How Is a 50B Domestic Violence Protective Order Obtained?

The initiation of a Domestic Violence Protective Order usually arises when an individual makes an allegation to the court that they are in imminent fear of bodily injury from another or are continually being harassed. Upon the initial hearing before the court, the plaintiff pleads his case to a judge or even a magistrate. The initial hearing is held ex parte, where the Defendant is not even present. During this time, the judge or magistrate hears a one sided story and more often than less, grants that Protective Order. This Order is only in effect for 10 days.

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

Who may file, where the action is filed, and what it costs

In North Carolina a domestic violence protective order begins as a civil lawsuit. 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 of the General Statutes”, and gives the district court division of the General Court of Justice original jurisdiction over those actions. A person in Charlotte therefore files in Mecklenburg County District Court, either as a fresh 50B file or as a motion inside a divorce or custody case already pending.

The same subsection removes the usual financial barrier. No court costs or attorneys’ fees are assessed for the filing, issuance, registration or service of a protective order, a petition for one, or a witness subpoena, except as provided in G.S. 1A-1, Rule 11. The clerk does not require a filing fee and the sheriff does not charge for service.

The complaint has to plead two things, and the absence of either ends the case regardless of the facts. First, a personal relationship within one of the categories in G.S. 50B-1(b). Second, an act of domestic violence as defined in G.S. 50B-1(a). Where there is no personal relationship, a 50B order is unavailable whatever the conduct was. A civil no-contact order under Chapter 50C may be available instead, but only where the conduct amounts to stalking or nonconsensual sexual conduct, which is how G.S. 50C-1 defines “unlawful conduct”, and only where the other person is not involved in a personal relationship with the victim. The two chapters are not interchangeable, and between them they do not cover every dispute.

What the ex parte order actually requires the court to find

In North Carolina an ex parte order under Chapter 50B is not granted simply because an allegation has been made. G.S. 50B-2(c) permits the court to enter emergency relief before the defendant is heard 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”. The reference to specific facts matters: a bare recitation of the statutory language, without dates, conduct and detail, is a weaker application than it appears from the other side.

Ex parte custody carries a separate and higher requirement. The court may award temporary custody without notice only where it finds that the child is exposed to a substantial risk of physical or emotional injury or sexual abuse. That is a distinct finding, and it is not supplied by the finding that supports the no-contact provisions.

Firearms are dealt with at the same stage. Upon issuance of an emergency or ex parte order, G.S. 50B-3.1(a) provides that the court shall order the defendant to surrender 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 that section lists — use or threatened use of a deadly weapon, a pattern of prior conduct involving the use or threatened use of violence with a firearm, threats to seriously injure or kill the aggrieved party or a minor child, threats of suicide, or serious injuries inflicted on the aggrieved party or a minor child. Where the court makes none of those findings, the order carries no surrender obligation, and the firearm consequences that follow from G.S. 14-269.8 do not arise from the order by itself.

When a magistrate can issue the order instead of a judge

In North Carolina a magistrate can grant ex parte relief, but only within a narrow window. G.S. 50B-2(c1) allows the chief district court judge to authorize a magistrate or magistrates to hear motions for emergency relief ex parte. The magistrate must first determine that, 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 order entered by a magistrate under that subsection has a short life by design. It 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 Mecklenburg County this is the route by which orders are obtained overnight, at weekends and on holidays, and it is why a defendant may be served with an order signed by a magistrate and then face a further ex parte hearing before a judge almost immediately.

The order does nothing until the defendant is served

In North Carolina an ex parte protective order has no effect on a defendant who does not know it exists. Service is made under G.S. 1A-1, Rule 4, ordinarily by the sheriff of the county where the defendant is found, and at no cost to the plaintiff under G.S. 50B-2(a). The clerk sends the order to the sheriff together with the complaint, summons and notice of hearing.

Service also starts the clock on the return hearing and supplies the knowledge element of any later criminal charge. G.S. 50B-4.1(a) makes it an offense to “knowingly” violate a valid protective order, and the record of service is how the State proves that the defendant knew. A defendant who has been told about an order informally, but not served, is in a different position from one who has been served, and that difference is often decisive.

Once entered, the order is circulated rather than left in the file. G.S. 50B-3(c) requires copies to go to the parties, to the law enforcement agency serving the area where the aggrieved party lives, and to any school named in the order, and G.S. 50B-3(d) requires the sheriff of the county where the order was entered to provide for prompt entry into the National Crime Information Center registry.

The return hearing is the defendant’s first and main opportunity

In North Carolina the contested hearing is scheduled by statute rather than by convenience. G.S. 50B-2(c) provides that “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”. Where service is late, the hearing moves; where service is prompt, the ten-day figure governs.

At that hearing the plaintiff has to prove an act of domestic violence by the greater weight of the evidence. G.S. 50B-3(a) provides that “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”. The order that follows must rest on findings of fact and conclusions of law, and the sufficiency of those findings is the usual ground of any appeal.

The hearing can be continued. A continuance does not of itself dissolve the ex parte order, and the court will ordinarily extend it to the new hearing date so that the restrictions do not lapse in the interval; a defendant should check what the order and the continuance actually say rather than assuming either way. A defendant who treats the first setting as a formality often finds that the evidence was heard and the order entered in a single short hearing, with no further opportunity to put the account on the record.

Consent orders, withdrawal and dismissal

In North Carolina not every 50B case is decided after contested evidence. G.S. 50B-3(b1) allows a consent protective order to be entered “without findings of fact and conclusions of law if the parties agree in writing”. A consent order carries the same enforcement consequences as a contested one, including criminal liability under G.S. 50B-4.1 for a knowing violation and any firearm restrictions the order contains, so the agreement is not a lesser thing than a judgment.

The plaintiff also retains control of the civil action. Because it is a civil case, it can be voluntarily dismissed under G.S. 1A-1, Rule 41, and a plaintiff who does not appear at the return hearing will usually see the ex parte order dissolved and the file closed. That is different from the criminal side, where the prosecution belongs to the State and the complaining witness cannot withdraw it.

G.S. 50B-2(b) provides a further route where danger of serious and immediate injury is alleged. Where no ex parte order is entered, a hearing on that motion is 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, and the statute provides that no hearing is required if service of process is not completed on the other party.

Common questions

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

Related questions

• 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 Legal Threshold Must Be Met for Domestic Violence?