Co-Counsel Bulletins

DOMESTIC VIOLENCE

Back

Incidents of domestic violence are, unfortunately, occasional occurrences at military installations.  The state of North Carolina has enacted a specific statute to deal with problems of spouse abuse and family violence;  it is entitled "Domestic Violence" and is found at Chapter 50B of the General Statutes.

          The remedies set out in the statute are available upon proof that the defendant has committed bodily injury against a spouse or family member, attempted to do so, or threatened serious bodily injury.  The remedies are, to say the least, Draconian in nature, with the trial judge having the power to evict the accused from the residence, assess attorney's fees, grant restraining orders, allow temporary alimony and child support, grant temporary custody, or order the wrongdoer to provide the innocent party with suitable alternative lodging during the pendency of the case.

          Initiating an action for domestic violence is the province of a civilian attorney.  The attached manuscript presents an outline of domestic violence issues and statutory remedies in North Carolina.  Although written for private practitioners, this should provide helpful hints for the military attorney.

          Available at each county courthouse are forms for pro se applications by clients.  Legal assistance attorneys should be thoroughly familiar with how to help clients prepare these forms if they do not have the means to afford a private attorney.

APPENDIX

DOMESTIC VIOLENCE

PROBLEMS, PROTECTIONS AND PRACTICE TIPS

Mark E. Sullivan

LAW OFFICES OF MARK E. SULLIVAN, P.A.

Raleigh, North Carolina

I.          INTRODUCTION

          During the 1970's statewide and nationwide attention was focused on the problems of domestic violence and family abuse.  In 1979 North Carolina General Assembly enacted Chapter 50B, "Domestic Violence."  Although there remains little case law on domestic violence in North Carolina, the statute was amended in 1985, 1987 and 1989.

          This manuscript provides a practical analysis of the statute along with tips and techniques for the practitioner in dealing with the defense and prosecution of actions involving domestic violence.  For the purpose of this paper, it will be assumed that the victim is the wife and the abuser is the husband, although this is by no means the case in all instances of domestic violence.

II.               A PRACTICAL ANALYSIS OF CHAPTER 50B

          Chapter 50B of the North Carolina General Statutes is unique among the various state laws dealing with domestic issues and problems.  Chapter 50B is geared toward providing quick, effective relief to victims (usually spouses or children) who are caught in volatile and violent situations.  Unlike other statutes, a cause of action under Chapter 50B requires no six-month residency status.  Practically speaking there is no time for discovery, lengthy calendaring processes, or even the standard 30-day wait for a defendant's response to the complainant's initial pleading.  As a result the remedies provided can be swift and harsh for a defendant.

          Set forth below are some practical considerations for the practitioner in analyzing the statute, preparing the case for trial, and defending or prosecuting in court.  This manuscript is not intended to be a comprehensive treatise on the causes and impacts of domestic violence or the responses of other states to this problem.  Instead, it is intended as a practical everyday guide for North Carolina lawyers in handling these cases.

A.              Outline of Chapter 50B

1.              The Meaning of "Domestic Violence"

          The acts constituting domestic violence are set out in N.C.G.S. Chapter 50B-1.  In 1987 the General Assembly amended the definition of domestic violence to include minor children residing with or in the custody of an aggrieved spouse/party.  The General Assembly also extended to minor children the protections afforded by the same definition of "acts" of domestic violence as to an adult victim.   

          Such acts include attempting to cause bodily injury or intentionally causes bodily injury.  They also include placing the aggrieved party or minor child in fear of "imminent serious bodily injury" by threat of force.  Note that the latter involves "imminent serious bodily injury," as opposed to "bodily injury."  If there has been no attempt at or commission of bodily injury, the lawyer will need to prove the fear of imminent serious bodily injury by threat of force.

          Of particular interest regarding causes of action involving minors is N.C.G.S is 50B-1(b)(3), a new section effective October 1, 1988, that includes as acts of domestic violence against minors through Section 14-27.7.  These criminal offenses are first-degree rape, second-degree rape, first-degree sexual offense, second-degree sexual offense, attempts to commit same, and acts of vaginal intercourse or sexual acts where consent is no defense.  Thus the civil remedies provided in N.C.G.S. 50B-3 are also available to minor victims of these criminal acts.  However, the language of the statute suggests that in order for the minor to qualify, the party with whom the minor resides or who has custody of the minor must be an "aggrieved party" also.

