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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

  • How Is a 50B Domestic Violence Protective Order Obtained?
  • What Legal Threshold Must Be Met for Domestic Violence?
  • How Long Will a 50B Order Stay in Effect?
  • What Happens if a 50B Domestic Violence Protective Order Is Granted?
  • What Happens if I Violate a Charlotte Domestic Violence Protective Order?
  • What Happens if I’m Arrested for Domestic Violence?

What North Carolina law actually counts as domestic violence

In North Carolina, domestic violence is defined by statute rather than by how serious an incident looks. Under G.S. 50B-1(a) it means the commission of one or more of three kinds of act 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”. The three acts are attempting to cause 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 of continued harassment, as harassment is defined in G.S. 14-277.3A, that rises to a level inflicting substantial emotional distress; and committing one of the sexual offenses set out in G.S. 14-27.21 through G.S. 14-27.33. The same subsection says the definition “does not include acts of self-defense”.

The personal relationship requirement in G.S. 50B-1(b) is the part most often missed. It lists current or former spouses; persons who live together or have lived together; parents and children, including others acting in loco parentis to a minor child, and grandparents and grandchildren — though G.S. 50B-1(b)(3) provides that an aggrieved party may not obtain an order of protection against a child or grandchild under the age of 16; parties who have a child in common; current or former household members; and persons in a dating relationship or who have been in one. As written, two of those categories — cohabitation in G.S. 50B-1(b)(2) and dating relationships in G.S. 50B-1(b)(6) — are limited to persons “of the opposite sex”. In M.E. v. T.J., 275 N.C. App. 528 (2020), the Court of Appeals held the opposite-sex limitation in the dating-relationship category, 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. That decision reached the dating-relationship category only. No appellate court has struck the parallel wording in the cohabitation category, and in practice the point rarely has to be argued, because persons who live together or have lived together will ordinarily also qualify as current or former household members under G.S. 50B-1(b)(5), which carries no opposite-sex limitation.

Where no personal relationship exists, Chapter 50B does not apply at all. That does not mean another civil order is always waiting. A no-contact order under Chapter 50C is open only to a victim of “unlawful conduct”, which G.S. 50C-1 defines as nonconsensual sexual conduct or stalking, committed by a person “not involved in a personal relationship” with the victim. An assault or a threat by a neighbor, a colleague or a relative outside the listed degrees answers neither definition, and the remedy in that situation is a criminal charge or an ordinary civil action rather than either statutory order. Filing the wrong action is a common reason a case is dismissed before anyone reaches the facts.

The civil 50B case and the criminal charge run on separate tracks

In North Carolina one incident routinely produces two proceedings that do not control each other. The protective order is a civil action. G.S. 50B-2(a) provides that “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”, and gives the district court division of the General Court of Justice original jurisdiction. That same subsection provides that no court costs or attorneys’ fees are assessed for the filing, issuance, registration or service of a protective order or a petition for one, except under G.S. 1A-1, Rule 11.

The criminal charge belongs to the State. The complaining witness does not control it. Under G.S. 15A-931 the prosecutor may dismiss a charge by oral dismissal in open court or by written dismissal filed with the clerk, and a request from the alleged victim is one input into that decision rather than the decision itself. In Mecklenburg County the District Attorney’s office decides whether a domestic violence charge proceeds, on what facts, and to what resolution.

The practical consequence is that a defendant can face a civil hearing and a criminal calendar within days of each other, decided by different judges on different standards. Testimony given at the 50B hearing is a matter of record and is available to the State in the criminal case. The order in which the two matters are addressed is therefore a real decision, not a scheduling detail.

The criminal charges that most often carry a domestic violence designation

In North Carolina there is no single offense called “domestic violence”. The conduct is charged under ordinary assault, threat and harassment statutes, and the domestic character of the case is recorded separately. The charges that most commonly appear alongside a Chapter 50B action are these.

  • Simple assault, assault and battery or simple affray under G.S. 14-33(a), a Class 2 misdemeanor
  • Assault inflicting serious injury or with a deadly weapon under G.S. 14-33(c)(1), and assault on a female under G.S. 14-33(c)(2) where the defendant is “a male person at least 18 years of age”, both Class A1 misdemeanors
  • Assault inflicting serious bodily injury under G.S. 14-32.4(a), a Class F felony, and assault inflicting physical injury by strangulation under G.S. 14-32.4(b), a Class H felony
  • Communicating threats under G.S. 14-277.1, a Class 1 misdemeanor
  • Misuse of the telephone, including repeated calls made for the purpose of abusing, annoying, threatening, terrifying, harassing or embarrassing, under G.S. 14-196, a Class 2 misdemeanor
  • Stalking under G.S. 14-277.3A, a Class A1 misdemeanor, rising to a Class F felony on a second stalking conviction and a Class H felony where a court order prohibiting the conduct is in effect
  • Domestic criminal trespass under G.S. 14-134.3, a Class 1 misdemeanor, and a Class G felony where the property is operated as a safe house for victims of domestic violence and the person is armed with a deadly weapon
  • Violation of a valid protective order under G.S. 50B-4.1

The domestic violence designation is recorded on the judgment itself

In North Carolina a conviction can be marked as a domestic violence case even where the offense charged is an ordinary misdemeanor. G.S. 15A-1382.1 requires the judge, where a defendant is found guilty of an offense involving assault, communicating a threat, or any of the acts defined in G.S. 50B-1(a), to determine whether the defendant and the victim had a personal relationship and, if so, to “indicate in the judgment of conviction that the case involved domestic violence”. The clerk must then see that the official record includes that determination, “so that any inquiry into the defendant’s criminal record will reflect that the offense involved domestic violence”.

