 N.C. App. 682, 400 S.E.2d 764 (1991); Brandon v. Brandon, 132 N.C. App. 646, 513 S.E.2d 589 (1999); State v. Byrd, 363 N.C. 214, 675 S.E.2d 323 (2009); State v. Brunson, 221 N.C. App. 614, 727 S.E.2d 916 (2012); State v. Poole, 228 N.C. App. 248, 745 S.E.2d 26 (2013), dismissed and review denied 749 S.E.2d 885, 2013 N.C. LEXIS 1282; Davis v. Davis, 229 N.C. App. 494, 748 S.E.2d 594 (2013); Dechkovskaia v. Dechkovskaia, 232 N.C. App. 350, 754 S.E.2d 831 (2014), review denied, 758 S.E.2d 870, 2014 N.C. LEXIS 436 (2014).

§ 50B-3. Relief.

1. If the court, including magistrates as authorized under G.S. 50B-2(c1), finds that an act of domestic violence has occurred, the court shall grant a protective order restraining the defendant from further acts of domestic violence. A protective order may include any of the following types of relief:
   1. Direct a party to refrain from such acts.
   2. Grant to a party possession of the residence or household of the parties and exclude the other party from the residence or household.
   3. Require a party to provide a spouse and his or her children suitable alternate housing.
   4. Award temporary custody of minor children and establish temporary visitation rights pursuant to G.S. 50B-2 if the order is granted ex parte, and pursuant to subsection (a1) of this section if the order is granted after notice or service of process.
   5. Order the eviction of a party from the residence or household and assistance to the victim in returning to it.
   6. Order either party to make payments for the support of a minor child as required by law.
   7. Order either party to make payments for the support of a spouse as required by law.
   8. Provide for possession of personal property of the parties, including the care, custody, and control of any animal owned, possessed, kept, or held as a pet by either party or minor child residing in the household.
   9. Order a party to refrain from doing any or all of the following:
      1. Threatening, abusing, or following the other party.
      2. Harassing the other party, including by telephone, visiting the home or workplace, or other means.
      3. Otherwise interfering with the other party.
   10. Award attorney's fees to either party.
   11. Prohibit a party from purchasing a firearm 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 if the program is approved by the Domestic Violence Commission.
   13. Include any additional prohibitions or requirements the court deems necessary to protect any party or any minor child.
2. Upon the request of either party at a hearing after notice or service of process, the court shall consider and may award temporary custody of minor children and establish temporary visitation rights as follows:
   1. In awarding custody or visitation rights, the court shall base its decision on the best interest of the minor child with particular consideration given to the safety of the minor child.
   2. For purposes of determining custody and visitation issues, the court shall consider:
      1. Whether the minor child was exposed to a substantial risk of physical or emotional injury or sexual abuse.
      2. Whether the minor child was present during acts of domestic violence.
      3. Whether a weapon was used or threatened to be used during any act of domestic violence.
      4. Whether a party caused or attempted to cause serious bodily injury to the aggrieved party or the minor child.
      5. Whether a party placed the aggrieved party or the minor child in reasonable fear of imminent serious bodily injury.
      6. Whether a party caused an aggrieved party to engage involuntarily in sexual relations by force, threat, or duress.
      7. Whether there is a pattern of abuse against an aggrieved party or the minor child.
      8. Whether a party has abused or endangered the minor child during visitation.
      9. Whether a party has used visitation as an opportunity to abuse or harass the aggrieved party.
      10. Whether a party has improperly concealed or detained the minor child.
      11. Whether a party has otherwise acted in a manner that is not in the best interest of the minor child.
   3. If the court awards custody, the court shall also consider whether visitation is in the best interest of the minor child. If ordering visitation, the court shall provide for the safety and well-being of the minor child and the safety of the aggrieved party. The court may consider any of the following:
      1. Ordering an exchange of the minor child to occur in a protected setting or in the presence of an appropriate third party.
      2. Ordering visitation supervised by an appropriate third party, or at a supervised visitation center or other approved agency.
      3. Ordering the noncustodial parent to attend and complete, to the satisfaction of the court, an abuser treatment program as a condition of visitation.
      4. Ordering either or both parents to abstain from possession or consumption of alcohol or controlled substances during the visitation or for 24 hours preceding an exchange of the minor child.
      5. Ordering the noncustodial parent to pay the costs of supervised visitation.
      6. Prohibiting overnight visitation.
      7. Requiring a bond from the noncustodial parent for the return and safety of the minor child.
      8. Ordering an investigation or appointment of a guardian ad litem or attorney for the minor child.
      9. Imposing any other condition that is deemed necessary to provide for the safety and well-being of the minor child and the safety of the aggrieved party.
   4. A temporary custody order entered pursuant to this Chapter shall be without prejudice and shall be for a fixed period of time not to exceed one year. Nothing in this section shall be construed to affect the right of the parties to a de novo hearing under Chapter 50 of the General Statutes.
3. If the court orders that the defendant attend an abuser treatment program pursuant to G.S. 50B-3(a)(12), the defendant shall begin regular attendance of the program within 60 days of the entry of the order. When ordering a defendant to attend an abuser treatment program, the court shall also specify a date and time for a review hearing with the court to assess whether the defendant has complied with that part of the order. The review hearing shall be held as soon as practicable after 60 days from the entry of the original order. The date of the review shall be set at the same time as the entry of the original order, and the clerk shall issue a Notice of Hearing for the compliance review to be given to the defendant and filed with the court on the same day as the entry of the order. If a defendant is not present in court at the time the order to attend an abuser treatment program is entered and the Notice of Hearing for review is filed, the clerk shall serve a copy of the Notice of Hearing together with the service of the order. The plaintiff may, but is not required to, attend the 60-day review hearing.
4. At any time prior to the 60-day review hearing set forth in subsection (a2) of this section, a defendant who is ordered to attend an abuser treatment program may present to the clerk a written statement from an abuser treatment program showing that the defendant has enrolled in and begun regular attendance in an abuser treatment program. Upon receipt of the written statement, the clerk shall remove the 60-day review hearing from the court docket, and the defendant shall not be required to appear for the 60-day review hearing. The clerk shall also notify the plaintiff that the defendant has complied with the order and that no 60-day review hearing will occur.
5. Protective orders entered pursuant to this Chapter shall 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 two years, including an order that previously has been renewed, upon a motion by the aggrieved party filed before the expiration of the current order; provided, however, that a temporary award of custody entered as part of a protective order may not be renewed to extend a temporary award of custody beyond the maximum one-year period. The court may renew a protective order for good cause. The commission of an act as defined in G.S. 50B-1(a) by the defendant after entry of the current order is not required for an order to be renewed. Protective orders entered, including consent orders, shall not be mutual in nature except where both parties file a claim and the court makes detailed findings of fact indicating that both parties acted as aggressors, that neither party acted primarily in self-defense, and that the right of each party to due process is preserved. Protective orders entered pursuant to this Chapter expire at 11:59 P.M. on the indicated expiration date, unless specifically stated otherwise in the order.
6. A consent protective order may be entered pursuant to this Chapter without findings of fact and conclusions of law if the parties agree in writing that no findings of fact and conclusions of law will be included in the consent protective order. The consent protective order shall be valid and enforceable and shall have the same force and effect as a protective order entered with findings of fact and conclusions of law.
7. Upon the written request of either party at a hearing after notice or service of process, the court may modify any protective order entered pursuant to this Chapter after a finding of good cause.
8. A copy of any order entered and filed under this Article shall be issued to each party. Law enforcement agencies shall accept receipt of copies of the order issued by the clerk of court by electronic or facsimile transmission for service on defendants. In addition, a copy of the order shall be issued promptly to and retained by the police department of the city of the victim's residence. If the victim does not reside in a city or resides in a city with no police department, copies shall be issued promptly to and retained by the sheriff, and the county police department, if any, of the county in which the victim resides. If the defendant is ordered to stay away from the child's school, a copy of the order shall be delivered promptly by the sheriff to the principal or, in the principal's absence, the assistant principal or the principal's designee of each school named in the order.
9. When a protective order issued under this Chapter is filed with the Clerk of Superior Court, the clerk shall provide to the applicant an informational sheet developed by the Administrative Office of the Courts that includes:
   1. Domestic violence agencies and services.
   2. Sexual assault agencies and services.
   3. Victims' compensation services.
   4. Legal aid services.
   5. Address confidentiality services.
   6. An explanation of the plaintiff's right to apply for a permit under G.S. 14-415.15.
10. The sheriff of the county where a domestic violence order is entered shall provide for prompt entry of the order into the National Crime Information Center registry and shall provide for access of such orders to magistrates on a 24-hour-a-day basis. Modifications, terminations, renewals, and dismissals of the order shall also be promptly entered.

