Season 1 Episode 16: Domestic Violence

Note: Our Podcast, “A Year and a Day: Divorce Without Destruction”, was created to be heard, but we provide text transcripts to make this information accessible to everyone. All transcripts on our website are created using a combination of speech recognition software and human transcribers and could contain errors.

Jaime Davis: Welcome to Episode 16 of ‘A Year and a Day’. I’m your host, Jaime Davis. In Episode 15, my colleague, Melissa Essick and I discuss tips for handling the first holiday season following a separation. In this episode I will be discussing the issue of domestic violence and what is required to obtain a domestic violence protective order in North Carolina with my colleague, Jonathan Melton. Jonathan is a board-certified family law specialist and joined Gailor Hunt in 2013. Jonathan has practiced almost exclusively in the area of family law since that time. Jonathan has extensive experience representing clients where domestic violence is an issue. You may also recall that Jonathan joined us on Episode 9 of the podcast to discuss the appellate process in family law cases.

Jaime Davis: Welcome, Jonathan.

Jonathan Melton: Thank you.

Jaime Davis: We have a lot of important information to cover today, so I’m going to get right to it. Domestic violence is a problem that does not discriminate. Anyone can be a victim or a perpetrator of domestic violence. It transcends all socio-economic boundaries and education levels, and can affect people of any race, age, sexual orientation, religion or gender. Domestic violence can happen to people who are married, who are living together or who are dating. So, Jonathan, in North Carolina if you are a victim of domestic violence, what remedies are available to you?

Jonathan Melton: Well, if you are a victim of domestic violence you can certainly seek a domestic violence order of protection. Um, those are often referred to as DVPOs or 50B orders because the law that protects the victims of domestic violence is in Chapter 50B of our general statutes.

Jaime Davis: What are the grounds for obtaining a domestic violence protective order?

Jonathan Melton: There are three grounds, sometimes four grounds, but it’s either if someone has attempted to cause you bodily injury or has caused you bodily injury, or if they’ve placed you or a member of your family in, uh, fear of serious bodily injury or in fear of continued harassment that rises to the level of substantial emotional distress. Those are the three standard ones. A fourth one would also be if someone committed a sex offense, so you’re looking at rape, sexual assault, those types of incidents which typically fall under bodily injury as well.

Jaime Davis: Sure. Can you give our listeners some examples of some types of behaviors that might enable them to seek a DVPO?

Jonathan Melton: Certainly, being hit or pushed, uh, choked, anything that causes bodily injury, um, you know, fear of imminent bodily injury. It’s a subjective fear. So, if someone threatens you and you believe that you are actually going to be hurt. That could give rise to a domestic violence order of protection. Um, you know, and then the continued harassment to inflict substantial emotional distress. I think you’re looking at an aggregate of behaviors. Um, you know, text messages, stalking someone, following someone. All of that could give rise to it.

Jaime Davis: I think you made a really good point, that it’s the person’s subjective fear. The person who is being threatened, whether or not that person is fearful. It’s not, we’re not talking about some, you know, objective third person, whether they’re scared, but rather you, yourself. If you are scared, then you may be able to seek a DVPO.

Jonathan Melton: Right. So, when you’re in court seeking a domestic violence order of protection, often judges will look at a history or a pattern between the, the two individuals involved in the action. Because when you’re trying to find someone’s subjective fear, the history that they have with the person they believe is causing domestic violence may be important to understanding why that specific victim may be afraid in that specific circumstance.

Jaime Davis: So let’s talk about another word that you mentioned earlier. You said it needs to be imminent, the threat needs to be imminent. What does that mean practically speaking?

Jonathan Melton: Well, you have to be placed in fear of imminent, serious bodily injury. So, again, it’s a subjective fear. I think you’re looking at someone raising a hand, raising a fist. Maybe they didn’t actually strike you, but at that moment, you were in fear that at any moment you were going to be hit, you were going to be struck.

Jaime Davis: And so what if there are incidents of domestic violence that happens, let’s say, 2 years ago, but nothing recent. Do you think someone in that situation might be able to get a DVPO?