That notation is why a Class 2 misdemeanor in this category behaves differently from the same offense in any other context. It is visible to employers, licensing bodies and any later court, because the statute directs that any inquiry into the defendant’s criminal record will reflect that the offense involved domestic violence. What the statute does not do is change the offense class, the elements or the sentencing exposure of any later charge; a prior conviction counts in the ordinary way for prior record level, designation or no designation. Probation is where the designation does have an operative consequence. G.S. 15A-1343(b)(12) makes attendance at and completion of an abuser treatment program approved by the Domestic Violence Commission a regular condition of probation where the court finds the defendant responsible for acts of domestic violence and such a program is reasonably available, unless the court finds that this would not be in the best interests of justice. G.S. 15A-1343(b) sets out the regular conditions a defendant “must” satisfy, so once those two findings are made the program is not an optional add-on that the court elects to impose.

Firearms are the consequence most people do not anticipate

In North Carolina a domestic violence protective order can strip firearm rights for as long as it lasts, and the mechanism sits in three separate statutes. G.S. 50B-3(a)(11) allows the court to “prohibit a party from purchasing a firearm for a time fixed in the order”. G.S. 50B-3.1 goes further: on an emergency or ex parte order the court is directed to order surrender of “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 where it makes one of the findings the statute lists — use or threatened use of a deadly weapon or a pattern of prior conduct involving the use or threatened use of violence with a firearm, threats to seriously injure or kill, threats to commit suicide, or serious injuries inflicted.

Surrender is to the sheriff. Where the items are not in the defendant’s possession when the order is served, G.S. 50B-3.1(d) requires surrender within 24 hours of service at a time and place the sheriff specifies, and the sheriff stores the firearms or contracts with a licensed dealer to do so. Failure to comply is a Class H felony under G.S. 50B-3.1(j). A separate offense sits in G.S. 14-269.8, and it depends on the court having made a firearm order in the first place: that section operates “in accordance with G.S. 50B-3.1” and applies “if ordered by the court”, making it unlawful to possess, purchase or receive, or attempt to possess, purchase or receive, a firearm, machine gun, ammunition or a permit to purchase or carry a concealed firearm for as long as that protective order or any successive protective order is in effect. A violation of that section is also a Class H felony. Where the court made none of the findings G.S. 50B-3.1(a) lists and the order contains no firearm term, G.S. 14-269.8 is not engaged by the order alone, and the restrictions are those the order actually states.

Return is not automatic. Under G.S. 50B-3.1(f) the defendant must file a motion for return no later than 90 days after the expiration of the order or the final disposition of any related criminal charges, and the court cannot order return where the defendant remains disqualified from possession under state or federal law. Where no motion is filed, the sheriff may move for disposal of the firearms.

Arrest and the first 48 hours in Mecklenburg County

In North Carolina an officer may arrest without a warrant for certain domestic violence misdemeanors that were not committed in the officer’s presence. G.S. 15A-401(b)(2) covers a misdemeanor under G.S. 14-33(a), 14-33(c)(1), 14-33(c)(2) or 14-34 where the offense was committed by a person with whom the alleged victim has a personal relationship, and a misdemeanor under G.S. 50B-4.1(a).

Pretrial release is then governed by G.S. 15A-534.1 rather than the ordinary rules. For charges of assault on, stalking, communicating a threat to, or committing certain felonies upon a spouse or former spouse, a person with whom the defendant lives or has lived as if married, or a person with whom the defendant is or has been in a dating relationship as defined in G.S. 50B-1(b)(6), and for domestic criminal trespass and violation of an order under Chapter 50B, the statute provides that “the judicial official who determines the conditions of pretrial release shall be a judge”. The section also provides that “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”, and that where a judge has not acted within that period the magistrate must act instead.

This is often described as a mandatory 48-hour hold. It is not. It is a rule about who sets the conditions of release and for how long that authority rests with a judge alone. A judge can act well inside the period, and the 48 hours is a ceiling on custody without a judicial determination rather than a minimum term.

Children, custody and the Department of Social Services

In North Carolina a 50B order can decide temporary custody, and that is often the part with the longest consequences. G.S. 50B-3(a)(4) allows the court to award temporary custody of minor children and establish temporary visitation rights. G.S. 50B-3(a1) directs the court to consider the best interest of the minor child with particular consideration given to safety, and sets out factors including whether the child was exposed to the violence, whether a weapon was used, whether serious injury was inflicted and whether visitation can be arranged without endangering the child.

