Domestic violence in Charlotte, North Carolina

Domestic Violence is an extremely sensitive topic, which carries strong stigmatic effects. If you or a loved one has been abused or is being accused of harming another, we can help. In North Carolina, a Restraining Order is legally classified as a 50B Domestic Violence Protective Order (DVPO). It is a civil order signed by a district judge or magistrate, that places particular restrictions on an individual, and limits that individual from contacting another. Restraining Orders-Domestic Violence Protective Orders can be filed by any individual or family member who is in fear of imminent bodily harm from another. Commonly, a Restraining Order arises once an individual is criminally charged with Assault, Battery, Assault on a Female, Harassment, Stalking, or Communicating Threats.

Domestic Violence extends beyond a Plaintiff and Defendant, but affects a family as a whole. Many times children will be involved along with the Department of Social Services. In situations involving Domestic Violence and 50B Protective Orders-Restraining Orders, planning is key. By hiring a Lawyer familiar with Family and Criminal Law, we can help you get the result you deserve by strategically formulating the proper course of action.

Our Family and Criminal Lawyers assist individuals in obtaining 50B Domestic Violence Protective Orders and regularly defend individuals whom Restraining Orders are being brought against. Sheehan to speak with an Attorney today.

What this covers

• What Legal Threshold Must Be Met for Domestic Violence?
• What happens if I violate a Charlotte Domestic Violence Protective Order?
• How long will a 50B Order stay in effect?
• What happens if a 50B Domestic Violence Protective Order is granted?
• How is a 50B Domestic Violence Protective Order Obtained?
• What Happens if I’m Arrested for Domestic Violence?

What North Carolina counts as domestic violence under G.S. 50B-1

In North Carolina, domestic violence is a defined statutory term rather than a general description of a difficult relationship. G.S. 50B-1(a) defines it as the commission of one or more listed 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”. The listed acts are attempting to cause bodily injury or intentionally causing bodily injury; placing the aggrieved party, or a member of that party’s family or household, in fear of imminent serious bodily injury or in fear of continued harassment, as harassment is defined in G.S. 14-277.3A, that rises to such a level as to inflict substantial emotional distress; and committing any act defined in G.S. 14-27.21 through G.S. 14-27.33, the article covering rape and other sexual offenses. Conduct that falls outside those three descriptions is not domestic violence for the purposes of Chapter 50B, however distressing it is.

The personal relationship requirement in G.S. 50B-1(b) decides whether Chapter 50B is available at all. The subsection lists parties who are current or former spouses; persons of the opposite sex who live together or have lived together; parties related as parent and child, including anyone acting in loco parentis to a minor child, or as grandparent and grandchild; parties who have a child in common; current or former household members; and persons of the opposite sex who are in a dating relationship or have been in one. Subdivision (b)(3) carries a limit that is easy to miss: for the purposes of that subdivision alone, an aggrieved party may not obtain an order of protection against a child or grandchild under the age of 16, so a defendant under 16 who falls within one of the other five categories is not excluded by it. The opposite-sex wording in the cohabitation and dating categories has not survived intact either. In M.E. v. T.J., 854 S.E.2d 74 (N.C. Ct. App. 2020), the Court of Appeals held the exclusion of same-sex dating relationships from G.S. 50B-1(b)(6) unconstitutional as applied, and the Supreme Court left that holding undisturbed in M.E. v. T.J., 2022-NCSC-23.

The dating category also carries its own internal definition, and the exclusion that goes with it belongs to that category alone rather than to the subsection as a whole. Within G.S. 50B-1(b)(6), a dating relationship is one in which the parties are romantically involved over time and on a continuous basis during the course of the relationship, and the subdivision expressly provides that a casual acquaintance, or ordinary fraternization between people in a business or social context, is not a dating relationship. That carve-out says nothing about the other five categories: a former household member or a party with a child in common qualifies under the subsection whether or not the parties were ever romantically involved.