          The status of the parties is also important in the initial analysis of the domestic violence.  The statute contemplates past or  present spouses being the parties to such an action.  In addition, the parties to the action may be "persons of the opposite sex who are living together or who have lived together as if married."  This broad definition allows divorced former spouses or unmarried cohabitant to file a domestic violence action.

2.  Institution of the Action

a.  Residence

          Under N.C.G.S. Section 50B-2, the proper person to bring an action concerning domestic violence is  "a party residing in this state."  The statute does not require that the party bringing the action be a citizen and resident of North Carolina.  Thus if the victim is a citizen of South Carolina but is currently living with her boyfriend temporarily in North Carolina, she would be a proper party.  On the other hand, if the victim is a citizen of North Carolina but is now residing temporarily with her husband at Ft. Jackson, South Carolina, where he is stationed it would not be appropriate to bring the action in North Carolina.  As a practical matter, both parties are citizens and residents of North Carolina in most cases.  There is no need to state in the complaint that either party is a citizen of North Carolina or has resided in North Carolina for any specific period of time.

b.  Allegations and Jurisdiction

          The case is instituted by "filing a civil action or filing a motion in any existing action filed under Chapter 50 of the General Statutes alleging acts of domestic violence," according to N.C.G.S. 50B-2(a).  As will be shown later in this manuscript, it is vitally important that the complaint or motion allege "good facts" with reasonable specificity to provide notice to the opposing party as well as to persuade the district court judge to grant the relief requested.  The District Court Division has original jurisdiction over domestic violence actions.

c.  Emergency Relief

          Prior to the 1987 amendments, N.C.G.S. 50B-2 made no distinction between ex parte orders and other emergency relief orders.  The new N.C.G.S. 50A-2(b), entitled "Emergency Relief," addresses specific procedures where emergency relief is required but no ex parte order is entered.  The requirement for such emergency relief is the aggrieved party's belief that "there is a danger of serious and immediate injury to himself or herself or a minor child."  The hearing on this emergency relief motion shall be held after five days' notice of the hearing to the other party or after five days from the service of process on the other party, whichever occurs first.

          This section further provides that no hearing shall be required if the service of process is not completed on the other party.  If such service is unobtainable, it appears that a court has the discretion to hold a hearing on an emergency relief motion in the other party's absence.  If the other party is noticed or served, the hearing is mandatory and the only issue is the five-day timing after service or notice.

          Note that N.C.G.S. 50B-2(b) states that a party may move for emergency relief.  This motion is not always necessary.  As a practical matter, most domestic violence actions are instituted with a complaint and a motion or prayer for emergency relief, but the statute contemplates institution of an action without any request for emergency relief.  In this case, the Rules of Civil Procedure provide the defendant with the usual time for answer and the case would be calendared for trial at the appropriate time.

d.  Ex-Parte Orders

          Lawyers who have practiced in this area of the law with any regularity know of judges, as well as attorneys, getting "burned" by over-zealous clients or opposing counsel who allege acts of domestic violence as a method of getting a spouse ejected from the marital residence or obtaining an advantage in a custody battle.  The facts alleged by such parties at the eleventh hour turn out to be exaggerated or downright false.  Such tactics gave rise to the new N.C.G.S. 50B-2(c), "Ex Parte Orders."

          Subsection (c) consists basically of three parts:  (1) a more explicit standard that empowers the court to "enter such order as it deems necessary to protect the aggrieved party or minor child";  (2) specific and narrow requirements that must be met before an ex parte order for temporary custody can be entered prior to service of process and notice;  and (3) requirements for a hearing following the issuance of the ex parte order.

          To empower the court to enter order for the ex parte party or minor , the previous requirement ("for good cause shown") has been narrowed and made more explicit.  The aggrieved party must make it appear clearly from specific facts shown that there is a danger of serious and immediate injury to herself or the minor child.

