People residing within North Carolina may seek a form of Court Ordered “relief” from Acts of Domestic Violence.
N.C.G.S. Chapter 50B provides for the opportunity to file a civil lawsuit, known as a Complaint and Motion for Domestic Violence Protective Order or “DVPO.”
A complaining party may also file a supplementary motion in a pre-existing lawsuit/civil action, including pursuant to the divorce and alimony laws as described within Chapter 50 of the General Statutes.
Relief from Acts of Domestic violence may include allegations of domestic violence against the plaintiff him or herself and may further include relief sought for a minor child who is in the custody of the plaintiff or resides with the plaintiff.
Acts of Domestic violence may involve criminal charges, including but not limited to:
- Simple Assault
- Assault of a Female
- Injury to Personal Property
- Communicating Threats
- Felony Assault by Strangulation
- Harassing Phone Calls
A civil cause of action seeking relief pursuant to a DVPO is within the jurisdiction of a District Court Judge. Issues of law and fact are determined and resolved by a Judge and not a jury in North Carolina.
A Complaint is brought when the plaintiff resides in North Carolina.
As a form of a civil lawsuit, the Standard of Proof is By the Greater Weight of the Evidence, meaning the allegations must be proven by the Plaintiff indicating it is “more likely than not” the DV took place.
Civil actions for relief are separate and apart from related criminal charges.
While the nature of the claims may be predicated on the same allegations and criminal acts, 50B is provides for protection from future or continued domestic violence where criminal court ordinarily focuses on punishment for past instances of conduct.
In the event a District Court judge finds an act or acts of DV took place, the Court is mandated to issue an Order of Protection.
Caselaw specifically utilizes the word of mandamus writing, “[T]he court shall grant a protective order restraining the defendant from further acts of domestic violence.” N.C. Gen. Stat. § 50B-3(a)
The Court in making such a “finding” does so as a matter of law.
By definition, DV in North Carolina involves putting the plaintiff (the aggrieved party) or someone in the plaintiff’s household or family in fear of serious bodily injury. Such “fear” must be fear of imminent harm.
Harassment may also serve as a basis for relief, where the harassment is to such level, nature, or extent that has or may inflict emotional distress. Emotional distress must be substantial.Fear of Continued Harassment
Harassment under Chapter 14 Criminal Laws of North Carolina requires proof of intentional conduct. One must knowingly and intentionally commit the act or acts.
Harassment has been defined as acts that:
There must be no legitimate purpose for the conduct. N.C.G.S. § 14-277.3A(b)(2)
The trial court, in making its ruling, applies what family law attorneys refer to as a “subjective test” in determining whether the plaintiff was in actual fear of substantial emotional distress or imminent bodily injury.
That level of fear need not be objectively reasonable given the facts and circumstances of the allegations and evidence presented at trial.
Whether the conduct of the Defendant had a legitimate purpose is a factual inquiry for the Court.Legitimate Purposes of Contact and Communications
In the family law context, it is not unusual for the Court to issue an Order of Protection pursuant to Chapter 50B, allowing for future contact and communications between the parties and/or minor children, for the purpose of parenting.
Ordinarily the language of the Order would preclude admonitions against further acts of domestic violence, threatening, terrorizing, and tormenting behavior.
DV is not limited to personal contact.
Communications via telephone, email, texts, social media, and other methods of contact are subject to any DVPO issued.
Custody Orders that include a “no-contact Provision” are also authorized under the family laws.
Judges are given broad discretion in setting the terms and conditions of Orders, including Visitation Orders, and those involving child custody, to ensure future acts of DV do not take place and to further ensure overall compliance with the Court’s directives.
As such, a Court may prohibit the defendant from contacting the plaintiff “in any manner.”
It may also prohibit a defendant from contacting children in any manner, subject to further conditions and restrictions deemed necessary and proper by the Court for the minor child’s safety and well-being.
Visitation therefore may be impacted and limited, as the Court Orders.
The “best interests” of the child or children are said to be “polar star” by which the District Court Judge is guided in their rulings.Emotional Distress
In review of any Court Order regarding a violation of a DVPO, the NC Court of Appeals determines whether the underlying Findings of Fact by the family court/district court judge are supported by competent evidence.
Evidence of prior acts of domestic violence is admissible in such proceedings.
Competent evidence may further take into consideration evidence adduced at trial, including victim testimony and testimony from friends, family, and co-workers, as may deemed relevant and admissible by the Court.
Testimony may include evidence of acts of domestic violence and the effects of contact and communications on the plaintiff or minors in the plaintiff’s custody or household.
That necessarily includes evidence of substantial emotional distress.
In North Carolina, the Courts have defined such to include significant mental suffering. The result of the substantial emotional distress may be supported by evidence of medical treatment, counseling, or other professional treatment.
Proof of professional or medical treatment is not required to make a prima facie showing of emotional distress in the family law context.
That may differ for similar causes of action under the tort laws of NC, including intentional infliction of emotional distress and the negligent infliction of emotional distress.
Testimony of the plaintiff, considered with a defendant’s unwelcome, repeated contact, has been found to be sufficient competent evidence of substantial emotional distress.Adequate Findings of Fact
Conclusions of law at the trial court level, regarding acts of domestic violence, will not be overturned unless they are not supported by adequate findings of fact and are erroneous.
Appeals for family law cases, those involving violations of a DVPO, are “strictly limited” to whether the Findings of Fact by the District Court Judge are supported by competent evidence.
Assuming such is the case, the Court’s ruling on the matter is “conclusively binding on appeal.” The Findings of Fact must support the Conclusions of Law.
Findings may not be vague.
The Court cannot cite as a basis for finding an act of domestic violence occurred a general “history of abuse.” N.C. Gen. Stat. § 50B-3(a).Charlotte Domestic Violence Lawyers
Our family law attorneys assist clients with DVPO cases in Mecklenburg County. It can be an intricate if not complicated area of law.
They require careful consideration of the interaction between the civil laws of North Carolina, including Chapter 50, which impacts divorce and alimony, and Chapter 50B, the NC domestic violence law.
If you are a victim of domestic violence, we strongly encourage you to seek help.
That may begin with speaking with legal counsel and securing legal representation without delay.
Victims of domestic violence may feel helpless, paralyzed by fear and uncertainty.
We believe good decisions are predicated on helpful, relevant information regarding your legal rights under the NC family laws.
Charlotte family law attorneys provide information and guidance regarding your legal options. We regularly direct clients to treatment facilities.
More importantly, we proceed with all due haste in filing a Complaint and Motion for Domestic Violence Protective Order (DVPO) when proper.
Communications with our law firm, after formal consultation and/or if properly retained, are subject to attorney-client privilege.
We encourage you to call and schedule a confidential consultation.
Our firm does charge a consultation fee for family law matters, including legal representation for divorce, alimony, child support, child custody, and serving as Plaintiff’s counsel on a civil filing for Chapter 50B DVPO.
If you are the victim of criminal acts and are in immediate danger, call 911.Related Family Law Information