b1. Cruelly treating or abusing an animal owned, possessed, kept, or held as a pet by either party or minor child residing in the household.

If the court grants visitation, the order shall specify dates and times for the visitation to take place or other specific parameters or conditions that are appropriate. A person, supervised visitation center, or other agency may be approved to supervise visitation after appearing in court or filing an affidavit accepting that responsibility and acknowledging accountability to the court.

History

(1979, c. 561, s. 1; 1985, c. 463; 1994, Ex. Sess., c. 4, s. 2; 1995, c. 527, s. 1; 1995 (Reg. Sess., 1996), c. 591, s. 2; c. 742, s. 42.1.; 1999-23, s. 1; 2000-125, s. 9; 2002-105, s. 2; 2002-126, s. 29A.6(b); 2003-107, s. 2; 2004-186, ss. 17.3-17.5; 2005-343, s. 2; 2005-423, s. 1; 2007-116, s. 3; 2009-425, s. 1; 2013-237, s. 1; 2015-176, s. 1; 2017-92, s. 2; 2019-168, ss. 1, 2(b).)

Editor's Note. - Session Laws 1999-23, s. 8, provides that the amendments made by ss. 1 and 2 of that act become effective February 1, 2000, only if funds are received by federal grant to implement those sections. The State Revisor of Statutes was informed that funds were received.

Effect of Amendments. - Session Laws 2007-116, s. 3, effective October 1, 2007, in subsection (c1), substituted "includes:" for "explains" at the end of the introductory paragraph, added subdivisions (c1)(1) through (c1)(5), added the subdivision (c1)(6) designation, and added "An explanation of" at the beginning of subdivision (c1)(6).

Session Laws 2009-425, s. 1, effective August 5, 2009, in subdivision (a)(8), added the language following "property of the parties"; and added subdivision (a)(9)b1.

Session Laws 2013-237, s. 1, effective October 1, 2013, added subsection (b1). For applicability, see editor's note.

Session Laws 2015-176, s. 1, effective August 5, 2015, added the second sentence of subsection (c).

Session Laws 2017-92, s. 2, effective October 1, 2017, added subsection (b2).

Session Laws 2019-168, ss. 1 and 2(b), deleted the third sentence of subdivision (a1)(4), which formerly read: "Any sub-sequent custody order entered under Chapter 50 of the General Statutes supersedes a temporary order issued pursuant to this Chapter."; added subsections (a2) and (a3); and added the last sentence of subsection (b). For effective date and applicability, see editor's note.

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For legislative survey on family and juvenile law, see 22 Campbell L. Rev. 253 (2000).

For article, "When Petitioners Seek Custody in Domestic Violence Court and Why We Should Take Them Seriously," see 47 Wake Forest L. Rev. 935 (2012).

CASE NOTES

Due Process. - Trial court erred in dismissing a former girlfriend's complaint and motion for a domestic violence protective order (DVPO) as a "Dueling 50B" because her statutory and due process rights to a hearing were violated where, while both her and her former boyfriend's motions were set for hearing on the same date, only the former boyfriend's motion was heard, the trial judge was required to ensure that the right of each party to due process was preserved before entering mutual orders, the order did not provide a sufficient basis for dismissal, and having dueling DVPO motions did not require denial of both motions. Holder v. Kunath, 244 N.C. App. 605, 781 S.E.2d 806 (2016).

Personal Jurisdiction Over Defendant Lacking. - District court could not exercise personal jurisdiction over defendant in plaintiff's action seeking domestic violence protection order because only contact defendant had with North Carolina were calls he made to plaintiff's cell phone on day she moved to the state; defendant did not purposefully avail himself of the benefits and protections of the state's laws and nothing supported the inference that defendant knew or had any reason to know that plaintiff was present in the state. Mucha v. Wagner, - N.C. - , - S.E.2d - (Aug. 13, 2021).

Status exception to personal jurisdiction was not extended to this case where plaintiff sought domestic violence protection order; while North Carolina court lacked personal jurisdiction over defendant, who did not know plaintiff was in North Carolina when he called her, she could seek domestic violence protection orders in any court with personal jurisdiction over defendant, including his home state. Mucha v. Wagner, - N.C. - , - S.E.2d - (Aug. 13, 2021).

Plaintiff's Fear of Defendant. - In a case in which defendant appealed an order of the trial court renewing plaintiff's domestic violence protective order pursuant to G.S. 50B-3(b), plaintiff's testimony was adequate to support a finding that she was in subjective fear of defendant. Forehand v. Forehand, 238 N.C. App. 270, 767 S.E.2d 125 (2014).

Domestic Violence Protective Order Properly Issued. - Term "over time", construed broadly, categorically does not preclude a short-term romantic relationship, from ever being considered a "dating relationship"; instead, the question of what constitutes the minimum conduct to establish a dating relationship is necessarily fact sensitive and thus warrants a factor approach rather than a definitional approach. Therefore, a trial court properly entered a domestic violence protective order against a former boyfriend because it determined that the parties had a dating relationship, even though it only lasted for 3 weeks, because the parties' relationship exceeded the minimal social interpersonal bonding of casual acquaintances or of contacts through ordinary fraternization. Thomas v. Williams, 242 N.C. App. 236, 773 S.E.2d 900 (2015).

Father's text messages to a mother supported a domestic violence protective order because, as the father had no custody of the parties' children, the father's messages allegedly concerning the children served no legitimate purpose. Bunting v. Bunting, - N.C. App. - , 832 S.E.2d 183 (2019).

Domestic Violence Protective Order Improperly Issued. - The court's findings of fact did not support its conclusion of law that an act of domestic violence had occurred, where the court found that the husband had threatened the wife with immediate serious bodily injury, but no acts of domestic violence had been shown of which the court could bring about a cessation. Brandon v. Brandon, 132 N.C. App. 646, 513 S.E.2d 589 (1999).

Domestic violence protective order was not appropriate when daughter said that her father's touching made her feel creepy, but failed to demonstrate that she was in fear of bodily injury. Smith v. Smith, 145 N.C. App. 434, 549 S.E.2d 912 (2001).