          In addition, an ex parte order for temporary custody of a minor prior to notice or service of process on the other party "shall not be entered unless the court finds that the child is exposed to a substantial risk of bodily injury or sexual abuse."  A reading of this section as a whole indicates that the attorney seeking an ex parte temporary custody order must show there is a "substantial risk of bodily injury or sexual abuse" to which the child is exposed and this must clearly appear from specific facts shown.  Unfortunately there are no cases which give an example of "specific facts shown."  There is, however, case law stating that bare allegations are not sufficient.  Danna v. Danna, 88 N.C. App. 682, 364 S.E.2d 696 (1988).

e.  Relief Available

          The court has substantial power under N.C.G.S. 50B-3(1) to grant protective orders, approve consent orders, and end acts of domestic violence.  Whether by way of ex parte order, order upon motion and hearing, or final order, the court may:

(1)     direct a party to refrain from such acts;

(2)     grant to a spouse possession of the residence or household of the parties and exclude the other spouse from same;

(3)     require a party to provide suitable alternate housing to a spouse and his or her children;

(4)     award temporary custody of minor children and establish temporary visitation rights;

(5)     order the eviction of a party from the residence or household and grant assistance to the victim in returning to it;

(6)     order either party to make payments for the support of a minor child as required by law;

(7)     order either party to make payments for the support of a spouse as required by law;

(8)     provide for possession of personal property of the parties;

(9)     order a party to refrain from harassing or interfering with the other; and

(10)  award costs and attorney's fees to either party.

          This is not an exclusive list of remedies since N.C.G.S. 50B-3(a) allows the court to grant "any protective order...to bring about a cessation of acts of domestic violence."  In addition, N.C.G.S. 50B-7 states that the remedies provided by Chapter 50B are not exclusive but are in addition to those provided in Chapter 50 and elsewhere in North Carolina General Statutes.  If counsel requests relief from the court which is not continued in the expansive listing above, the lawyer and client should be creative and explicit in the remedy requested, tailoring the request to persuade the judge that the relief granted will bring about "a cessation of acts of domestic violence" between the parties.

          An important time limitation is continued in N.C.G.S. 50B-3(b).  This section states that "protective orders entered or consent orders approved pursuant to this Chapter shall be for fixed period of time not to exceed one year."  The fixed period of time, whether one year or less, should be stated on the face of the order.  Unlike cases in which an order continues in effect until modified by the court upon a showing of changed circumstances or modified by the court upon a showing of changed circumstances or other requisite proof, the domestic violence protective order will expire at the end of the fixed period of time and this period of time may be no longer than one year from entry of the order.  Further considerations regarding this important problem appear in the section of this text dealing with the drafting of complaints, motions and orders.

          Another important limitation concerns jurisdiction over child custody.  In Danna v. Danna, supra, the Court of Appeals held that the North Carolina Domestic Violence Act"... is not designed to establish alternative grounds for jurisdiction over custody disputes apart from those set forth in Chapter 50A."  Id., 364 S.E.2d at 697.  Child custody jurisdiction is not conferred by Chapter 50B;  if must be found, if it exists at all, in Chapter 50A.

          N.C.G.S. 50B-3(c) also specifies the parties and individuals who are to receive copies of the order.  The statute states that each party shall be issued a copy of any order entered and filed under Chapter 50B.  It also provides that the city police department where the victim resides (or the sheriff of the county in which the victim resides) shall be issued a copy of each order filed under N.C.G.S. Chapter 50B and said order shall be retained by that law enforcement agency.  It is the attorney's responsibility to see that the appropriate law enforcement officers receive copies of these orders for their files.

f.  Enforcement

          As with most domestic orders, an action will lie for contempt of court for the violation of any order pursuant to N.C.G.S. Chapter 50B.  Such a motion and order for show cause would be brought under N.C.G.S. 50B-4(a), which provides specifically for the remedy of contempt.

          In addition , further remedies are available to victims when there has not yet been a hearing on enforcement of duly issued orders.  N.C.G.S. 50B-4(b) allows a law enforcement officer to arrest and confine a person if the office has probable cause to believe "that the person has violated a court order excluding the person from the residence or household occupied by a victim of domestic violence."  The same powers are granted when he has probable cause to believe that the person has violated an order "directing the person to refrain from harassing or interfering with the victim."

          Upon either of these provisions, the victim should present a copy of the order to the law enforcement officer.  Alternatively, the officer may determine that "such order exists through phone, radio, or other communication with the appropriate authorities."  This latter situation should not occur, however, if the client is given a copy of the order and further copies are provided to the sheriff or police in the city or county where the victim resides.

          N.C.G.S. 50B-4(b) further specifies that the individual who has been arrested and taken into custody shall be brought before the appropriate district court judge "at the earliest time possible to show cause why he or she should not be held in civil contempt for violation of the order."  Further provisions made in this section of the statute for release of the individual arrested under the provisions of N.C.G.S. Chapter 15A, Article 26, "Bail."

g.  Emergency Assistance for the Victim

          The victim of domestic violence may ask for assistance from the local law enforcement agency.  However, the following conditions are placed on this provision:

ˇ              the law enforcement agency is required to respond to the request for assistance "as soon as practicable."