Jonathan Melton: I think it’s unlikely. Typically, you see the longer someone waits, the more stale the incident becomes. It’s more difficult to get the protective order. Um, so I think folks are encouraged if something does happen, to, to act right away. Certainly, as I spoke about earlier, the history between two individuals is relevant. So if you have a recent act, the judge will take into consideration evidence of old acts, or evidence of, uh, maybe a pattern or a history of abuse. But I don’t believe the judge can base the domestic violence order of protection on that old act, on the history of abuse. There has a to be a recent act that can sort of tie to the past acts.

Jaime Davis: So if something happened, let’s say, yesterday and the victim would like to get a DVPO today, they may be able to bring back up some incidents that did occur in their past, like 6 months ago or so, and that would be relevant to, like you said, the history between the parties. Is that right?

Jonathan Melton: Right. I think if they have a recent act that can be actionable, the judge will take into consideration evidence of past acts, or a history of abuse between the parties.

Jaime Davis: So, who can get a DVPO?

Jonathan Melton: So, you are eligible to file for a DVPO if you are current or former spouses with the person who you believe has caused domestic violence, if you are members of the, um, opposite sex who lived together, if you’re related, um, by parents and children, or grandparents and children, um, if you have a child in common with someone, you can get a domestic violence order of protection against them. If you are current or former household members, or if you’re an opposite sex dating relationship. And a dating relationship, they’re gonna look at whether you’re romantically involved in, on a continuous basis. And I do think there is a key distinction there that the statute only protects opposite sex dating relationships. So if you were in a same sex dating relationship, you’re not going to be able to get a domestic violence order of protection unless you can fall under one of the other prongs. So sometimes people who are in same sex dating relationships but who lived together, they could still get one because they can go under the prong of current or former household members. But if you were in a same sex relationship and you don’t live together, you’re not gonna be able to move under our Chapter 50B domestic violence order of protection.

Jaime Davis: And so, what would you do in that situation if you were in a same sex dating relationship but you did not live together? Would there be relief available?

Jonathan Melton: Well, certainly, potential criminal remedies. You could always call the police and, and, and maybe that person would get charged. There are other types of protective orders that may be available. One is called, uh, a no contact order, which is commonly called a 50C. But as far as a domestic violence order of protection under Chapter 50B, that would not be a remedy that’s available.

Jaime Davis: Okay. So, let’s say that you are one of these folks covered by a Chapter 50B and you were eligible to file for a 50B, what is the procedure for doing that?

Jonathan Melton: Well, in a general sense, you must reside in the State of North Carolina, and you file a civil action. Um, there, the statute says that the state’s gonna maintain forms. So, there’s no filing fee and typically your local, um, courthouse, domestic violence office, or if you don’t have a domestic violence office in your courthouse, the clerk’s office should have forms available for you. And, like I said, there’s no filing fee. And you just go downtown and, and you fill them out.

Jaime Davis: For folks in Wake County, is there any other specific help available to them to help with this process?

Jonathan Melton: Yes. In Wake County, we have some great agencies like Interact, uh, which assists victims of domestic violence. They’ll even assist you with, uh, your domestic violence paperwork. And in Wake County, we do have a domestic violence office that maintains all of the forms, um, it’s on the fifth floor of the Wake County Courthouse. And then the courtroom is 5A, adjacent to the office. So you’d fill out your paperwork there and you walk right across the hall to the court, to the courtroom.

Jaime Davis: And in Wake County, is there any special time that you should show up if you wanna file for a domestic violence protective order?

Jonathan Melton: Yes. So, in Wake County, they will handle, um, returning, uh, cases in the morning. So from 9 till 12 or 1, they will handle, uh, trials on temporary orders that have already been issued. So, if you’re seeking a new domestic violence order of protection on an emergency temporary basis, you should show up sometime after lunch and fill it out, and you’ll go before the judge around 2:00.

Jaime Davis: So, let’s talk about this for a second. The difference between what happens when you first file the paperwork and when you have to come back 10 days later. So, when you first file the paperwork, if the judge thinks that you are entitled to it, they grant you an ex parte –

Jonathan Melton: Right, emergency order.

Jaime Davis: – ****. And then what happens?

