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50B Cases

50B Cases. Cheryl Howell April 1, 2004. 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. Dating Relationship. 50B-1(b)(6)

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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 ReliefGS 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 ReliefGS 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 Jurisdiction50A-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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