ˇ              the agency is not required to respond to cases of multiple complaints from the same complainant made within a 48-hour period if the agency has "reasonable cause to believe that immediate assistance is not needed."

          The responding officer is authorized to "take whatever steps are reasonably necessary to protect the complainant from harm."  The officer is also authorized:

ˇ              to advise the complainant regarding sources of shelter, medical care, counseling and other services;

ˇ              upon request by the complainant (and where feasible) to transport her to appropriate facilities (i.e., hospitals, magistrates, offices, or public or private facilities for shelter);

ˇ              upon request by the complainant (and where feasible) to accompany her within that jurisdiction in which the request for assistance was made to allow her to remove such items as food, clothing, medication and such other personal property as are reasonably necessary to enable her and any minor children who are presently in her care to remain elsewhere pending the proceedings.

          These provision provide direct out-of-court access for the victim of domestic violence to law enforcement agencies.  When an agency provides assistance pursuant to the above, no officer may be held criminally or civilly liable for reasonable measures taken under the authority of N.C.G.S. 50B-5(a).  This criminal and civil immunization is set forth at N.C.G.S. 50B-5(b).  This section has been held, however, not to impose on law enforcement agents any affirmative duty to help people threatened with domestic violence so as to create liability.  Braswell v. Braswell, 98 N.C. App. 231, 390 S.E.2d 752 (1990).

h.  Construction of Chapter 50B and Other Remedies

          N.C.G.S. 50B-7 provides that the remedies under Chapter 50B are in addition to other remedies provided under Chapter 50 and elsewhere in the General Statutes and are not exclusive in nature.  N.C.G.S. Chapter 50B-5 states that this Chapter shall not be interpreted as "granting a status to any person for any purpose other than those expressly stated herein."  In Benfield v. Pilot Life Insurance, 82 N.C App. 295, 346 S.E.2d 285 (1986) it was held that, for the purpose of paying life insurance proceeds, an action under N.C.G.S. Chapter 50B does not make parties "legally separated."  Thus a Chapter 50B order separating the parties or granting exclusive possession shall not be construed as a "separation"  for the purposes of absolute divorce nor does such an order mean the parties are legally separated for other purposes.

I. Pro Se Court Forms

          In 1989 the Act was amended to require that pro se forms be made available for victims so that they would not have to hire a lawyer to bring domestic violence cases to court.  These are available through the Clerk of Superior Court.  N.C.G.S. 50B-2(d).

B.   Office Procedures in Domestic Violence Cases

1.  Response Time is Essential

          Occasionally a client will call the attorney during the night or the first thing in the morning after the incident of domestic violence.  Unless the attorney responds quickly or refers the client to another attorney, the pattern of violence may continue.  If the attorney cannot find sufficient time to handle the case, an immediate referral should be made to another attorney and to any local resources, such as shelters and spousal abuse projects.  Domestic violence clients often need immediate help and counseling.  The attorney who wishes to provide counsel and assistance in such a case must be able to react immediately or to make the appropriate referrals.  Sometimes, the aggrieved party will come to the attorney from the Volunteer  Lawyer Program.  At other times, it will be unofficially apparent to the attorney that the client has little money (pro bono) or else she would have fled the situation long ago.

2.  Good Forms

          The only way that an attorney can react promptly and effectively in a domestic violence case is to have an excellent set of domestic violence forms which can be tailored with a minimum effort to meet most of the cases seen in the office.  The most common allegations should be on computer software so that a minor amount of adjustment will suffice before the final printing and signing of the documents.  All of the statutory allegations should be set out in the standard  complaint, motion and ex parte order on the attorney's word processor, followed by a description of the facts of the particular case.  The only items that will require drafting are the descriptive paragraphs as to  the particular facts of the individual case, the particular relief requested, and the particular relief granted in the ex parte order, should one become necessary.  Examples of such forms are set forth at the end of the manuscript.

3.  Facts at the Initial Interview

          The attorney may find it necessary to have the client write out a summary of the facts.  This should be done in advance of the appointment if time allows.  If this is not the case, the attorney should devote his or her attention toward getting an accurate description of the incidents of domestic violence without "shading" or exaggeration.  Any "stretching" of the truth will ultimately come back to haunt the victim and her attorney.  while it is necessary to be graphic in the setting out of facts, no attempt should be made to color or expand the facts beyond what the client knows or relates.