Jonathan Melton: So, if the judge, what will happen is when you go down there to file, you’re gonna fill out the form complaint and the judge will look at your form complaint and the allegations you put on there, and the judge may ask you some questions. And if the judge thinks that what you’ve alleged on its face, and based on some of the limited questions that he or she may ask you, if the judge believes that you have grounds for a domestic violence order of protection, that judge can issue an ex parte, which means without notice to the defendant, emergency temporary order. So you will have, when you leave the courthouse that day, an, an enforceable emergency order. And then the defendant gets served with your action and gets served with that emergency order, and then they are constitutionally entitled to have a hearing within 10 days. So once they’ve been served with the action and the order, they get to go to the courthouse and tell their side of the story, and you’ll be present as well. The person, the alleged victim will be present as well, the person with the emergency order. So you go down there, you fill out the paperwork, you can get an emergency order that’s good for at least 10 days, and then there’s a full hearing. So in Wake County, they do those hearings in the mornings, and in the afternoon is when they review the paperwork for new emergency orders. So if you’re getting a new order, you should go downtown sometime around lunch and go before the judge in the afternoon. Or if you’re going down on your full hearing for, uh, a 1-year order of protection, you do that in the morning.

Jaime Davis: What types of provisions are typically included in a DVPO?

Jonathan Melton: So the DVPO will have provisions that are specific to the alleged victim, where the, uh, person who committed domestic violence can and cannot go. Uh, for example, you can ask the judge to make it so they can’t go to your house, they can’t go to your place of work. Um, they can’t, you can ask for them not to be within 50, 100 yards of you. Certainly, no contact is allowed, so no telephone calls, no text messages. You can also ask for possession of a shared household. You can ask for possession of automobiles. You can ask for temporary custody of children. You can ask for possession of pets. You can ask for attorney’s fees. And you can ask for, uh, temporary support as well. Keeping in mind that all of those provisions will be tied up in your protective order. So if the protective order is not granted for a year, or when it when it expires, those provisions will expire. So you will then have to, in most cases, take further steps in regular family court to get more permanent relief. But, and our statutes say that for custody, whatever the judge does in the domestic violence courtroom will be superseded by any future regular custody order. But on that limited, temporary basis, you can ask for all of that relief.

Jaime Davis: And you mentioned that your DVPO was good for a year, is that right?

Jonathan Melton: Yes. They can enter the domestic violence order of protection after they have that full hearing where everybody comes down and says their side of the story. The judge can enter the order for 1 year.

Jaime Davis: Once that year is up, are you able to renew the DVPO?

Jonathan Melton: Yes. You can file a motion to renew and you must make that request before your domestic violence order of protection expires. But you can file to renew it. You can ask the judge to renew it for up to 2 years each time.

Jaime Davis: In your experience, how often are DVPOs actually renewed in practice?

Jonathan Melton: Not that often, which is not the, the answer that most, um, individuals who have domestic violence orders of protection want to, to hear. But you have to think of the fact that it does significantly restrict someone’s ability, movement and where they can go, and who they can contact. So you don’t have to, um, you don’t need new facts for a renewal, um, but it’s certainly helpful. So, if there’s a new incidence of domestic violence or any violation of the order, that will help your chances for renewal. But technically the judge can renew it based on the underlying facts from the initial order. And you can ask for a renewal even if you don’t live in North Carolina anymore.

Jaime Davis: So, you mentioned violating the order. A domestic violence protective order, just like any other court order, really is just a piece of paper. What is to keep the defendant from violating the order?

Jonathan Melton: Well, you’re correct in that it is a piece of paper. It’s an order like any other order, so certainly if there’s a violation, that person who violated it could be held in contempt. But what really gives the domestic violence order of protection some teeth is that, uh, violations are automatically charged criminally, as well. So if you violate, it’s a Class A1 misdemeanor. If you commit a violation while committing a felony at the same time, then you’re getting charged with a felony. If it’s a subsequent violation, it’s a felony. If you use a deadly weapon in the violation, it’s a felony. And that person will be arrested and, and charged immediately.

Jaime Davis: So there is real incentive to abide by these orders?