Trial court erred in entering a domestic violence order of protection (DVPO) because there was no competent evidence to support the trial court's findings of fact when a wife presented absolutely no evidence before the trial court at the DVPO hearing; because the trial judge presided over the criminal case in which charges stemming from the incident were brought against the husband, the trial judge concluded that he did not have not hear any evidence regarding the civil matter, but judicial notice was entirely inappropriate for factual issues. Hensey v. Hennessy, 201 N.C. App. 56, 685 S.E.2d 541 (2009).

Trial court erred by issuing a domestic violence order of protection, because defendant ex-husband's act of hiring a PI service to conduct surveillance in order to determine if plaintiff ex-wife was cohabiting was not harassment and did not support a conclusion that defendant committed an act of domestic violence under G.S. 50B-3(a). Kennedy v. Morgan, 221 N.C. App. 219, 726 S.E.2d 193 (2012).

As a trial court's entry of a domestic violence protective order under G.S. 50B-3(b) was error, in that it was based on inadmissible evidence and improperly judicially noticed adjudicative facts, the order was to be either vacated, or if it had been renewed, then a new trial was warranted. Little v. Little, 226 N.C. App. 499, 739 S.E.2d 876 (2013).

Trial court lacked authority to enter a one-year domestic violence protective order (DVPO) that was based upon the same complaint as an ex parte DVPO because, at that time, the ex parte DVPO expired without being renewed and had been in effect for more than a year. Rudder v. Rudder, 234 N.C. App. 173, 759 S.E.2d 321 (2014).

Domestic violence protective order entered pursuant to G.S. 50B-3 was erroneous because there was no competent evidence that the father against whom the order was entered had placed a member of the mother's family in fear of (1) imminent serious bodily injury or (2) continued harassment that rose to such a level as to inflict substantial emotional distress; the fact that there was an investigation by the Department of Social Service was not relevant where there was no evidence presented regarding what any alleged investigation revealed. The trial court admitted a statement made to the mother by her son for the limited purpose of explaining why the mother left the home, and, thus, the statement was not admitted to prove that the father committed the act at issue, and was not competent to support a finding of domestic violence by the father. Burress v. Burress, 195 N.C. App. 447, 672 S.E.2d 732 (2009).

Expired Protective Order Not Subject to Renewal. - Because the statute requires a party to file a motion for renewal prior to the expiration of the current order, it follows that once a protective order expires, it is no longer subject to renewal under the statute. Rudder v. Rudder, - N.C. App. - , 754 S.E.2d 678 (2014), amended 759 S.E.2d 321, 2014 N.C. App. LEXIS 562 (N.C. Ct. App. 2014).

Renewal of Order. - There was nothing in G.S. 50B-3 nor in the caselaw prohibiting the trial court from basing its decision whether to renew domestic violence protective order (DVPO) on acts that happened in the past which served as the basis for issuance of the original DVPO. Forehand v. Forehand, 238 N.C. App. 270, 767 S.E.2d 125 (2014).

Trial court possessed the authority pursuant to G.S. 50B-3(b) to renew a domestic violence protective order against defendant, even though plaintiff, when she filed her motion seeking its renewal, no longer resided in North Carolina. Comstock v. Comstock, 244 N.C. App. 20, 780 S.E.2d 183 (2015).

Inclusion of a residency requirement in the statutory provision governing the initial issuance of a domestic violence protective order (DVPO) coupled with the omission of such a requirement in the statute authorizing the renewal of a DVPO demonstrates a legislative intent to permit such a renewal regardless of whether the moving party remains a North Carolina resident. Comstock v. Comstock, 244 N.C. App. 20, 780 S.E.2d 183 (2015).

No findings supported a trial court's conclusion of law that "good cause" existed to renew a domestic violence protective order; the findings of fact that did support a finding of "good cause" were contained in the order entered after the trial court was divested of jurisdiction. The supplemental order, which was entered after a notice of appeal, was void for lack of jurisdiction. Ponder v. Ponder, 247 N.C. App. 301, 786 S.E.2d 44 (2016), appeal dismissed and review denied, 797 S.E.2d 290, 2017 N.C. LEXIS 218 (2017).

Mootness. - Father's appeal of domestic violence protective order was not moot even though the order had expired as the father still might face legal consequences from the order. Smith v. Smith, 145 N.C. App. 434, 549 S.E.2d 912 (2001).

Consent Decree Vacated. - Trial court's authority to enter a protective order or approve a consent agreement is dependent upon finding that an act of domestic violence occurred and that the order furthers the purpose of ceasing acts of domestic violence; since a trial court's order approving a consent agreement provided that the domestic violence claims were dismissed, the trial court did not have authority to enter the consent decree, and the consent decree was vacated. Bryant v. Williams, 161 N.C. App. 444, 588 S.E.2d 506 (2003).

Collateral Estoppel Effect of Findings in Protective Order. - Where a trial judge found in domestic violence protective order proceedings that the mother was responsible for the altercation and where a different trial judge made the opposite finding in later custody proceedings, G.S. 50B-3(a1)(4) did not preclude an award of primary physical custody to the mother, but G.S. 50B-3(a1)(4) did not mandate a de novo consideration of which party committed domestic violence, as this would have undermined the mandate of G.S. 50B-3(a) requiring a trial court to issue a domestic violence protective order if it found that domestic violence occurred. Doyle v. Doyle, 176 N.C. App. 547, 626 S.E.2d 845 (2006).

Evidence Inadmissible to Support Order. - Trial court's entry of a domestic violence protective order under G.S. 50B-3(b) in favor of a wife was error where the trial court relied on inadmissible hearsay testimony from her under G.S. 8C-1, N.C. R. Evid. 801(c) and 802 that she had a diagnosis of a cervical strain; there was no showing that such testimony was within any of the exceptions under G.S. 8C-1, N.C. R. Evid. 803. Little v. Little, 226 N.C. App. 499, 739 S.E.2d 876 (2013).

Trial court's entry of a domestic violence protective order under G.S. 50B-3(b) in favor of a wife could not stand where the trial court committed prejudicial error when it took judicial notice of a criminal file, as there was no final judgment in the criminal proceeding. Little v. Little, 226 N.C. App. 499, 739 S.E.2d 876 (2013).

Insufficient Evidence That Order Was Violated. - Defendant was entitled to dismissal of the charge of violation for violating a protective order, because the evidence only raised a suspicion of guilt and was inadequate for a reasonable mind to support the conclusion that defendant went to a shopping area knowing that the individual the order was protecting worked there and thus, that defendant failed to "stay away" from her; there was no evidence defendant knew that the subject of the protective order worked at the location at issue. State v. Williams, 226 N.C. App. 393, 741 S.E.2d 9 (2013).

Trial court erred in denying defendant's motion to suppress because the civil domestic violence protective at issue only required defendant to surrender any weapons that he might have, the officers executing the order lacked probable cause to suspect any particular criminal activity when they approached defendant's home, there were no exigent circumstances, and the good faith exception to the exclusionary rule did not apply to evidence obtained in violation of the State constitution. State v. Elder, 232 N.C. App. 80, 753 S.E.2d 504, review denied, 758 S.E.2d 863, 2014 N.C. LEXIS 417 (2014).

Attorney Fees. - In a case involving a domestic violence protective order (DVPO), a trial court was without jurisdiction to enter an award of attorney's fees because it was a matter affected by the judgment appealed from. The award was based, in part, on the motion to renew the DVPO, which resulted in a void ab initio DVPO renewal order. Ponder v. Ponder, 247 N.C. App. 301, 786 S.E.2d 44 (2016), appeal dismissed and review denied, 797 S.E.2d 290, 2017 N.C. LEXIS 218 (2017).