4.  Calendar Coordination

          It is imperative that the attorney engaged in a domestic violence case, at least in situations where an ex parte order is necessary, have a fairly flexible schedule for the entire day on which the initial interview takes place.  Whether the attorney is in solo practice or in a small or large law firm, there are many other demands on the attorney and the secretaries or legal assistants.  These demands must be kept to a minimum and the secretary must be able to engage in the preparation and proofreading of the necessary documents without interruption.  Furthermore, it is not uncommon for the attorney involved in a case such as this to "block out" the entire day on the calendar and devote his or her energy entirely to the domestic violence case itself and the preparation of an adequate complaint, motion and, if necessary,, ex parte order.

5.            Counseling Techniques

          Some law schools do not teach courses in "counseling techniques" for the law office.  Nevertheless it is difficult to conceive of any one area where the attorney is more actively involved in counseling than in a domestic case.  Especially in domestic violence cases, the attorney needs to take control of the counseling and interview at the earliest possible stage.  The facts must be narrowed and details gathered on the incidents of domestic violence.  Many other thoughts will cross the mind of the client, but these cannot be allowed to interfere with the actual fact-gathering process concerning that court documents necessary in initiating a domestic violence case.  Although a certain amount of "hand-holding" is necessary in domestic violence cases, it is important to direct the interview at the earliest stage toward a narration  of exactly what happened so that the actual drafting of paragraphs and clauses for the complaint can be expedited.

6.  Is It a True Problem?

          Occasionally a client will appear for an interview on domestic violence and begin to recite incidents which seem to be trivial in nature or appear to be "stale."  The attorney must use a refined sense of judgment to decide whether he or she will take on such a case when, from all appearances, it appears unlikely that the complainant will prevail at any hearing  of the case.  Clients need to be informed at an early stage that not all wrongs have a remedy, especially ones that are stale or trivial in nature.  Fast action on incidents of domestic violence is essential.  The longer the period of time between the incident and the reporting of the incident to an attorney, the less likely that the court will be responsive to the request of the client for assistance.  Occasionally the client, in reporting allegations of domestic violence to the attorney, will be venting her frustration and anger over the course of the marriage or cohabitation, of reporting actual and serious incidents of domestic violence.

7.  Gathering the Facts

          One should tell the client to prepare a diary or summary of the facts if time is available and the client can do so without harassment or interference.  If there are medical or hospital records, these should be brought to the initial interview, along with any photos that might have been taken of bruises or injuries.  Any witnesses who can accompany the client will be helpful to the attorney, especially because he or she can attach affidavits of such witnesses to the complaint or motion for ex parte order.

8.  More on Counseling Techniques

          Beware of clients who are "repeaters" or ones who say they wish to "drop the charges" after the initial action has been filed.   It is important to inquire into what the client has done in the past when there has been domestic violence.  She may have been sufficiently frightened or threatened that she has not taken any action whatsoever concerning prior instances of family violence.  On the other hand, if there is a pattern of "filing and dropping charges," the attorney should be wary about taking the case.

9.  The Retainer

          Much has been written elsewhere about setting and collecting fees.  Most of this advice applies also in cases of domestic violence.  The important difference is that the attorney should decide at a very early stage how to set and collect the retainer.  Ordinarily the attorney should not engage in domestic violence work, other than on a pro bono basis, without the payment of the full initial retainer decided upon by the attorney and client.  A retainer contract is essential, and it is important that the fee is set high enough to take into account the usual presumption in domestic violence cases, that is, that the case will be a continuing and "increasing" case, not one which gradually "dies down" or is resolved by mutual agreement.  Due to the possibility that the victim may quickly change her mind, however, it would be prudent to deposit the entire fee into the trust account so as to have part of it available if a refund is necessary.

          In discussing a retainer with the client, the attorney should also advise the client about alternative remedies.  She will not need an attorney to prosecute the defendant for such criminal offenses as assault on a female (N.C.G.S, 14-33(b)(2)), domestic trespass (N.C.G.S. 14-134.3), communicating a threat (NCGS 14-277.1) or harassing telephone calls (N.C.G.S. 14-196).  Proper advice should be given as to how to undertake these courses of action by swearing out a warrant at the magistrate's office.  In addition, the client also ought to be advised about "self-help remedies," such as changing the locks, calling the sheriff or police, and, if necessary, leaving the premises to bring about a cessation to domestic violence.