Where the parties have no personal relationship within G.S. 50B-1(b), Chapter 50C is not a catch-all substitute. A civil no-contact order under G.S. 50C-2 may be commenced by a person who is the victim of unlawful conduct occurring in this State, or by a competent adult residing in this State on behalf of a minor child or an incompetent adult who is such a victim, but “unlawful conduct” is narrowly defined. G.S. 50C-1(7) limits it to nonconsensual sexual conduct, including a single incident, or stalking, in either case committed by a person 16 years of age or older and excluding acts of self-defense or defense of others. G.S. 50C-1(8) then defines a victim as a person subjected to that conduct by someone who is not in a personal relationship with them as defined in G.S. 50B-1(b). The relationship between the parties therefore decides whether Chapter 50B is open, but the conduct decides whether Chapter 50C is: a stranger, neighbor or co-worker who assaults someone once, or threatens them once, gives rise to no claim under either chapter, and a reader in that position needs to be looking at criminal process rather than at a 50C complaint.

Where a 50B action is filed, and how it can sit inside an existing family case

In North Carolina a 50B case is a civil action in the district court division. G.S. 50B-2(a) provides that a person residing in this State may seek relief “by filing a civil action or by filing a motion in any existing action filed under Chapter 50 of the General Statutes”. In Mecklenburg County that means the district court in Charlotte, and it means a protective order can be sought inside a custody, separation or divorce file that is already open instead of as a standalone case. Where a custody claim is already pending, that route puts the same facts in front of the file that already holds the parties’ history.

The statute is drafted so that a party can begin without counsel. G.S. 50B-2(a) provides that “[a]ny aggrieved party entitled to relief under this Chapter may file a civil action and proceed pro se, without the assistance of legal counsel”. The same subsection provides that any action for a domestic violence protective order requires that a summons be issued and served, and that the summons shall require the defendant to answer within 10 days of the date of service. On costs, the subsection is expressed as 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, except as provided in G.S. 1A-1, Rule 11. That closing exception matters, because Rule 11 is the sanctions rule, and it leaves open the possibility of a cost or fee award against a party whose filing is not well grounded.

Employment is protected while a party pursues an order, though the protection is conditional rather than absolute. G.S. 50B-5.5(a) provides that “[n]o 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.” The same section requires the employee to follow the employer’s usual time-off policy or procedure, including advance notice, unless an emergency prevents it, and allows the employer to require documentation of the emergency or of the relief sought. Enforcement lies with the Commissioner of Labor under Article 21 of Chapter 95 rather than through a free-standing action in the 50B file.

The ex parte order comes first, and the contested hearing follows within days

In North Carolina a 50B case normally proceeds in two stages. At the first stage the district court may enter an ex parte order under G.S. 50B-2(c) where 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, in which case the court may enter such orders as it deems necessary to protect them. The verb is permissive: the finding opens the door to relief, it does not compel it. The defendant has not been served and is not present, so the judge hears one account only. Ex parte relief that includes temporary custody is fenced off separately, because a temporary order for custody ex parte 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”.

The second stage is a hearing on notice, and it comes quickly. G.S. 50B-2(c) requires the hearing to 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. That is the hearing at which both parties give evidence and at which the order is either entered for a fixed term or denied.

Outside court hours a magistrate may act. G.S. 50B-2(c1) allows a magistrate authorized by the chief district court judge to hear a motion for emergency relief ex parte, and confines that authority to times when 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. An order entered that way is short-lived, and the deadline that follows it is tied to the court calendar rather than to the clock: the order expires and the magistrate schedules 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. Over a weekend or a holiday that is not the next calendar day.

The finding required at the hearing is set by G.S. 50B-3(a): “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. That much is mandatory once the finding is made; the further relief described below is not. Chapter 50B is civil, so the plaintiff carries the ordinary civil burden of proof rather than the criminal one, and the order rests on written findings of fact that an appellate court reviews for whether competent evidence supports them.

What a domestic violence protective order can require a party to do

In North Carolina the relief available in a protective order is listed in G.S. 50B-3(a), and it reaches a long way past a direction to stay away. A single order can address where the parties live, who the children live with and what is paid each month. The statute is framed in discretionary terms once the threshold finding has been made: the court may grant any or all of the following relief, and which items appear in a given order is a matter for the judge on the evidence.

The abuser treatment item is itself conditional. G.S. 50B-3(a)(12) allows the court to order a party it finds responsible for acts of domestic violence “to attend and complete an abuser treatment program if the program is approved by the Domestic Violence Commission”, so an unapproved program is not a lawful substitute.

