Complaint for Domestic Violence Protective Orders - Filing and Pleadings
Domestic violence cases may involve proceedings in both Criminal Court and Civil Court in North Carolina.
One “act of domestic violence” can result in criminal charges for things like simple assault, assault on a female, communicating threats, injury to personal property, etc., as well as serve as a legitimate legal ground for seeking a restraining order or other form of civil relief/protection.
A domestic violence protective order, or what is often referred to as a DVPO or “50B” is pursuant to Chapter 50B of the General Statutes.
Rule 65 Injunctions, under the North Carolina Rules of Civil Procedure, cover both preliminary injunctions and temporary restraining orders (TRO).Burdens of Proof for Criminal Charges and Civil Restraining Orders
The Burden of Proof, who carries that Burden, and the type of evidence necessary to prove the allegations, differs between criminal charges and a civil, domestic proceeding.
In criminal court, the legal standard is Proof Beyond a Reasonable Doubt. The State carries the Burden of Proof.
The Defendant carries no responsibility to present evidence or prove guilt or innocence. The Defendant cannot be called as a witness by the opposing party, the State.
In civil court, the Plaintiff need only show by the greater weight of the evidence that something happened.
The Burden of Proof and production of evidence is carried by the Plaintiff in a civil cause of action.
And unlike criminal charges, the Defendant may be called as a witness by the opposing party and/or their legal representative (attorney).
The defendant-respondent may assert their 5th Amendment Right against Self Incrimination, declining to testify or answer questions under oath, but that can carry negative, adverse consequences to the civil claim to which he or she is a party.
That legal standard in civil court is called the Preponderance of Evidence or the “greater weight of the evidence.”
With some limited, but notable exceptions, that is the common level or standard of proof for lawsuits, including Complaints and Motions for DVPO under Chapter 50B.
The person accused of wrongdoing is referred to the “defendant” in both civil causes of action and those subject to criminal prosecution by the State of North Carolina.
In both instances, the Defendant is entitled to some level of advance notice of the allegations against him or herself. In criminal court that often is achieved by way of a Criminal Summons, Indictment, Bill of Information, or Uniform Citation.
In civil court, the “Complaint” or “Complaint and Motion” must set forth sufficient facts to establish the cause of action, at least in general terms, proving subject matter jurisdiction and personal jurisdiction over the parties (by the Court) to hear the claims.
In a civil case involving allegations of domestic violence, it is proper for a trial court to accept into evidence, in certain circumstances, things that may have not technically complained of or “pleaded” in the lawsuit or complaint.
The key is that the Complaint, which is the legal filing, is required to provide notice, to a sufficient level, of the basis and nature of “un-pleaded” allegations.Notice Pleading
North Carolina is what lawyers refer to as a “notice-pleading” state. Pleadings are the allegations by one party in a lawsuit or “complaint” against another.
Pleadings need to set forth a, “[s]hort and plain statement of the claim” that is specific or particular enough to the give the parties and the Court notice of what happened.
That “notice” may include things that explain what happened, occurrences, transactions or a series of transactions.
The person making the allegations in their Complaint essentially makes it formally known that they intend to show or otherwise prove they are entitled to the relief sought.
That’s consistent with the North Carolina Rules of Civil Procedure, as set forth in N.C.G.S. § 1A-1, and found within Rule 8(a)(1).
Under the notice-pleading laws, the allegations within a Complaint will suffice if there is sufficient notice of the nature of the allegations and the basis for the Plaintiff’s Complaint and Prayers for Relief.
The Rules of Civil Procedure are there to provide the Defendant an opportunity to file an Answer or other responsive pleadings (counterclaims, motions to dismiss, etc.) and prepare for trial.
Our courts review, as to the form, the adequacy of pleadings.
North Carolina does not require pleadings that set forth every allegation or misdeed in great detail.