10.  "Facts" vs. "Results"

          The attorney should counsel the client about the odds of prevailing at the time of offering the ex parte order to the judge, as well as at later hearings.  Clearly a husband who has viciously attacked his wife is more likely to be evicted from the household than one who has merely threatened bodily violence against her.  In the latter case it is likely that the district court judge would be agreeable to the entry of a restraining order against the husband but not an order removing the husband from the premises, unless additional facts were adduced and set forth in the complaint and motion for emergency relief.  Current facts, not stale ones, are imperative.  A well-drafted complaint, laying out specific factual allegations that can easily be verified, is the key to obtaining success and relief at the earliest possible stage.

11.  Drafting the Complaint

          The attorney must pay particular attention to the drafting of the causes of action set out in the domestic violence complaint because of the "one-year problem" described earlier.  The victim will not want an order granting her temporary custody, only to find that the order for custody expired one year after it was entered since it was granted under NCGS 50B.  It is a better practice to draft the complaint by utilizing separate claims for relief when matters other than domestic violence will also be involved.  Such additional claims might include alimony, child support, custody and divorce from bed and board.

          If there is insufficient time to draft the additional claims as well as to attach some of the necessary supporting documents (including financial affidavits or child custody jurisdiction affidavits), then the attorney should proceed with the initial domestic violence complaint and immediately thereafter amend the complaint under Rule 15 of the North Carolina Rules of Civil Procedure after he or she has had an opportunity to discuss the additional causes of action with the client.  Such an amendment must be executed and filed no later than thirty days after service of the initial complaint so long as the opposing party has not yet filed a responsive pleading to the complaint.

12.  Motion for Emergency Relief

          According to the statute, a motion for emergency relief may be filed by the victim if she believes there is a danger of serious and immediate injury to herself.  N.C.G.S. 50B-2(b).  This motion may be set out in a separate verified motion by the client.  On the other hand, it may be more expeditious to include in the prayer for relief of the verified complaint a statement asking that the verified complaint be received as a motion and affidavit in support of emergency relief and all further order of the court.  In addition, consideration also ought to be given to bringing the motion and complaint under Rule 65 of the Rules of Civil Procedure, "Injunctions."

13.  Drafting the Ex Parte Order

          Judges and law enforcement agencies are uniformly concerned about the "tight drafting" of court orders.  The judge will want to sign an order which provides specifically for only those limited forms of ex parte relief that must be ordered to bring about a cessation of domestic violence.  Law enforcement agencies require that orders tell them exactly what to do so that they will know the limits of their authority.  A good emergency order, for example, should provide specifically that the sheriff shall enter the premises at a certain address, take custody of the named minor child, and turn the child over to the plaintiff immediately.  Such an order should not provide simply that "the sheriff shall provide all reasonable and necessary assistance" to the plaintiff to accomplish the terms of the order, although this language might be added as a later "catch-all" phrase in the order.  The order should further provide for the delivery of copies of the order to the parties and the appropriate law enforcement agencies, as well as to day-care centers, schools, and other appropriate institutions.

14.  Verification

          It is essential that the complaint and, if one is necessary, the motion for emergency relief be verified by the client.  Although the statute does not indicate the need for such verification, this practice is one protection that the client may need in order to persuade the judge of the truth of the allegations.  When such verification is made, it is also essential that the client swear or affirm, prior to his signature, as to the truth of the matters asserted in the court document.  The author is aware of at least one case in which, when the wife admitted that she had not sworn on a Bible to the accuracy of the allegations, the domestic violence case was dismissed.

15.  The Race to the Courthouse

          It is advisable to take the client along to the court so that any questions by the judge may be answered by her in order to persuade the judge that the relief requested is appropriate if there is an ex parte order involved.  In addition, an interview with the victim may be utilized to show the judge photos of bruises or injuries of the alleged victim.  An early phone call to the judge's chambers may help to ensure that the judge will remain at the courthouse until the attorney appears for the signature on the ex parte order.  After the signing of the ex parte order, as stated above, appropriate copies will need to be issued to the sheriff for service on the defendant, as well as to the proper law enforcement agencies and those facilities or activities which might have need for a copy of the order.  If there is an ex parte order which is signed by the judge, further close coordination with the clerk will be essential in setting the case for the hearing on a priority basis or as a peremptory setting to stay within the time limit.