Cited in Braswell v. Braswell, 98 N.C. App. 231, 390 S.E.2d 752; Story v. Story, 57 N.C. App. 509, 291 S.E.2d 923 (1982); Benfield v. Pilot Life Ins. Co., 82 N.C. App. 293, 346 S.E.2d 283 (1986), modified on other grounds, 330 N.C. 363, 410 S.E.2d 897 (1991); Brandon v. Brandon, 132 N.C. App. 646, 513 S.E.2d 589 (1999); State v. Byrd, 363 N.C. 214, 675 S.E.2d 323 (2009); State v. Brunson, 221 N.C. App. 614, 727 S.E.2d 916 (2012); State v. Poole, 228 N.C. App. 248, 745 S.E.2d 26 (2013), dismissed and review denied 749 S.E.2d 885, 2013 N.C. LEXIS 1282; Davis v. Davis, 229 N.C. App. 494, 748 S.E.2d 594 (2013); Stancill v. Stancill, 241 N.C. App. 529, 773 S.E.2d 890 (2015); State v. Edgerton, 242 N.C. App. 460, 774 S.E.2d 927 (2015).

§ 50B-3.1. Surrender and disposal of firearms; violations; exemptions.

1. Required Surrender of Firearms. - Upon issuance of an emergency or ex parte order pursuant to this Chapter, the court shall order the defendant to surrender to the sheriff all firearms, machine guns, ammunition, permits to purchase firearms, and permits to carry concealed firearms that are in the care, custody, possession, ownership, or control of the defendant if the court finds any of the following factors:
   1. The use or threatened use of a deadly weapon by the defendant or a pattern of prior conduct involving the use or threatened use of violence with a firearm against persons.
   2. Threats to seriously injure or kill the aggrieved party or minor child by the defendant.
   3. Threats to commit suicide by the defendant.
   4. Serious injuries inflicted upon the aggrieved party or minor child by the defendant.
2. Ex Parte or Emergency Hearing. - The court shall inquire of the plaintiff, at the ex parte or emergency hearing, the presence of, ownership of, or otherwise access to firearms by the defendant, as well as ammunition, permits to purchase firearms, and permits to carry concealed firearms, and include, whenever possible, identifying information regarding the description, number, and location of firearms, ammunition, and permits in the order.
3. Ten-Day Hearing. - The court, at the 10-day hearing, shall inquire of the defendant the presence of, ownership of, or otherwise access to firearms by the defendant, as well as ammunition, permits to purchase firearms, and permits to carry concealed firearms, and include, whenever possible, identifying information regarding the description, number, and location of firearms, ammunition, and permits in the order.
4. Surrender. - Upon service of the order, the defendant shall immediately surrender to the sheriff possession of all firearms, machine guns, ammunition, permits to purchase firearms, and permits to carry concealed firearms that are in the care, custody, possession, ownership, or control of the defendant. In the event that weapons cannot be surrendered at the time the order is served, the defendant shall surrender the firearms, ammunitions, and permits to the sheriff within 24 hours of service at a time and place specified by the sheriff. The sheriff shall store the firearms or contract with a licensed firearms dealer to provide storage.
   1. If the court orders the defendant to surrender firearms, ammunition, and permits, the court shall inform the plaintiff and the defendant of the terms of the protective order and include these terms on the face of the order, including that the defendant is prohibited from possessing, purchasing, or receiving or attempting to possess, purchase, or receive a firearm for so long as the protective order or any successive protective order is in effect. The terms of the order shall include instructions as to how the defendant may request retrieval of any firearms, ammunition, and permits surrendered to the sheriff when the protective order is no longer in effect. The terms shall also include notice of the penalty for violation of G.S. 14-269.8.
   2. The sheriff may charge the defendant a reasonable fee for the storage of any firearms and ammunition taken pursuant to a protective order. The fees are payable to the sheriff. The sheriff shall transmit the proceeds of these fees to the county finance officer. The fees shall be used by the sheriff to pay the costs of administering this section and for other law enforcement purposes. The county shall expend the restricted funds for these purposes only. The sheriff shall not release firearms, ammunition, or permits without a court order granting the release. The defendant must remit all fees owed prior to the authorized return of any firearms, ammunition, or permits. The sheriff shall not incur any civil or criminal liability for alleged damage or deterioration due to storage or transportation of any firearms or ammunition held pursuant to this section.
5. Retrieval. - If the court does not enter a protective order when the ex parte or emergency order expires, the defendant may retrieve any weapons surrendered to the sheriff unless the court finds that the defendant is precluded from owning or possessing a firearm pursuant to State or federal law or final disposition of any pending criminal charges committed against the person that is the subject of the current protective order.
6. Motion for Return. - The defendant may request the return of any firearms, ammunition, or permits surrendered by filing a motion with the court at the expiration of the current order or final disposition of any pending criminal charges committed against the person that is the subject of the current protective order and not later than 90 days after the expiration of the current order or final disposition of any pending criminal charges committed against the person that is the subject of the current protective order. Upon receipt of the motion, the court shall schedule a hearing and provide written notice to the plaintiff who shall have the right to appear and be heard and to the sheriff who has control of the firearms, ammunition, or permits. The court shall determine whether the defendant is subject to any State or federal law or court order that precludes the defendant from owning or possessing a firearm. The inquiry shall include:
   1. Whether the protective order has been renewed.
   2. Whether the defendant is subject to any other protective orders.
   3. Whether the defendant is disqualified from owning or possessing a firearm pursuant to 18 U.S.C. § 922 or any State law.
   4. Whether the defendant has any pending criminal charges, in either State or federal court, committed against the person that is the subject of the current protective order.
7. Motion for Return by Third-Party Owner. - A third-party owner of firearms, ammunition, or permits who is otherwise eligible to possess such items may file a motion requesting the return to said third party of any such items in the possession of the sheriff seized as a result of the entry of a domestic violence protective order. The motion must be filed not later than 30 days after the seizure of the items by the sheriff. Upon receipt of the third party's motion, the court shall schedule a hearing and provide written notice to all parties and the sheriff. The court shall order return of the items to the third party unless the court determines that the third party is disqualified from owning or possessing said items pursuant to State or federal law. If the court denies the return of said items to the third party, the items shall be disposed of by the sheriff as provided in subsection (h) of this section.
8. Disposal of Firearms. - If the defendant does not file a motion requesting the return of any firearms, ammunition, or permits surrendered within the time period prescribed by this section, if the court determines that the defendant is precluded from regaining possession of any firearms, ammunition, or permits surrendered, or if the defendant or third-party owner fails to remit all fees owed for the storage of the firearms or ammunition within 30 days of the entry of the order granting the return of the firearms, ammunition, or permits, the sheriff who has control of the firearms, ammunition, or permits shall give notice to the defendant, and the sheriff shall apply to the court for an order of disposition of the firearms, ammunition, or permits. The judge, after a hearing, may order the disposition of the firearms, ammunition, or permits in one or more of the ways authorized by law, including subdivision (4), (4b), (5), or (6) of G.S. 14-269.1. If a sale by the sheriff does occur, any proceeds from the sale after deducting any costs associated with the sale, and in accordance with all applicable State and federal law, shall be provided to the defendant, if requested by the defendant by motion made before the hearing or at the hearing and if ordered by the judge.
9. It is unlawful for any person subject to a protective order prohibiting the possession or purchase of firearms to:
   1. Fail to surrender all firearms, ammunition, permits to purchase firearms, and permits to carry concealed firearms to the sheriff as ordered by the court;
   2. Fail to disclose all information pertaining to the possession of firearms, ammunition, and permits to purchase and permits to carry concealed firearms as requested by the court; or
   3. Provide false information to the court pertaining to any of these items.
10. Violations. - In accordance with G.S. 14-269.8, it is unlawful for any person to possess, purchase, or receive or attempt to possess, purchase, or receive a firearm, as defined in G.S. 14-409.39(2), machine gun, ammunition, or permits to purchase or carry concealed firearms if ordered by the court for so long as that protective order or any successive protective order entered against that person pursuant to this Chapter is in effect. Any defendant violating the provisions of this section shall be guilty of a Class H felony.
11. Official Use Exemption. - This section shall not prohibit law enforcement officers and members of any branch of the Armed Forces of the United States, not otherwise prohibited under federal law, from possessing or using firearms for official use only.
12. Nothing in this section is intended to limit the discretion of the court in granting additional relief as provided in other sections of this Chapter.