Jonathan Melton: Absolutely. Um, if you have a valid domestic violence order of protection and a violation occurs, you call the police and that, that person will be arrested and charged. Which gives it a lot more, uh, like I said, teeth than, than a regular court order.

Jaime Davis: If a person owns firearms and DVPO is entered against him or her, will it have any affect on his or her ability to maintain those firearms?

Jonathan Melton: Yes. You can ask the judge to take a person’s firearms. And the judge is gonna look at, um, whether in the alleged action if there was a threat to use a deadly weapon. I guess if a firearm was part of the threat that caused the domestic violence order of protection. Um, if there were serious injuries which caused the domestic violence order of protection. Or if that person who committed domestic violence has threatened suicide. Certainly, the judge can take the weapons.

Jaime Davis: And so if the weapons are taken, is there any way to get them back?

Jonathan Melton: Yes, so if the judge orders the weapons to be surrendered, they must be turned in immediately or within 24 hours. But then the person whose weapons are taken, after the domestic violence order of protection expires, if it’s not renewed after the 10-day initial order, if it’s not renewed after the 1-year order, then that person can file a motion for the return of his or her weapons. And they have to file that motion within 90 days, and then there’s a hearing. And the judge will consider whether the, there are any other domestic violence order of protections, how many times this order may have been renewed, does that person have any pending criminal charges, or is there some other reason why they are prohibited from possessing firearms. But absent finding one of those things, the person will get their guns back.

Jaime Davis: Is it possible for the person who sought out the DVPO, the victim, is it possible for them to give permission to the perpetrator to violate the DVPO once that DVPO is entered?

Jonathan Melton: No. In fact, even if they contact the person and say, hey, it’s fine if you come to my house, if that person who has the domestic violence order of protection against them goes to the victim’s house, they will get arrested if, eh, if, if it’s called in, if it’s, if it’s reported. The only thing that could happen is if the plaintiff or the victim, the person who got the domestic violence order of protection, if they don’t want it to have any effect anymore, they’ll need to file a motion to set it aside. And then they’ll, there, there will be a hearing. And I think judges take those very seriously, because they don’t want individuals who have obtained domestic violence orders of protection to be coerced into setting them aside. So they do have a hearing and they ask the victim why do you not want this to be in place anymore. But the victim, or the person with the protective order cannot give the defendant permission to violate.

Jaime Davis: And so, what if you are the perpetrator and you, for whatever reason, what to have contact with the victim, and you ask your friend or your family member to reach out to the victim on your behalf, can you do that?

Jonathan Melton: N, not if you don’t wanna get charged with a violation, because it will explicitly say, the domestic violence order of protection form, says that you cannot communicate through third parties. So you cannot contact a friend and say, hey, reach out to him or her and say this for me. That would be a violation. Obviously, a carve-out there is lawyers are allowed to do it. So if they are an individuals who have domestic violence orders of protection in place, but they’re also married or going through a divorce, or a custody proceeding, the lawyers can communicate about those provisions.

Jaime Davis: And I’ve also seen, and I’m sure you have, too, in your experience, that there will often be carve-outs for folks that have children together, um, very limited communications so that they can typically discuss logistics with respect to exchanging the children. And, and in my experience, I’ve seen that usually those communications are limited to writings such as email. Have you had that same experience?

Jonathan Melton: Yes. That, that can be put in the domestic violence order of protection and when you’re in family court on a custody case, our statutes are clear that they have to fashion a custodial schedule with due consideration to the domestic violence order of protection. So individuals who do have kids, it, it is a big consideration that needs to be given, do I need this protective order, um, do I legitimately have grounds for it. Because it will affect the custody case, as well. But in the domestic violence order of protection itself, the judge can put provisions in there that no contact except for and then list out, and usually it’s in writing only about the kids wellbeing or schedules.

Jaime Davis: So, we were just talking about the terms that a judge can include in the DVPO. Is it possible for the parties to ever fashion their own terms in these domestic violence protective orders?