• Direct a party “to refrain from such acts” of domestic violence
• Grant one party possession of the residence or household of the parties and exclude the other from it
• Require a party to provide a spouse and his or her children suitable alternate housing
• Award temporary custody of minor children and establish temporary visitation rights
• Order the eviction of a party from the residence or household and assistance to the victim in returning to it
• Order either party to make payments for the support of a minor child as required by law
• Order either party to make payments for the support of a spouse as required by law
• Provide for possession of personal property, including the care, custody and control of any animal owned, possessed, kept or held as a pet by either party or by a minor child in the household
• Order a party to refrain from threatening, abusing or following the other party, from harassing that party by telephone, by visiting the home or workplace or by other means, from cruelly treating or abusing an animal owned or kept by either party or by a minor child, and from otherwise interfering with the other party
• Award attorney’s fees to either party
• Prohibit a party from purchasing a firearm for a time fixed in the order
• Order a party found responsible for acts of domestic violence to attend and complete an abuser treatment program approved by the Domestic Violence Commission
• Include any additional prohibitions or requirements the court deems necessary to protect any party or any minor child

A 50B order runs for up to a year, and renewal can add up to two more

In North Carolina a protective order has a fixed life. G.S. 50B-3(b) provides that orders entered under Chapter 50B “shall be for a fixed period of time not to exceed one year”, and that the court “may renew a protective order for good cause” for a fixed period of time not to exceed two years, on a motion by the aggrieved party filed before the current order expires. Renewal does not require proof that anything new has happened: the subsection states that commission of an act as defined in G.S. 50B-1(a) after entry of the current order is not required for the order to be renewed. Where the renewal hearing is set for a date after the current order would lapse, the same subsection allows the court, on the plaintiff’s ex parte application, temporarily to renew the current order for a fixed period ending no later than the date of the renewal hearing or 30 days from the expiry date, whichever comes first.

Temporary custody inside a protective order is treated differently from the rest of the relief. G.S. 50B-3(a1)(4) provides that a temporary custody order entered under the Chapter “shall be without prejudice and shall be for a fixed period of time not to exceed one year”, and G.S. 50B-3(b) adds that a temporary award of custody entered as part of a protective order may not be renewed to extend custody beyond that one-year maximum. The same subdivision preserves the right of the parties to a de novo hearing under Chapter 50, which is where custody beyond the life of the protective order has to be decided.

Once entered, the order is distributed and recorded rather than left with the parties. G.S. 50B-3(c) requires a copy of any order entered and filed under the Article to be issued to each party. G.S. 50B-3(d) requires the sheriff of the county where the order is entered, which in a Charlotte case is the Mecklenburg County Sheriff’s Office, to “provide for prompt entry of the order into the National Crime Information Center registry” and to provide magistrates with access to those orders on a 24-hour-a-day basis.

Firearm surrender is ordered on an emergency or ex parte order where G.S. 50B-3.1 findings are made

In North Carolina a protective order can strip a defendant of firearms, but the duty to order surrender is narrower than it is often described. G.S. 50B-3.1(a) attaches on the issuance of an emergency or ex parte order under Chapter 50B, and it directs the court to order surrender only if it finds one of four things: 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; threats to seriously injure or kill the aggrieved party or a minor child; threats by the defendant to commit suicide; or serious injuries inflicted on the aggrieved party or a minor child by the defendant. Absent one of those findings the section does not require a surrender order, and a separate provision, G.S. 50B-3(a)(11), allows the court to prohibit a party from purchasing a firearm for a time fixed in the order.

What must be surrendered where the section does apply is “all firearms, machine guns, ammunition, permits to purchase firearms, and permits to carry concealed firearms” in the defendant’s care, custody, possession, ownership or control. G.S. 50B-3.1(b) directs the court to inquire of the plaintiff about the defendant’s ownership of, possession of, or access to firearms, ammunition and permits, and to include identifying information about their description, number and location in the order wherever possible.