Temporary custody under Chapter 50B is temporary in a strict sense. G.S. 50B-3(b) provides that a temporary award of custody entered as part of a protective order may not be renewed so as to extend the total award beyond one year from the date of entry of the initial order. Any longer arrangement has to be established in a custody action under Chapter 50. Where a report is made about the safety of a child, a separate juvenile proceeding under Chapter 7B may also follow, brought by the county department of social services rather than by either parent.

Where these matters are heard, and how the order reaches law enforcement

In North Carolina, Chapter 50B actions are heard in the district court division, which G.S. 50B-2(a) gives original jurisdiction over them; for Charlotte residents that means Mecklenburg County District Court. Ex parte relief is normally heard by a district court judge. G.S. 50B-2(c1) allows the chief district court judge to authorize magistrates to hear motions for emergency relief ex parte where, at the time relief is sought, “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 ex parte order entered by a magistrate under that subsection 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.

Once an order is entered it is distributed rather than merely filed. G.S. 50B-3(c) requires copies to be issued to the parties and to the law enforcement agency serving the area where the aggrieved party lives, and to any school named in the order. G.S. 50B-3(d) requires the sheriff of the county where the order is entered to provide for prompt entry of the order into the National Crime Information Center registry, which is how an officer anywhere in the country can confirm that an order exists.

Enforcement does not depend on going back to court first. G.S. 50B-4(c) provides that a valid protective order is enforced by North Carolina law enforcement without further order of the court, G.S. 50B-4(d) gives full faith and credit to qualifying orders from other states and from tribal courts, and G.S. 50B-4(g) provides that an appeal does not prevent enforcement while the appeal is pending.

What the firm does in domestic violence matters

DPS Law acts in both halves of these cases. On the civil side that means preparing and presenting a Chapter 50B complaint for an aggrieved party, and appearing at the return hearing for a defendant who has been served with an ex parte order and has one opportunity to answer it on the record. On the criminal side it means defending the underlying charges — assault, assault on a female, communicating threats, harassing telephone calls, stalking, domestic criminal trespass — and charges brought under G.S. 50B-4.1 for violating an order.

Because the two proceedings interact, they are handled together. What is said at a 50B hearing, whether firearms are surrendered under G.S. 50B-3.1, whether a consent order is entered under G.S. 50B-3(b1), and what conditions of pretrial release are set under G.S. 15A-534.1 all bear on each other. A final DVPO is a final judgment of the district court in a civil action and is appealable to the Court of Appeals under G.S. 7A-27(b)(2), but the appeal does not undo what the order has already required.

Common questions

Does a domestic violence charge in North Carolina get dropped if the alleged victim asks?

No. In North Carolina the criminal charge belongs to the State, not to the complaining witness. Under G.S. 15A-931 the decision to dismiss the charge voluntarily rests with the prosecutor, who may do so by oral dismissal in open court or by written dismissal filed with the clerk; the court can also dismiss for legal insufficiency, but the complaining witness has no power of dismissal at all. In Mecklenburg County the District Attorney’s office weighs the alleged victim’s position alongside the other evidence, but a request to drop the case does not end it, and the defendant remains under any conditions of release the court has imposed.

Can there be a 50B protective order without any criminal charge?

Yes. A Chapter 50B order is a civil remedy and does not depend on a charge, an arrest or a conviction. G.S. 50B-2(a) allows any person residing in North Carolina to file a civil action seeking relief, and G.S. 50B-3(a) directs the court to grant an order if it finds that an act of domestic violence as defined in G.S. 50B-1(a) has occurred. The civil standard is a preponderance of the evidence, which is lower than the criminal standard.

What is the difference between a Chapter 50B order and a Chapter 50C order in North Carolina?

The difference is the relationship between the parties. Chapter 50B applies only where the parties have or have had a “personal relationship” as defined in G.S. 50B-1(b) — spouses, former spouses, household members, parents and children, people with a child in common, and dating partners. Chapter 50C covers a victim of stalking or nonconsensual sexual conduct by a person “not involved in a personal relationship” with the victim, under G.S. 50C-1. The wrong chapter means the wrong court file.

Does a domestic violence protective order in North Carolina affect firearm rights?

It can, but not automatically. G.S. 50B-3(a)(11) allows the court to prohibit a party from purchasing a firearm for a time fixed in the order, and on an emergency or ex parte order G.S. 50B-3.1(a) directs the court to order surrender of firearms, ammunition and permits to the sheriff where it makes one of the findings that section lists. Where the court has so ordered, G.S. 14-269.8 makes possessing, purchasing or receiving a firearm a Class H felony for as long as that order or any successive protective order remains in effect, and failing to surrender is a Class H felony under G.S. 50B-3.1(j). An order in which the court made none of those findings and imposed no firearm term does not carry the G.S. 14-269.8 prohibition, so the order itself has to be read.

Questions people ask

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

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