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50B Cases

Minors. Unless emancipated, a minor in 50B case needs a Rule 17 guardianMinor plaintiff: appoint when case commencedMinor defendant: appoint before hearing on

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50B Cases

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    1. 50B Cases Cheryl Howell April 1, 2004

    2. Minors Unless emancipated, a minor in 50B case needs a Rule 17 guardian Minor plaintiff: appoint when case commenced Minor defendant: appoint before hearing on “final” order Cost of GAL? Appoint parent or relative

    3. Dating Relationship 50B-1(b)(6) “the parties are romantically involved over time and on a continuous basis during the course of the relationship”

    4. Ex parte Relief GS 50B-2(c) When it appears from facts shown that there is a danger of acts of domestic violence against party or minor child, court may enter order prior to hearing to protect the party or child However, no ex parte custody unless child is exposed to substantial risk of bodily injury or sexual abuse

    5. Emergency Relief GS 50B-2(b) Can move for relief if party believes there is danger of serious and immediate injury to herself/himself or child When no ex parte order, hearing on emergency relief must be held 5 days after notice or service, whichever first occurs (but not before service)

    6. Standard for DVPO When plaintiff proves act of domestic violence, DVPO may be entered upon finding that order is “necessary to bring about the cessation of domestic violence.” Brandon, 132 N.C. App. 647 (1999) Bryant v. Williams (N.C. App. Dec. 3, 2003)

    7. Relief GS 50B-3(a): “The court … may grant any protective order … to bring about the cessation of acts of domestic violence. The court may: …” (1) through (12) items of relief …. (13) “Include any additional prohibitions or requirements that the court deems necessary to protect any party or any minor child.”

    8. Relief Story v. Story, 57 NCApp 509 (1982) GS 50B authorizes courts to enter temporary orders “as may be necessary to protect spouse or minor child from domestic violence,” including possession of home, temporary custody and support. Brandon v. Brandon, 132 NCApp 647 (1999) GS 50B-3(a) authorizes the issuance of a protective order “to bring about cessation of domestic violence.”

    9. In personam jurisdiction Service of process “Long-arm” statute: see G.S. 1-75.4 Due process satisfied by “minimum contacts” Does 50B require in personam or is it an “in rem”/status proceeding?

    10. Long-arm Statute Phone calls that amount to domestic violence Maybe G.S. 1-75.4(3)? Local act or omission: …any action claiming injury to person within this state arising out of an act within this State by defendant Do phone calls from out of state amount to action within this state?

    11. Due Process Defendant must have certain minimum contacts with NC such that the maintenance of suit does not offend “traditional notions of fair play and substantial justice.” Defendant’s conduct and connection with state are such that he should reasonably anticipate being haled into court in NC Minimum contacts determined by ascertaining what is fair and reasonable under the circumstances

    12. Minimum Contacts Court should consider: Quantity and nature of contacts Relationship between contacts and cause of action Interest of state in cause of action Convenience of parties Location of witnesses and evidence

    13. Jurisdiction Danna v. Danna, 88 NCApp 680 (1988) Whenever relief requested under 50B includes determination of custody or visitation rights, subject matter jurisdiction is determined by the UCCJEA. See also GS 50A-102(4). Affidavit required by GS 50A-209 with information about residence of child and parties should be submitted with pleading

    14. Emergency Jurisdiction 50A-204 Court has emergency jurisdiction when child is present in state and Child has been abandoned , or It is necessary to protect child because the child, or a parent or sibling, is threatened with abuse If action pending in another state, or if order has been entered in another state, court must immediately communicate with other court to “resolve the emergency.”

    15. 50B-3.1(a) factors Use or threatened use of deadly weapon by defendant or a pattern of conduct involving use or threatened use of violence with a firearm against persons Threats to seriously injure or kill plaintiff or child by defendant Threats to commit suicide by defendant, or Serious injury inflicted on plaintiff or child by defendant

    16. 50B-3 Renewal Can renew up to one year, even if previously renewed Motion must be filed before expiration of existing order May renew for “good cause”: no new act of domestic violence is required Order needs findings and conclusions

    17. “Threats” G.S. 50B-1(a)(2): placing party or member of party’s family or household in fear of “imminent serious bodily injury or continued harassment…” Fear is subjective – Objective reasonableness is not required.

    18. G.S. 50B-3.1 Upon finding grounds, court shall order surrender to sheriff of “all firearms, machine guns, ammunition, permits to purchase firearms, and permits to carry concealed firearms…” In the “care, custody, possession, ownership or control of the defendant.”

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