C.  Courtroom Procedure

1.  The Five or Ten-Day Hearing

          a.  Preparation for the Hearing

          Immediately before the hearing, it is advisable to review the pleadings to refresh the memory of the victim, witnesses and attorney as to the facts of the case.  At this point, in addition, the victim may recall other facts which should be adduced for oral testimony or may wish to change certain details of the allegations to conform to her present recollection.  The victim and witnesses should be thoroughly prepared in advance of the hearing.  The attorney must explain to them the process of direct and cross-examination, the need to answer only those questions which are asked, and the need for a truthful presentation without exaggeration or understatement.

          b.  Conduct of the Hearing

          Particular attention needs to be paid to the manner of questioning the victim.  The victim will often be nervous and uncertain as to her role in court and the nature of the questions to be asked of her, even upon direct examination.  Even if the victim is thoroughly prepared before the hearing, it may be difficult to obtain straightforward answers from her in direct examination if the attorney uses open-ended questions.  A more satisfactory way of approaching this problem is to elicit specific identifying information at the outset from the plaintiff by way of leading questions.  This information includes such matters as names of parties, marital status (if any) and county where the plaintiff is residing.  After that, it is appropriate to ask the plaintiff two or three questions as to the complaint, and then conclude the direct examination.  These questions might be as follows:

          --Did you read the verified complaint that we prepared before you signed it?"

          --Is this your signature on the verified complaint, and did you swear to the truth of these statements?"

          --Are the statements made in this verified complaint true?"

When this approach is used, there is no need to introduce the verified complaint into evidence.  Craven v. Craven, 42 N.C. App. 243, 256 S.E.2d 286 (1979).

          Sometimes the attorney will choose not to use this method of introducing evidence on direct examination.  Such would be the case if the attorney wanted testimony by a client concerning specific allegations and wished to obtain a more persuasive presentation by the client than would be the case in the reading of a "dry complaint."  This stage of the hearing is also the time to consider presenting medical reports, photographs, or the testimony of other witnesses for the victim.  In addition, it may be necessary, in the appropriate case, to show the injuries of the victim directly to the court while she is on the witness stand.

          It is equally important to prepare the client for cross-examination.  In many cases of domestic violence, if the matter is not resolved by a consent order after negotiations, the defense attorney will choose not to present evidence and rest his or her case on the basis of good cross-examination.  The client should be advised as to the possible tactics to be used in cross-examination and should be thoroughly prepared to answer directly and forthrightly any questions by opposing counsel.  She should further be warned to answer only those questions which are asked and not to stray from the subject matter of the question.  She should also be advised concerning the necessity of reiterating and describing the fear in which she was probably placed at the time of the commission of the acts or attempts regarding domestic violence. 

2.  Full Hearing of the Case

          A full hearing would occur after the initial hearing if the answer of the defendant set up such matters that needed to be resolved with additional testimony in the case.  This might happen when a counterclaim of the defendant asserts affirmative matters such as a claim for custody or for divorce from bed and board.

          These hearings would be handled in the same manner as an ordinary civil case involving these issues would be tried, except that the plaintiff's attorney should attempt by any means possible to intertwine the additional claims to the victim's claim concerning domestic violence.  Especially in cases where a different district court judge will be hearing the further matters set out in the "full hearing," it is essential to draw the attention of the court to any and all previous orders and the findings of fact therein concerning domestic violence.

3.  Defending the Case at Trial

          Representing a defendant in a domestic violence case is a tough, unenviable task.  Because of the nature of an action brought under N.C.G.S. 50B, it may seem that the odds are stacked against the defendant from the outset.

          The first step in defending is to review a copy of the complaint and any motions for emergency relief with the defendant.  The defendant will need to assist in the preparation and defense of the case by going over line-by-line and sentence-by-sentence the allegations of violence set out in the motions and pleadings.  Particular attention should be paid to any attempts at exaggerating or "shading" the facts as they are known to the defendant.  If, for example, there has been a history of arguments and "spats" between the parties, sometimes leading to physical confrontations, it may be appropriate for the defendant to explain the "rocky road" of the marriage and try to indicate to the court that this is not an incident of such importance as to require the court to take the drastic steps involved in issuing order under N.C.G.S. 50B.