But, the Rules do require some level of specificity, such that the Court, as well as the responding Defendant, has a “fair idea” of the Plaintiff’s complaints.
Both the Defendant and the Court should be able to see there is a legal basis for relief as sought pursuant to the Complaint.Consequences of a DVPO
Regarding domestic violence restraining orders, there are legal and non-legal consequences, some of which may be collateral in nature.
Restraining Orders can do things like restrict where the Defendant may be or what property the Defendant may use or possess.
Courts may also consider whether a prior 50B Order has been issued in custody actions for children, thus drawing a negative inference from prior acts of violence.
One collateral consequence to being found, by judicial determination, to be a domestic abuser, is the tremendous social stigma.
There is a negative consequence to a legal ruling and found, as a matter of law, to have committed acts of domestic violence.
People applying for jobs, licenses, positions with the government, and even applicants to school, are commonly asked to provide information regarding whether they have been subject to an DVPO.
Because the potentially long-lasting, significant consequences of being accused of domestic violence, the Courts have found it “imperative” for the person accused, the Defendant, receive sufficient or “adequate notice” of the Complaint and its allegations.Similar Family Law Legal Issues
- Domestic Violence
- Domestic Violence Protective Orders in North Carolina
- Restraining Order
- Civil Contempt vs Criminal Contempt
- Criminal Contempt in Charlotte NC
50B / Domestic Violence Protective Orders are heard in District Court before a District Court Judge. They are NOT determined by juries.
Appeals of Court Orders, while somewhat rare, do occasionally result in relief from the NC Court of Appeals.
In reviewing an DVPO, at the appellate level, the Court of Appeals conducts a limited inquiry.
It asks, “Is there competent evidence to support the trial court’s findings of fact?”
If there is competent evidence, as indicated in the transcript of the trial, the Findings of Fact are deemed to be binding. Cases are not “re-tried” in the Court of Appeals or Supreme Court.
In the event an error is made, the Appellate Courts don’t generally decide things like child custody, support, or even Equitable Distribution. If there is an error, the matter is sent back down to the District Court level for either further findings and if appropriate, a new trial or hearing on the subject matter.
Competent Evidence is proof of facts that a reasonable person (reasonable mind) might accept as adequate to support the finding at issue.
Given family law issues tend to be “non jury” proceedings, a ruling or judgment of the Family Court Judge will not be overturned, even if the findings are later determined to be “erroneous,” unless they affect the Conclusions made by the Court.What is Domestic Violence in North Carolina?
Acts of domestic violence may be a single action or more than one acts by the Defendant on the victim or a minor child who lives with, resides, or is the custody of the victim.
Domestic Violence and “acts of domestic violence,” by statute, do not include self-defense or acts related to defense of self.
Acts of domestic violence may include things like:
- Bodily Injury
- Attempting to Cause Bodily Injury
- Placing the victim in fear of serious, immediate/imminent, bodily injury
- Placing the victim in fear of continued harassment, rising to the level of inflicting emotional distress to a substantial level
North Carolina is a notice pleading state, which means the basic assertions of the acts of domestic violence should be set forth with clarity.
Pleadings (the Complaint or “Lawsuit”) normally include the name of the Plaintiff, the name of the Defendant or Respondent, and proof the Court has both personal jurisdiction and subject matter jurisdiction over the dispute.
As such, pleadings often include the county where things took place, the State (North Carolina), and further include “Prayers for Relief,” which are the sought-after remedies.Domestic Lawyers in Charlotte NC – Powers Law Firm PA
The family law attorneys at our law firm are courtroom advocates and dedicated legal professionals.
We help people with civil and criminal charges involving allegations of domestic violence, assaults, assault and battery, etc. It doesn’t matter if the charges are a misdemeanor or felony or whether they involve a separate legal action for the DVPO. We’re here to help.
You may reach Bill Powers by email at Bill@CarolinaAttorneys.com
Call NOW to schedule a legal consultation. 704-342-4357