Surrender is immediate on service of the order. Where the weapons cannot be handed over then, G.S. 50B-3.1 requires surrender “within 24 hours of service at a time and place specified by the sheriff”, and provides that “[t]he sheriff shall store the firearms or contract with a licensed firearms dealer to provide storage”. Return is not automatic and it is not indefinite. The defendant may request return by filing a motion at the expiration of the current order, or on the final disposition of any pending criminal charges committed against the person protected by that order, and not later than 90 days after that expiration or disposition. Where no motion is filed within the period allowed, or the defendant is precluded from owning or possessing a firearm, the sheriff must give notice to the defendant and apply to the court for an order of disposition, and the judge may order disposal after a hearing.

Possession while the order is in force is a separate crime where the court has ordered it. G.S. 14-269.8 makes it unlawful for a person to possess, purchase or receive, or attempt to possess, purchase or receive, a firearm where the court has so ordered under Chapter 50B, for as long as that protective order or any successive protective order is in effect, and makes a violation a Class H felony. Federal law adds its own prohibition under 18 U.S.C. 922(g)(8) for a person subject to a qualifying order.

Violating a 50B order is contempt and a crime at the same time

In North Carolina a protective order is enforced on two tracks. On the civil track, G.S. 50B-4(a) provides that a party may file a motion for contempt for violation of any order entered under the Chapter, using forms provided by the clerk of superior court or a magistrate, and may do so without an attorney. On the criminal track, G.S. 50B-4.1(a) makes it a Class A1 misdemeanor for a person knowingly to violate a valid protective order entered under the Chapter, and G.S. 50B-4.1(b) directs a law enforcement officer to arrest and take into custody, with or without a warrant, a person the officer has probable cause to believe has knowingly violated an order excluding that person from the residence or household occupied by a victim, or directing that person to refrain from any or all of the acts specified in G.S. 50B-3(a)(9).

The criminal exposure escalates, and each escalating provision is expressed as a floor rather than a ceiling, applying unless the conduct is covered by some other provision of law providing greater punishment. Under G.S. 50B-4.1(g), a person who knowingly violates a valid protective order by failing to stay away from a place or a person as directed by the order, while in possession of a deadly weapon, is guilty of a Class H felony. Under G.S. 50B-4.1(f), a knowing violation after having been previously convicted of two offenses under the Chapter is a Class H felony. Under G.S. 50B-4.1(d), a person who commits a felony at a time when they know the behavior is prohibited by a valid protective order is guilty of a felony one class higher than the principal felony, though that subsection does not apply to a Class A or Class B1 felony or to the offenses in subsections (f) and (g). G.S. 50B-4.1(e) requires the charging document to allege the knowing violation and requires a finding that the violation occurred in the course of conduct constituting the underlying felony.

Enforcement does not stop at the county line or the state line. G.S. 50B-4(c) provides that a valid protective order entered under the Chapter “shall be enforced by all North Carolina law enforcement agencies without further order of the court”. G.S. 50B-4(d) provides that a valid protective order entered by the courts of another state or of an Indian tribe shall be accorded full faith and credit 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”.

How a protective order affects custody, support and alimony in the family case

In North Carolina a finding of domestic violence follows the parties into the Chapter 50 file. G.S. 50-13.2(a) requires a custody court to consider “all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party”, and provides that an order for custody must include written findings of fact that reflect the consideration of each of those factors and that support the determination of what is in the best interest of the child. That is a mandatory consideration, not an optional one, though it does not dictate any particular result.

Domestic violence also affects how the custody case is processed, and both halves of the mediation rule are conditional. G.S. 50-13.1(b) provides that where there is a program established pursuant to G.S. 7A-494, a contested custody or visitation matter shall be set for mediation of the unresolved issues; in a county with no such program, the setting requirement does not bite. G.S. 50-13.1(c) then allows the court, on the motion of either party or on its own motion, to waive that setting for good cause, which “may include, but is not limited to, undue hardship to a party, an agreement between the parties for voluntary mediation, allegations of abuse or neglect of the minor child, allegations of alcoholism, drug abuse, or domestic violence between the parents in common, or allegations of severe psychological, psychiatric, or emotional problems”. Where an active protective order restrains contact between the parties, that is a circumstance a court may treat as good cause for a waiver, but the statute says “may waive”, and the decision stays with the judge.