The court shall deny the return of firearms, ammunition, or permits if the court finds that the defendant is precluded from owning or possessing a firearm pursuant to State or federal law or if the defendant has any pending criminal charges, in either State or federal court, committed against the person that is the subject of the current protective order until the final disposition of those charges.

History

(2003-410, s. 1; 2004-203, s. 34(a); 2005-287, s. 4; 2005-423, ss. 2, 3; 2011-183, s. 40; 2011-268, ss. 23, 24.)

Cross References. - As to prohibition of purchase or possession of firearms by person subject to domestic violence order, see G.S. 14-269.8.

Effect of Amendments. - Session Laws 2005-287, s. 4, effective August 22, 2005, substituted "(4b)" for "(4a)" in the next-to-last sentence of subsection (h).

Session Laws 2005-423, ss. 2 and 3, effective October 1, 2005, added "or final disposition of any pending criminal charges committed against the person that is the subject of the current protective order" to the end of subsections (e) and (f); rewrote the first sentence of subsection (f); added subdivision (f)(4); and made minor punctuation changes.

Session Laws 2011-183, s. 40, effective June 20, 2011, substituted "Armed Forces of the United States" for "United States armed forces" in subsection (k).

Session Laws 2011-268, ss. 23 and 24, effective December 1, 2011, and applicable to offenses committed on or after that date, in the first sentence of subdivision (d)(1), deleted "owning" preceding "possessing" and "own" preceding "possess"; and in the first sentence of subsection (j), twice deleted "own" preceding "possess."

CASE NOTES

Validity of Order. - The ex parte domestic violence order was a valid protective order for purposes of this section and G.S. 14-269.8. State v. Poole, 228 N.C. App. 248, 745 S.E.2d 26 (2013), dismissed and review denied 749 S.E.2d 885, 2013 N.C. LEXIS 1282.

Trial court exceeded its authority under G.S. 50C-7 because it had no authority to order defendant not to possess or purchase any firearms, to surrender his firearms, or to revoke his concealed carry permit; even if the order had been entered under N.C. Gen. Stat. Chapter 50B, the order requiring surrender of firearms would have been in error because there was no evidence to support the required findings of fact under G.S. 50B-3.1. Russell v. Wofford, 260 N.C. App. 88, 816 S.E.2d 909 (2018).

Trial court erred in denying defendant's motion to suppress because the civil domestic violence protective at issue only required defendant to surrender any weapons that he might have, the officers executing the order lacked probable cause to suspect any particular criminal activity when they approached defendant's home, there were no exigent circumstances, and the good faith exception to the exclusionary rule did not apply to evidence obtained in violation of the State constitution. State v. Elder, 232 N.C. App. 80, 753 S.E.2d 504, review denied, 758 S.E.2d 863, 2014 N.C. LEXIS 417 (2014).

Renewal Of Expired Protective Order. - Inquiry under the statute is whether the protective order has been renewed, not whether the protective order should be renewed; this suggests that once a protective order expires, an aggrieved party may not proceed on a request to renew the expired protective order, nevertheless, nothing prevents the party from filing a new complaint and reinitiating the process. Rudder v. Rudder, - N.C. App. - , 754 S.E.2d 678 (2014), amended 759 S.E.2d 321, 2014 N.C. App. LEXIS 562 (N.C. Ct. App. 2014).

Trial Court Had No Authority To Enter One-Year Domestic Violence Protection Order After Ex Parte Domestic Violence Protective Order Expired. - Trial court did not have authority to enter a one-year domestic violence protection order (DVPO) because its ex parte DVPO expired without being renewed; because the ex parte DVPO expired by its own terms, it could not be renewed, and the only issue properly before the trial court was whether defendant was entitled to the return of his firearms under subsection (f). Rudder v. Rudder, - N.C. App. - , 754 S.E.2d 678 (2014), amended 759 S.E.2d 321, 2014 N.C. App. LEXIS 562 (N.C. Ct. App. 2014).

Return. - Weapons surrendered under a domestic violence protective order should have been returned because convictions for stalking and communicating threats did not constitute "misdemeanor crimes of domestic violence," and federal law did not preclude the gun owner from having or possessing a firearm, even if the owner and a victim were in a "personal relationship." Underwood v. Hudson, 244 N.C. App. 535, 781 S.E.2d 295 (2015).

Surrender of Firearms Properly Ordered. - It was not error to order a husband to surrender firearms as part of an ex parte domestic violence protection order because the husband's alleged suicide threat, alcoholism, and volatile behavior sufficiently demonstrated an G.S. 50B-3.1(a) "threat to commit suicide." Stancill v. Stancill, 241 N.C. App. 529, 773 S.E.2d 890 (2015).

Failure to Make Required Findings. - It was error to order a husband, in a domestic violence protection order, to surrender firearms because the court did not make the findings required by G.S. 50B-3.1(a). Stancill v. Stancill, 241 N.C. App. 529, 773 S.E.2d 890 (2015).

Cited in State v. Brunson, 221 N.C. App. 614, 727 S.E.2d 916 (2012); Rudder v. Rudder, 234 N.C. App. 173, 759 S.E.2d 321 (2014).

§ 50B-4. Enforcement of orders.

1. A party may file a motion for contempt for violation of any order entered pursuant to this Chapter. This party may file and proceed with that motion pro se, using forms provided by the clerk of superior court or a magistrate authorized under G.S. 50B-2(c1). Upon the filing pro se of a motion for contempt under this subsection, the clerk, or the authorized magistrate, if the facts show clearly that there is danger of acts of domestic violence against the aggrieved party or a minor child and the motion is made at a time when the clerk is not available, shall schedule and issue notice of a show cause hearing with the district court division of the General Court of Justice at the earliest possible date pursuant to G.S. 5A-23. The Clerk, or the magistrate in the case of notice issued by the magistrate pursuant to this subsection, shall effect service of the motion, notice, and other papers through the appropriate law enforcement agency where the defendant is to be served.
2. Repealed by Session Laws 1999-23, s. 2, effective February 1, 2000.
3. A valid protective order entered pursuant to this Chapter shall be enforced by all North Carolina law enforcement agencies without further order of the court.
4. A valid protective order entered by the courts of another state or the courts of an Indian tribe shall be accorded full faith and credit by the courts of North Carolina whether or not the order has been registered and shall be enforced by the courts and the law enforcement agencies of North Carolina as if it were an order issued by a North Carolina court. In determining the validity of an out-of-state order for purposes of enforcement, a law enforcement officer may rely upon a copy of the protective order issued by another state or the courts of an Indian tribe that is provided to the officer and on the statement of a person protected by the order that the order remains in effect. Even though registration is not required, a copy of a protective order may be registered in North Carolina by filing with the clerk of superior court in any county a copy of the order and an affidavit by a person protected by the order that to the best of that person's knowledge the order is presently in effect as written. Notice of the registration shall not be given to the defendant. Upon registration of the order, the clerk shall promptly forward a copy to the sheriff of that county. Unless the issuing state has already entered the order, the sheriff shall provide for prompt entry of the order into the National Crime Information Center registry pursuant to G.S. 50B-3(d).
5. Upon application or motion by a party to the court, the court shall determine whether an out-of-state order remains in full force and effect.
6. The term "valid protective order," as used in subsections (c) and (d) of this section, shall include an emergency or ex parte order entered under this Chapter.
7. Notwithstanding the provisions of G.S. 1-294, a valid protective order entered pursuant to this Chapter which has been appealed to the appellate division is enforceable in the trial court during the pendency of the appeal. Upon motion by the aggrieved party, the court of the appellate division in which the appeal is pending may stay an order of the trial court until the appeal is decided, if justice so requires.

