What Legal Threshold Must Be Met for Domestic Violence?

Many times when a family member or close friend is involved in an act of physical violence, or one that is thought to possibly cause physical violence, Criminal and Civil charges will arise. An individual may press charges against another criminally; however, the District Attorney has the final say as to whether or not to prosecute that charge. On the other hand, a civilly instituted 50B Domestic Violence Protective Order, which is also known as a Restraining Order can be brought by an individual who will solely have the ultimate decision as to whether or not to follow through with seeking the order. The prevailing difference is when the District Attorney is involved, it is a Criminal Charge. When an individual is seeking a 50B Domestic Violence Protective Order-Restraining Order, it is a Civil action, just as if one party was suing another. Yet, in the event that a Civil Restraining Order is granted, and an individual violates that Restraining Order, the District Attorney will be involved, and they then have the ultimate say as to whether or not to prosecute Criminal charges.

Within the Judicial system, there are three thresholds that a Plaintiff must meet in order to successfully plead a case at bar: 1. Beyond a reasonable Doubt, 2. Clear and Convincing, and 3. Preponderance of evidence. If you are facing a criminal charge, the District Attorney will have to prove that you committed a Domestically Violent Crime beyond a reasonable doubt. If you are being civilly sued and the opposing party is seeking a 50B Protective Order, they must only prove their case by the Preponderance of Evidence. The major obstacles for an individual defending a 50B Domestic Violence Protective Order is the Plaintiff is only held to persuade the court by the lowest of the three thresholds. Therefore, if a Plaintiff can prove by 51% that a Defendant is likely to cause physical injury to the Plaintiff, the order will be granted.

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.

The statutory definition is the first threshold, before any standard of proof

In North Carolina the question is not only how convincingly something is proved but what has to be proved. G.S. 50B-1(a) defines domestic violence as the commission of one or more of three 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. The three 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 of continued harassment, as defined in G.S. 14-277.3A, that rises to such a level as to inflict substantial emotional distress; and committing an act defined in G.S. 14-27.21 through G.S. 14-27.33.

The statute closes with an exclusion that is easy to miss: the definition “does not include acts of self-defense”. Conduct that would otherwise satisfy the definition falls outside Chapter 50B where it was defensive, and that is a matter for evidence at the hearing rather than something the court is assumed to know.

The second and third limbs are narrower than they sound. Fear of imminent serious bodily injury is not the same as fear generally, and the harassment limb imports the definition in G.S. 14-277.3A — knowing conduct directed at a specific person “that torments, terrorizes, or terrifies that person and that serves no legitimate purpose” — and then requires that it rise to a level inflicting substantial emotional distress.

Without a personal relationship, Chapter 50B does not apply at all

In North Carolina the relationship between the parties is a jurisdictional threshold rather than a background fact. G.S. 50B-1(b) defines “personal relationship” by a closed list: 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, subject to the proviso in G.S. 50B-1(b)(3) 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, a dating relationship being one in which the parties are romantically involved over time and on a continuous basis.

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. The holding went to that category alone; the cohabitation category has not been the subject of a comparable decision, and it seldom needs to be, because persons who live together or have lived together will ordinarily also be current or former household members under G.S. 50B-1(b)(5), a category the statute does not limit by sex.

Where the parties fall outside the list, the case is not a weaker 50B case; it is not a 50B case. Chapter 50C is not a general substitute for it. A civil no-contact order under that chapter 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. A neighbor, a colleague or a relative outside the listed degrees who assaults or threatens someone satisfies neither definition, and the remedy in that situation is a criminal charge or an ordinary civil action rather than either statutory order.

Three different findings are made at three different stages

In North Carolina a single 50B case can involve three distinct thresholds, and confusing them is the most common source of misunderstanding about how these cases run. At the ex parte stage, G.S. 50B-2(c) allows 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”. That is a finding about danger, made on one side’s evidence.

At the return hearing the question changes. 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”. That is a finding that a past act occurred, proved by the greater weight of the evidence, and it is mandatory in its consequence: the word is “shall”, not “may”.

At renewal the standard changes again. G.S. 50B-3(b) allows renewal for good cause on a motion filed before the current order expires, and provides that the commission of an act as defined in G.S. 50B-1(a) after entry of the current order is not required. Ex parte custody carries its own separate finding, that the child is exposed to a substantial risk of physical or emotional injury or sexual abuse.

The criminal threshold is set element by element, not by a general standard

In North Carolina the criminal side requires the State to prove every element of the particular offense beyond a reasonable doubt, and those elements are frequently more demanding than the civil definition. G.S. 14-277.1 is the clearest example. Communicating threats requires that the defendant willfully threatened to injure the person or that person’s child, sibling, spouse or dependent, or to damage property; that the threat was communicated to the other person; that it was made “in a manner and under circumstances which would cause a reasonable person to believe that the threat is likely to be carried out”; and that “the person threatened believes that the threat will be carried out”.