Jonathan Melton: Yes. When you’re looking to negotiate the 1-year order of protection, the parties can agree to a consent order. So that will happen in two ways, usually. If someone gets an ex parte emergency order, and then everyone comes back for the return hearing, and then before the return hearing, everybody’s there, and they’re trying to settle it without having to go before the judge, they can agree to a consent order. Or, if you go down there and you’re trying to get an emergency order, and the judge doesn’t think you have grounds for an emergency order, they will just set a hearing on your complaint for a domestic violence order of protection. And then everybody goes down there and there’s a hearing about whether there should be a 1-year order. At either time before there’s a hearing on the 1-year order the parties can agree to a consent domestic violence order of protection. And they can, in doing that, decide what the terms are. And another thing they can do is they can agree to a domestic vi, violence order of protection with no findings of facts or conclusions of law. And what that means is, if you are the alleged abuser, if you consent to a domestic violence order of protection with no findings and no conclusions, that means the document itself won’t say what you did or did not do, and you’re not admitting any guilt.

Jaime Davis: I could see where that might be important for someone who has a job that may be affected by the entry of a DVPO. I mean, if you’re able to resolve the issue, the victim gets the relief that he or she is seeking, and yet you are also able to protect your employment by not admitting to anything, that seems to be a win-win for both parties.

Jonathan Melton: Definitely. And that sometimes is a key, uh, consideration. Individuals who are married, who have children and one of them is the, the spouse that provides that income to the household. Because you have to, obviously protect yourself, but you also need to think, okay, I need this domestic violence order of protection for my safety, but I need that person to remain employed, or employable so that my kids are taken care of, so that my needs are taken care of.

Jaime Davis: Practically speaking, if folks are living in the same household and one of the spouses is able to get the ex parte DVPO entered, how is the other person removed from the home?

Jonathan Melton: The sheriff’s department will show up and remove them. They’ll be allowed to gather their personal effects, which is usually their clothes and they call it tools of the trade so, you know, typically it’s the computer, or I guess if you are –

Jaime Davis: Right.

Jonathan Melton: – a handyman or something, you could grab your actual tools. But, you have a little bit of time to gather your belongings and then you’re, you’re removed from the home.

Jaime Davis: And at that point, you’re not allowed back in until one, the full hearing and the judge determines yes, there was domestic violence, in which case you will not be allowed back –

Jonathan Melton: Right.

Jaime Davis: – after that, um, or at least until the order expires. Or no, there was no domestic violence and then what? You’re just allowed to go back home? Is that how that works?

Jonathan Melton: It’s gonna depend, because once you’re out of the house, if the other side, the other person, gets the locks changed and claims that you’ve established a separate residence, it could be very difficult for you get back into the home. And I think that is why, one reason, why these actions are taken so seriously, certainly by judges downtown at the courthouse. Because for two individuals who may be, are married, living together, have children, you can get a big leg up on your domestic family court action by getting someone removed from the house this way. So they need, judges need to, are mindful and try to make sure that someone’s not filing a domestic violence order of protection for an improper purpose.

Jaime Davis: So let’s talk about that for a moment. What if you believe that you didn’t do anything wrong and that your spouse is filing this against you just to get some sort of advantage, what can you do?

Jonathan Melton: Well, at the return hearing, um, you can def, you get to defend yourself. Either side can ask for attorney’s fees, so certainly, you defend yourself, you ask for attorney’s fees. If the judge finds that the domestic violence order of protection is not warranted and maybe you’ll get your fees, uh, taken care of. It’s also a Class 2 misdemeanor for making, um, false statements in a DVPO, so that’s, you know, something that, I guess, you could pursue as well.

Jaime Davis: We’ve talked a lot about 50B orders and what happens for folks that are in the, you know, requisite categories of dating relationship, household members, etc. What if you are not in one of those relationship, what relief is available?

Jonathan Melton: Outside one of those protected relationships, we’ll call them, really the only other civil relief that’s available to you would be to try to get a no contact order. And no contact orders are often called 50Cs ’cause they are under Chapter 50C of our North Carolina general statutes. And they’re basically, uh, stalking orders. Um, the only grounds is a person’s 16 years of age or older, you can’t try to get one for, against someone who’s younger than 16, and the grounds are non-consensual sexual conduct or stalking. And stalking is defined as reasonable fear of safety or, and substantial emotional distress, um, caused by, you know, continued harassment or fear of bodily injury.