History

(1979, c. 561, s. 1; 1985, c. 113, s. 4; 1987, c. 739, s. 6; 1989, c. 461, s. 2; 1994, Ex. Sess., c. 4, s. 3; 1995 (Reg. Sess., 1996), c. 591, s. 3; 1999-23, s. 2; 2002-126, s. 29A.6(c); 2003-107, s. 3; 2009-342, s. 4; 2017-92, s. 1.)

Editor's Note. - Session Laws, 1999-23, s. 8, provides that the amendments made by ss. 1 and 2 of that act become effective February 1, 2000, only if funds are received by federal grant to implement those sections. The State Revisor of Statutes was informed that funds were received.

Effect of Amendments. - Session Laws 2009-342, s. 4, effective July 24, 2009, added subsection (f).

Session Laws 2017-92, s. 1, effective October 1, 2017, added subsection (g).

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

CASE NOTES

Civil Liability for Failing to Enforce Protective Order. - If, as plaintiff alleged, police officers promised to protect her by arresting her husband for violating a protective order but failed to do so, and her reliance on the promise was causally related to her injury by her husband, the officers owed her a "special duty" and therefore were not shielded from liability for negligence under the public duty doctrine. Cockerham-Ellerbee v. Town of Jonesville, 176 N.C. App. 372, 626 S.E.2d 685 (2006). See Editor's note under G.S. 50B-4.1, quoting Session Laws 2009-389, s. 1, as to the holding in this case.

Cited in Braswell v. Braswell, 98 N.C. App. 231, 390 S.E.2d 752 (1990); State v. Poole, 228 N.C. App. 248, 745 S.E.2d 26 (2013), dismissed and review denied 749 S.E.2d 885, 2013 N.C. LEXIS 1282.

§ 50B-4.1. Violation of valid protective order.

1. Except as otherwise provided by law, a person who knowingly violates a valid protective order entered pursuant to this Chapter or who knowingly violates a valid protective order entered by the courts of another state or the courts of an Indian tribe shall be guilty of a Class A1 misdemeanor.
2. A law enforcement officer shall arrest and take a person into custody, with or without a warrant or other process, if the officer has probable cause to believe that the person knowingly has violated a valid protective order excluding the person from the residence or household occupied by a victim of domestic violence or directing the person to refrain from doing any or all of the acts specified in G.S. 50B-3(a)(9).
3. When a law enforcement officer makes an arrest under this section without a warrant, and the party arrested contests that the out-of-state order or the order issued by an Indian court remains in full force and effect, the party arrested shall be promptly provided with a copy of the information applicable to the party which appears on the National Crime Information Center registry by the sheriff of the county in which the arrest occurs.
4. Unless covered under some other provision of law providing greater punishment, a person who commits a felony at a time when the person knows the behavior is prohibited by a valid protective order as provided in subsection (a) of this section shall be guilty of a felony one class higher than the principal felony described in the charging document. This subsection shall not apply to convictions of a Class A or B1 felony or to convictions of the offenses set forth in subsection (f) or subsection (g) of this section.
5. An indictment or information that charges a person with committing felonious conduct as described in subsection (d) of this section shall also allege that the person knowingly violated a valid protective order as described in subsection (a) of this section in the course of the conduct constituting the underlying felony. In order for a person to be punished as described in subsection (d) of this section, a finding shall be made that the person knowingly violated the protective order in the course of conduct constituting the underlying felony.
6. Unless covered under some other provision of law providing greater punishment, any person who knowingly violates a valid protective order as provided in subsection (a) of this section, after having been previously convicted of two offenses under this Chapter, shall be guilty of a Class H felony.
7. Unless covered under some other provision of law providing greater punishment, any person who, while in possession of a deadly weapon on or about his or her person or within close proximity to his or her person, knowingly violates a valid protective order as provided in subsection (a) of this section by failing to stay away from a place, or a person, as so directed under the terms of the order, shall be guilty of a Class H felony.
8. Unless covered under some other provision of law providing greater punishment, any person who is subject to a valid protective order, as provided in subsection (a) of this section, who enters property operated as a safe house or haven for victims of domestic violence, where a person protected under the order is residing, shall be guilty of a Class H felony. A person violates this subsection regardless of whether the person protected under the order is present on the property.
9. For the purposes of this section, the term "valid protective order" shall include an emergency or ex parte order entered under this Chapter.

History

(1997-471, s. 3; 1997-456, s. 27; 1999-23, s. 4; 2001-518, s. 5; 2007-190, s. 1; 2008-93, s. 1; 2009-342, s. 5; 2009-389, s. 2; 2010-5, s. 1; 2015-91, s. 3.)

Editor's Note. - Session Laws 2009-389, s. 1, provides: "Notwithstanding the holding by the North Carolina Court of Appeals in Cockerham-Ellerbee v. The Town of Jonesville, 176 N.C. App. 372, 626 S.E.2d 685 (2006), G.S. 50B-4.1(b) [which was amended by Session Laws 2009-389, s. 2 effective July 31, 2009, by substituting "custody, with or without a warrant or other process," for "custody without a warrant or other process" in subsection (b)] creates a mandatory provision requiring a law enforcement officer to arrest and take a person into custody without a warrant or other process if the requirements set forth in the subsection are met."

Effect of Amendments. - Session Laws 2007-190, s. 1, effective December 1, 2007, and applicable to offenses committed on or after that date, inserted "or subsection (g)" in the last sentence of subsection (d), and added subsection (g).

Session Laws 2008-93, s. 1, effective December 1, 2008, substituted "two offenses" for "three offenses" in subsection (f). See Editor's note for applicability.

Session Laws 2009-342, s. 5, effective July 24, 2009, added subsection (h).

Session Laws 2009-389, s. 2, effective July 31, 2009, substituted "custody, with or without a warrant or other process," for "custody without a warrant or other process" in subsection (b).

Session Laws 2010-5, s. 1, effective December 1, 2010, and applicable to offenses committed on or after that date, added subsection (g1).

Session Laws 2015-91, s. 3, effective December 1, 2015, substituted "convictions of a Class A or B1 felony or to convictions of the offenses set forth in" for "a person who is charged with or convicted of a Class A or B1 felony or to a person charged under" in subsection (d). For applicability, see editor's note.