          If, on the other hand, the defendant (readily or reluctantly) admits some of the acts of domestic violence, it is usually the wisest course to immediately contact opposing counsel and suggest methods of "no-fault" settlement, including possession of the residence, division of items of personal property and, if necessary, some measures of interim support for the wife or children during the pendency of the litigation.  An appropriate consent order following these negotiations might, for example, bar each of the parties from harassing, molesting or interfering with each other and might enjoin both parties from any and all acts of domestic violence against the other party, regardless of who had been at fault in the earlier incidents.  Careful attention should be given to any facts amounting to provocation or "fighting words."

          The defendant should be closely questioned as to any potential witnesses concerning the alleged acts of domestic violence or any possible character witnesses.  He should also be advised as to the possibility of his being excluded from the residence of the parties.  Information should be gathered as to whether the defendant has any other place to live should he be removed permanently from the premises.  These facts would be important in persuading the court to deny the plaintiff exclusive possession of the residence but to enter or continue a restraining order between the parties.

4.  Problems Frequently Encountered

          a.  Service on Defendant

          In many domestic violence cases, it is difficult to obtain immediate service of the complaint and attachments (i.e., motion for emergency relief and order for same) on the defendant.  Particular attention should be paid to obtaining accurate information as to the work address and telephone number of defendant, as well as any other information on alternative places where the defendant may be served.  Coordinate service directly with the deputy sheriff who will be serving the civil papers, so that the attorney and/or the client can monitor service in advance of the initial hearing.  Give the client the name and the telephone number of the deputy sheriff so that she can assist in the serving of the defendant, thus reducing the time and fees involved from the lawyer's standpoint.  If the client believes that the defendant will try to evade service of process, this should also be brought to the attention of the serving deputy.  The client can assist the deputy by providing information to the sheriff's office as to the usual places where the defendant can be found.  She may also wish to provide a recent photograph of the defendant to the deputy who will be serving the civil process.

          b.  Research in the Domestic Violence Case

          Little is mentioned in this manuscript concerning research and case citations for the simple reason that there are very few appellate decisions in the area of domestic violence.  The first reported case was Story v. Story, 57 N.C. App. 509, 291 S.E.2d 923  (1982), in which the Court of Appeals held that an award of custody of a minor child to the wife could not be based on N.C.G.S. Chapter 50B since the incidents of violence occurred prior to the enactment of the statute.  The Court of Appeals went on to state that the award of temporary custody was justified under other statutory provisions (i.e., N.C.G.S. Chapter 50-13.5(c)(2) and (d)(2)) which give the district court jurisdiction to enter such orders as are necessary for temporary custody and support of minor children.

          In another case, Smart v. Smart, 59 N.C. App. 533, 197 S.E.2d 135 (1982), the Court of Appeals held that no appeal of right would lie from an interlocutory order such as an emergency order concerning domestic violence.  The Court of Appeals stated that the initial ex parte order in this case was an interlocutory order, in view of the fact that the relief granted did not affect a substantial right which would not be protected by timely appeal from the ultimate disposition or final decree in the controversy.  The defendant in the Smart case had appealed from the initial ex parte order.

          c.  Related Statutory Remedies

          Clients should also be advised of other remedies for domestic violence.  These include:

          --The criminal law remedy of assault under N.C.G.S. 14-33;

          --Warrantless arrest for certain assaults or domestic trespass under N.C.G.S. 15A-401(b)(2)(c)(d) [amended as of May 29, 1991];

          --Domestic criminal trespass under N.C.G.S. 14-134.3; and

          --Communicating a threat, pursuant to N.C.G.S. 14-277.1.

III.  CONCLUSION

          The domestic violence case brought under N.C.G.S. Chapter 50B is, in the final analysis, one that is prosecuted or defended by obtaining and using "good facts" and persuasion, rather than by extensive research and critical statutory analysis, since there is so little in the way of appellate cases concerning the statute.  Thorough client preparation is essential.  Tight drafting of pleadings and motions is just as important as solid preparation of witnesses for the hearing.  From the standpoint of either the plaintiff or defendant, a settlement by consent order may be preferable to extensive litigation of the case, especially when the plaintiff's case is fairly strong.  And an adequate set of forms for pleadings and orders will enable the plaintiff's lawyer to take the fast, first step in stopping and resolving incidents of family abuse and domestic violence.

[rev. 6/28/99]

* * *

THE NORTH CAROLINA STATE BAR
217 E. Edenton Street • PO Box 25908 • Raleigh, NC 27611-5908 • 919.828.4620
CopyrightŠ North Carolina State Bar. All rights reserved. • Website design provided by Sageisland.com