Jaime Davis: And so to reach that stalking prong there’s gonna have to be a high level of communication, right? Like we’re talking, you know, hundreds of text messages, or phone calls, or driving by someone’s house, or, or, or is those the sorts of things we’re talking about?

Jonathan Melton: Yeah. Typically, you’re looking at an aggregate of contact. And it’s discretionary. Um, I don’t think a couple of text messages over a couple of days is gonna rise to the level. Obviously, hundreds of text messages over a couple of days might. Um, parking in front of someone’s home, looking, you see a lot of people looking into people’s windows –

Jaime Davis: Sure.

Jonathan Melton: – or contacting their boss, contacting their friends, con, contacting their neighbors. Things that a reasonable person would find substantially, emotionally distressful.

Jaime Davis: And is the procedure the same for someone who is seeking a 50C as with the 50B?

Jonathan Melton: Yes. Um, it’s the same procedure. You will fill out a form complaint, if, the judge will review it, if the judge thinks there’s enough in the form to give rise to a no contact order, they’ll issue a temporary ex parte order, it’s good for up to 10 days. And then everybody goes back down there and has that hearing that we talked about with the 50B. Um, but the enforcement of the order is substantially different.

Jaime Davis: And, how, how does that work?

Jonathan Melton: Uh, you can only enforce these orders by civil or criminal contempt. So if someone violates, then you file a civil or criminal contempt motion and then you have a hearing on it. There’s not that immediate arrest, imprisonment, charging with a crime. That, that is a remedy only available through 50B.

Jaime Davis: So, for either a 50C or the 50B DVPO that we were discussing earlier, what types of evidence would you need to gather in order to prop, pursue either one of these?

Jonathan Melton: Well, first and foremost, your own testimony is going to be your best evidence. So you will be your best witness. You need to tell the judge exactly what happened. Um, you need to describe it in the form complaint, and when you’re testifying, you need to be very clear what you felt, what the person looked like. Because when we’re talking about the subjective fear, the judge really needs to be able to feel like they are where you were at that moment. Um, any other witnesses who witnessed the act that gave rise to domestic violence order of protection, or witnessed you af, right afterwards. If someone can testify to how upset you were, how injured you were, that would be, uh, a good witness to bring. And then photographs. Photographs of your actual injuries if there were actual injuries. Or photographs of any destruction to your home, ’cause especially when the judge is looking at the prong for serious, imminent bodily injury, if the person’s punching holes in the walls or breaking windows, or ripping doors off the hinges, that’s your evidence of imminent, serious bodily injury.

Jaime Davis: And, uh, you know, I think it’s really important that if you are having to go through these types of incidents, call the police. I mean, document, document, document. You know, make sure that you reach out to the police, make sure that there’s a police report. And as you said, you know, take pictures of the damage, of any injuries. I think all that is really important.

Jonathan Melton: Right. Because in most civil, like most civil actions, it’s gonna be your word against that person’s word. So if you tell a close family or friend what is happening to you and that person can be a witness, if you tell the police and you can produce a police report, if you have photographs of destruction to your home or your property, of your injuries, that’s helpful. Text messages, threatening messages, threatening voicemails, videos, all of those things need to be preserved and brought to the hearing when you’re seeking one of these orders.

Jaime Davis: Well, Jonathan, thank you for joining me today. I think this has been a really helpful discussion. If any of our listeners would like to contact you, what is the best way for them to reach you?

Jonathan Melton: You can go to our website which is divorceistouch.com, and my contact information is there. My email address is jmelton@divorceistough.com. Or you can call our office at 919-367-1512.

Jaime Davis: I hope you all enjoyed this episode of A Year and a Day. If you have any suggestions for future episodes, I would love to hear from you. You can email me at jdavis@divorceistough.com. If you like what you heard today, please leave us a review on iTunes. As a reminder, while in my role as a lawyer, my job is to give folks legal advice. The purpose of this podcast is not to do that. This podcast is for general informational purposes only, should not be used as legal advice, and is specific to the law in North Carolina. If you have questions before you take any action, you should consult with a lawyer who is licensed in your state.

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