CASE NOTES

Construction. - By its plain meaning, the term property, as used in G.S. 50B-4.1, is not limited to buildings or other structures affixed to land but also encompasses the land itself. State v. Williams, 247 N.C. App. 239, 784 S.E.2d 232 (2016), review denied, 792 S.E.2d 503, 2016 N.C. LEXIS 679 (2016).

Misdemeanor Crime of Violating A Domestic Violence Protective Order Lesser Included Offense of Felony Crime. - Under the definitional test, the misdemeanor crime of violating a domestic violence protective order (DVPO) is a lesser included offense of the felony crime of violating a DVPO with a deadly weapon because both crimes have identical elements of (i) knowingly (ii) violating a (iii) valid DVPO, except that the felony offense includes an additional element that the perpetrator be in possession of a deadly weapon on or about his or her person or within close proximity to his or her person. State v. Edgerton, 234 N.C. App. 412, 759 S.E.2d 669 (2014), rev'd 368 N.C. 32, 769 S.E.2d 837, 2015 N.C. LEXIS 262 (2015).

Civil Liability for Failing to Enforce Protective Order. - If, as plaintiff alleged, police officers promised to protect her by arresting her husband for violating a protective order but failed to do so, and her reliance on the promise was causally related to her injury by her husband, the officers owed her a "special duty" and therefore were not shielded from liability for negligence under the public duty doctrine. Cockerham-Ellerbee v. Town of Jonesville, 176 N.C. App. 372, 626 S.E.2d 685 (2006). See Editor's note under G.S. 50B-4.1, quoting Session Laws 2009-389, s. 1, as to the holding in this case.

Enhancement for Knowingly Violating Protective Order. - In reversing the Code of Appeals' decision in State v. Byrd, 185 N.C. App. 597, 649 S.E.2d 444 (2007), the North Carolina Supreme Code ruled that the defendant was subject to an enhanced penalty for knowingly violating a temporary restraining order (TRO) because the TRO was a protective order entered pursuant to a hearing; the "hearing" requirement in G.S. 50B-1(c) was satisfied when defendant received notice that a TRO had entered against defendant. State v. Byrd, 363 N.C. 214, 675 S.E.2d 323 (2009).

Trial court erred in enhancing defendant's sentence under G.S. 50B-4.1(d) for his knowing violation of a valid protective order because a temporary restraining order (TRO) was not a valid domestic violence protective order under Chapter 50B but an ex parte TRO entered under N.C. R. Civ. P. 65(b), and the order was not entered upon hearing by the trial court or consent of the parties as required under G.S. 50B-1(c); only a valid protective order entered under Chapter 50B can be used to enhance a defendant's sentence under G.S. 50B-4.1(d), and Chapter 50B requires that a defendant be given notice and the opportunity to be heard before entry of a protective order. State v. Byrd, 363 N.C. 214, 675 S.E.2d 323 (2009).

By limiting applicability of the enhancement provision to violation of protective orders issued after a hearing, the General Assembly recognizes and gives deference to protection of a defendant's liberty interest through due process of law; therefore, a temporary restraining order entered under N.C. R. Civ. P. 65(b) is not the functional legal equivalent of a protective order entered pursuant to the procedure set forth in Chapter 50B. State v. Byrd, 363 N.C. 214, 675 S.E.2d 323 (2009).

Trial court erred in submitting to the jury the element of knowing violation of a domestic violence protective order (DVPO) to enhance defendant's punishments for assault with a deadly weapon with intent to kill inflicting serious injury and attempted second-degree kidnapping because the DVPO statute did not apply to a person "charged with" or "convicted of" certain felonies and defendant was "a person charged." State v. Jacobs, 239 N.C. App. 425, 768 S.E.2d 883 (2015).

Jury Instructions. - Trial court's failure to instruct on the misdemeanor crime of violating a domestic violence protective order (DVPO) rose to the level of plain error because the lack of a misdemeanor sentencing option likely impacted the jury's finding of guilt on the felony charge; with the elements of the misdemeanor DVPO violation likely met, the jury's only method to sentence the defendant for violating the DVPO was through the felony violation of a DVPO with a deadly weapon. State v. Edgerton, 234 N.C. App. 412, 759 S.E.2d 669 (2014), rev'd 368 N.C. 32, 769 S.E.2d 837, 2015 N.C. LEXIS 262 (2015).

As the misdemeanor violation of a domestic violence protective order (DVPO) is a lesser included offense of the felony violation of a DVPO, a defendant is entitled to a jury instruction on that charge if the evidence would permit a jury rationally to find him or her guilty of the lesser offense and acquit him or her of the greater. State v. Edgerton, 234 N.C. App. 412, 759 S.E.2d 669 (2014), rev'd 368 N.C. 32, 769 S.E.2d 837, 2015 N.C. LEXIS 262 (2015).

Because the trial court concluded that a knife was not a deadly weapon per se, the court should have instructed the jury on the lesser-included misdemeanor offense of violating a domestic violence protective order (DVPO); based on conflicting evidence of the knife's deadly qualities, a jury could have rationally found the defendant guilty of the lesser-included offense of misdemeanor violation of a DVPO. State v. Edgerton, 234 N.C. App. 412, 759 S.E.2d 669 (2014), rev'd 368 N.C. 32, 769 S.E.2d 837, 2015 N.C. LEXIS 262 (2015).

Habitual Offender Conviction Vacated. - Defendant's convictions for habitual violation of a domestic violence protection order were vacated because defendant was convicted of interfering with a witness based on the same conduct, and G.S. 50B-4.1(f) barred the convictions if another law required greater punishment. State v. Jones, 237 N.C. App. 526, 767 S.E.2d 341 (2014).

Habitual Offender Conviction Affirmed. - Trial court properly denied defendant's motions to dismiss a charge arising under G.S. 50B-4.1(g1) where he did not dispute that he was subject to a domestic violence protective order previously obtained by the victim. The victim resided at a safe house on a specific date, and he parked his car in the safe house's parking lot and then walked up to the front door of the shelter on that date. State v. Williams, 247 N.C. App. 239, 784 S.E.2d 232 (2016), review denied, 792 S.E.2d 503, 2016 N.C. LEXIS 679 (2016).

Establishment of Statutory Aggravating Factor. - Defendant received a trial free of error because any evidence offered by the State to show that he took advantage of a position of trust or confidence could be used to establish a statutory aggravating factor where the statutory definition of a "personal relationship" did not require proof of either a position of trust or confidence or the abuse of that position, the record lacked sufficient evidence to make a determination on defendant's ineffective assistance of counsel claim, and defendant's habitual felon status was not void where he was validly convicted of felony violation of a domestic violence protective order. State v. Edgerton, 242 N.C. App. 460, 774 S.E.2d 927 (2015).

Insufficient Evidence. - Defendant's motions to dismiss the charge of violation of a protective order while in possession of a deadly weapon was improperly denied as the State failed to present sufficient evidence of defendant's knowledge of the second domestic violence protective order (DVPO) because, although he was aware of the terms of the first DVPO, including the requirement to stay away from the victim, there was no direct evidence that he had knowledge, constructively or in fact, of the second DVPO, and any circumstantial evidence of his knowledge was tenuous at best. State v. Tucker, - N.C. App. - , - S.E.2d - (Aug. 18, 2020).

Cited in State v. Anthony, 354 N.C. 372, 555 S.E.2d 557 (2001); Hensey v. Hennessy, 201 N.C. App. 56, 685 S.E.2d 541 (2009); State v. Williams, 226 N.C. App. 393, 741 S.E.2d 9 (2013); State v. Poole, 228 N.C. App. 248, 745 S.E.2d 26 (2013), dismissed and review denied 749 S.E.2d 885, 2013 N.C. LEXIS 1282.