On the financial side, conduct of this kind can be marital misconduct. G.S. 50-16.1A(3) defines marital misconduct to include “cruel or barbarous treatment endangering the life of the other spouse” and indignities rendering the condition of the other spouse intolerable and life burdensome, where the act occurred during the marriage and prior to or on the date of separation. Under G.S. 50-16.3A(b)(1) marital misconduct is the first of the listed factors the court considers in setting the amount, duration and manner of payment of alimony, and G.S. 50-16.3A(c) requires the court to make a specific finding of fact on each factor for which evidence is offered. The mandatory rules in G.S. 50-16.3A(a) that bar or compel an award are tied to illicit sexual behavior specifically, not to marital misconduct generally, so violent conduct enters the alimony analysis as a weighted factor rather than as an automatic bar or entitlement.

A 50B order does not, however, settle the family case. Temporary custody entered under G.S. 50B-3(a1) is without prejudice and expires with the order, and the same subdivision preserves the right of the parties to a de novo hearing under Chapter 50. The protective order and the custody action answer different questions on different records.

The criminal charge that often runs alongside a 50B case

In North Carolina the same incident frequently produces both a 50B action and a criminal charge, and the two proceed separately. Charges commonly seen alongside a protective order include assault on a female under G.S. 14-33(c)(2), which applies where the defendant is a male person at least 18 years of age and is a Class A1 misdemeanor; communicating threats under G.S. 14-277.1, a Class 1 misdemeanor; stalking under G.S. 14-277.3A; and domestic criminal trespass under G.S. 14-134.3. The trespass offense carries its own relationship limit: subsection (a) reaches a person who enters after being forbidden, or remains after being ordered to leave, premises occupied by a present or former spouse or by a person with whom the person charged has lived as if married, and only where the complainant and the person charged are living apart, which the statute says may be shown by, among other things, a judicial order of separation, a court order directing the person charged to stay away, an agreement between the parties (verbal or written) to live separate and apart where they are in fact doing so, or separate places of residence. That offense is a Class 1 misdemeanor; subsection (b) raises it to a Class G felony where the trespass is on property operated as a safe house or haven for victims of domestic violence and the person is armed with a deadly weapon.

Pretrial release is handled differently in these cases, and the section that does it is limited to particular charges and particular relationships. G.S. 15A-534.1 applies where the defendant is charged with assault on, stalking, communicating a threat to, or committing a felony against a spouse or former spouse, a person with whom the defendant lives or has lived as if married, or another person named in the section, or is charged with domestic criminal trespass or with violating a domestic violence protective order. In those cases “the judicial official who determines the conditions of pretrial release shall be a judge”, and a defendant “may be retained in custody not more than 48 hours from the time of arrest without a determination being made under this section by a judge”. If a judge has not acted within that period, the magistrate acts under the section. The conditions the section authorizes include directing the defendant to stay away from the home, school, business or place of employment of the alleged victim and to refrain from assaulting, beating, molesting or wounding that person, so a criminal no-contact condition can run alongside a 50B order. The two timetables are independent of one another, and neither result binds the other court.

What defending a 50B claim involves

In North Carolina a defendant in a 50B case faces a civil hearing whose consequences reach well beyond the civil file. An order under G.S. 50B-3 can exclude a person from a home they own or rent, alter daily contact with their children for up to a year, impose child support and spousal support obligations, and be entered into a national registry, and where the court makes one of the findings in G.S. 50B-3.1(a) on an emergency or ex parte order it can require surrender of firearms as well.

The court cannot enter an order without the finding G.S. 50B-3(a) requires, that an act of domestic violence has occurred, supported by findings of fact. Three questions are therefore open to a defendant on the record: whether the parties had a personal relationship within one of the categories in G.S. 50B-1(b), whether the conduct alleged falls within one of the acts listed in G.S. 50B-1(a), and whether the conduct was self-defense, which G.S. 50B-1(a) expressly places outside the definition.

The timetable is compressed. Because G.S. 50B-2(c) sets the hearing within days of the ex parte order, messages, photographs, medical records and witnesses have to be gathered inside that window, and the summons under G.S. 50B-2(a) requires an answer within 10 days of service. Where a criminal charge arising from the same incident is pending, everything said at the 50B hearing is said under oath while that charge remains unresolved, which is a matter to weigh with counsel before the hearing rather than at it.

DPS Law acts for parties seeking domestic violence protective orders and for parties defending against them in Mecklenburg County District Court, and handles the related criminal charge where one has been brought.

Common questions

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.