Assault charges have their own structure. Simple assault under G.S. 14-33(a) is a Class 2 misdemeanor; assault on a female under G.S. 14-33(c)(2) requires that the defendant be “a male person at least 18 years of age” and is a Class A1 misdemeanor. Stalking under G.S. 14-277.3A(c) is more demanding than its summary suggests. The State must prove that the defendant wilfully harassed another person without legal purpose on more than one occasion, or wilfully engaged in a course of conduct directed at a specific person without legal purpose — a course of conduct being “two or more acts” — and, in addition, that the defendant knew or should have known that the harassment or the course of conduct would cause a reasonable person to fear for that person’s safety or the safety of an immediate family member or close personal associate, or to suffer substantial emotional distress by being placed in fear of death, bodily injury or continued harassment. It is that second element, and not the counting of acts, that does most of the work at trial.

The consequence is that the same incident can support a protective order and fail to support a conviction, or the reverse. The civil finding does not decide the criminal case, and an acquittal does not dissolve a protective order.

Who controls each case, and why that changes the outcome

In North Carolina control of the two proceedings sits in different hands, and this often matters more than the standard of proof. The 50B action belongs to the aggrieved party, who filed it and can dismiss it under G.S. 1A-1, Rule 41 or decline to appear at the return hearing, in which case the ex parte order is ordinarily dissolved.

The criminal case belongs to the State. G.S. 15A-931 provides that the prosecutor may dismiss charges by entering an oral dismissal in open court or by filing a written dismissal with the clerk. The complaining witness has no power of dismissal, and in Mecklenburg County the District Attorney’s office decides whether a domestic violence charge proceeds on the evidence available.

Findings on the civil side also have to be written down in a way findings on a plea do not. A contested protective order rests on findings of fact and conclusions of law, and the sufficiency of those findings is the usual ground on any appeal to the Court of Appeals under G.S. 7A-27(b)(2). G.S. 50B-3(b1) creates the one exception: a consent protective order may be entered “without findings of fact and conclusions of law if the parties agree in writing”.

Enforcement thresholds after the order is entered

In North Carolina the thresholds continue after an order is granted, in two further forms. A criminal charge under G.S. 50B-4.1(a) requires the State to prove beyond a reasonable doubt that the defendant knowingly violated a valid protective order, which imports both proof that the defendant knew of the order and proof of the act said to breach it.

A motion for contempt under G.S. 50B-4(a) is heard by the district court that entered the order and is governed by Chapter 5A. Civil contempt is directed at compelling compliance with an order that remains in force; criminal contempt punishes past conduct. Civil contempt does not displace a prosecution under G.S. 50B-4.1, but a finding of criminal contempt for violating an order that prohibited the same acts bars a later prosecution for that offense, so those two are in practice alternatives rather than cumulative remedies.

Enforcement itself requires no fresh threshold. G.S. 50B-4(c) provides that a valid protective order is enforced by North Carolina law enforcement without further order of the court, and G.S. 50B-4(g) provides that it is enforced during the pendency of an appeal.

Common questions

What standard of proof applies to a 50B protective order in North Carolina?

The civil standard, a preponderance of the evidence. G.S. 50B-3(a) directs the court to grant a protective order if it finds that an act of domestic violence has occurred, and that finding is made by the greater weight of the evidence rather than beyond a reasonable doubt. The ex parte stage applies a different test under G.S. 50B-2(c): whether it clearly appears from specific facts shown that there is a danger of acts of domestic violence.

Can a protective order be entered when the criminal charge is dismissed?

Yes. The two proceedings are separate and apply different thresholds. A criminal charge requires proof of every element beyond a reasonable doubt and is controlled by the prosecutor under G.S. 15A-931. A Chapter 50B order requires a finding by the greater weight of the evidence that an act of domestic violence as defined in G.S. 50B-1(a) occurred. An acquittal or dismissal does not dissolve an existing protective order.

Does fear alone satisfy the definition of domestic violence in North Carolina?

Not by itself. G.S. 50B-1(a) requires either an attempt to cause or the intentional causing of bodily injury, or placing the aggrieved party or a family or household member in fear of imminent serious bodily injury or of continued harassment as defined in G.S. 14-277.3A that rises to a level inflicting substantial emotional distress, or a sexual offense under G.S. 14-27.21 through G.S. 14-27.33. General apprehension does not meet the second limb.

What if the parties are not in a relationship covered by Chapter 50B?

Chapter 50B does not apply, and there is not always another order available. G.S. 50B-1(b) lists the relationships that qualify under Chapter 50B, including spouses and former spouses, household members, parents and children, parties with a child in common, and dating partners. A Chapter 50C civil no-contact order 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. Conduct answering neither definition supports neither order.

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