§ 50B-4.2. False statement regarding protective order a misdemeanor.

A person who knowingly makes a false statement to a law enforcement agency or officer that a protective order entered pursuant to this Chapter or by the courts of another state or Indian tribe remains in effect shall be guilty of a Class 2 misdemeanor.

History

(1999-23, s. 5.)

§ 50B-5. Emergency assistance.

1. A person who alleges that he or she or a minor child has been the victim of domestic violence may request the assistance of a local law enforcement agency. The local law enforcement agency shall respond to the request for assistance as soon as practicable. The local law enforcement officer responding to the request for assistance may take whatever steps are reasonably necessary to protect the complainant from harm and may advise the complainant of sources of shelter, medical care, counseling and other services. Upon request by the complainant and where feasible, the law enforcement officer may transport the complainant to appropriate facilities such as hospitals, magistrates' offices, or public or private facilities for shelter and accompany the complainant to his or her residence, within the jurisdiction in which the request for assistance was made, so that the complainant may remove food, clothing, medication and such other personal property as is reasonably necessary to enable the complainant and any minor children who are presently in the care of the complainant to remain elsewhere pending further proceedings.
2. In providing the assistance authorized by subsection (a), no officer may be held criminally or civilly liable on account of reasonable measures taken under authority of subsection (a).

History

(1979, c. 561, s. 1; 1985, c. 113, s. 5; 1999-23, s. 6.)

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For article, "Litigating Police Misconduct Claims in North Carolina," see 19 N.C. Cent. L.J. 113 (1991).

CASE NOTES

Subsection (b) Not a Directive. - The provision of subsection (b) absolving officers from liability if reasonable measures are taken cannot be construed as a directive to take such measures. Braswell v. Braswell, 98 N.C. App. 231, 390 S.E.2d 752, modified on other grounds, 330 N.C. 363, 410 S.E.2d 897 (1991).

§ 50B-5.5. Employment discrimination unlawful.

1. No employer shall discharge, demote, deny a promotion, or discipline an employee because the employee took reasonable time off from work to obtain or attempt to obtain relief under this Chapter. An employee who is absent from the workplace shall follow the employer's usual time-off policy or procedure, including advance notice to the employer, when required by the employer's usual procedures, unless an emergency prevents the employee from doing so. An employer may require documentation of any emergency that prevented the employee from complying in advance with the employer's usual time-off policy or procedure, or any other information available to the employee which supports the employee's reason for being absent from the workplace.
2. The Commissioner of Labor shall enforce the provisions of this section according to Article 21 of Chapter 95 of the General Statutes, including the rules and regulations issued pursuant to the Article.

History

(2004-186, s. 18.1.)

§ 50B-6. Construction of Chapter.

This Chapter shall not be construed as granting a status to any person for any purpose other than those expressly stated herein. This Chapter shall not be construed as relieving any person or institution of the duty to report to the department of social services, as required by G.S. 7B-301, if the person or institution has cause to suspect that a juvenile is abused or neglected.

History

(1979, c. 561, s. 1; 1985, c. 113, s. 6; 1998-202, s. 13(r).)

CASE NOTES

Marital Status Not Changed. - The legislature obviously did not intend for protective orders under this Chapter to change marital status. Benfield v. Pilot Life Ins. Co., 82 N.C. App. 293, 346 S.E.2d 283 (1986).

Wife who had obtained a temporary protective order under this Chapter containing findings that husband had physically assaulted wife, ordering him to vacate and not return to the family residence, and granting exclusive possession and full use of the home to wife was not legally separated at the time of her husband's death, for purposes of insurance policy providing benefits upon the death of husband unless they were legally separated. Benfield v. Pilot Life Ins. Co., 82 N.C. App. 293, 346 S.E.2d 283 (1986).

Cited in Braswell v. Braswell, 98 N.C. App. 231, 390 S.E.2d 752 (1990); Augur v. Augur, 356 N.C. 582, 573 S.E.2d 125 (2002).

§ 50B-7. Remedies not exclusive.

1. The remedies provided by this Chapter are not exclusive but are additional to remedies provided under Chapter 50 and elsewhere in the General Statutes.
2. Any subsequent court order entered supersedes similar provisions in protective orders issued pursuant to this Chapter.

History

(1979, c. 561, s. 1; 2019-168, s. 2(a).)

Editor's Note. - Session Laws 2019-168, s. 3, made subsection (b) as added by Session Laws 2019-168, s. 2(a) effective December 1, 2019, and applicable to orders in effect on or after that date.

Effect of Amendments. - Session Laws 2019-168, s. 2(a), added subsection (b). For effective date and applicability, see editor's note.

CASE NOTES

Cited in Braswell v. Braswell, 98 N.C. App. 231, 390 S.E.2d 752 (1990).

§ 50B-8. Effect upon prosecution for violation of § 14-184 or other offense against public morals.

The granting of a protective order, prosecution for violation of this Chapter, or the granting of any other relief or the institution of any other enforcement proceedings under this Chapter shall not be construed to afford a defense to any person or persons charged with fornication and adultery under G.S. 14-184 or charged with any other offense against the public morals; and prosecution, conviction, or prosecution and conviction for violation of any provision of this Chapter shall not be a bar to prosecution for violation of G.S. 14-184 or of any other statute defining an offense or offenses against the public morals.

History

(1979, c. 561, s. 1; 2003-107, s. 4.)

Cross References. - For similar provision applicable to domestic criminal trespass, see G.S. 14-134.3.

§ 50B-9. Domestic Violence Center Fund.

1. The Domestic Violence Center Fund is established within the State Treasury. The fund shall be administered by the Department of Administration, North Carolina Council for Women, and shall be used to make grants to centers for victims of domestic violence and to The North Carolina Coalition Against Domestic Violence, Inc. This fund shall be administered in accordance with the provisions of the Executive Budget Act. The Department of Administration shall make quarterly grants to each eligible domestic violence center and to The North Carolina Coalition Against Domestic Violence, Inc. Effective July 1, 2017, and each fiscal year thereafter, the Department of Administration shall send the contracts to grantees within 10 business days of the date the Current Operations Appropriations Act, as defined in G.S. 143C-1-1, is certified for that fiscal year.
2. Each grant recipient shall receive the same amount. To be eligible to receive funds under this section, a domestic violence center must meet the following requirements:
   1. It shall have been in operation on the preceding July 1 and shall continue to be in operation.
   2. It shall offer all of the following services: a hotline, transportation services, community education programs, daytime services, and call forwarding during the night and it shall fulfill other criteria established by the Department of Administration.
   3. It shall be a nonprofit corporation or a local governmental entity.
3. The North Carolina Council for Women shall report on the quarterly distributions of the grants from the Domestic Violence Center Fund to the House and Senate chairs of the General Government Appropriations Committee within five business days of distribution. The report shall include the date, amount, and recipients of the fund disbursements. The report shall also include any eligible programs which are ineligible to receive funding during the relative reporting cycle as well as the reason of the ineligibility for that relative reporting cycle.

History

(1991, c. 693, s. 3; 1991 (Reg. Sess., 1992), c. 988, s. 1; 2017-57, s. 31.2(a).)

Effect of Amendments. - Session Laws 2017-57, s. 31.2(a), effective July 1, 2017, designated the existing provisions as subsections (a) and (b); added the last sentence in subsection (a); and added subsection (c).