Legislation enacted during this past summer is set to take effect soon. S.L. 2022-48 addressing the renewal of domestic violence protective orders and S.L. 2022-47 addressing the process for authorized magistrates to issue ex parte domestic violence protective orders and ex parte civil no-contact orders both take effect December 1, 2022.
Renewal of a Domestic Violence Protective Order
While GS 50B-3(b) provides that a protective order “shall be for a fixed period not to exceed one year,” that statute also allows the court to renew any protective order, including a protective order that has previously been renewed, for an additional fixed period not to exceed two years. A protective order can be renewed for good cause. All provisions in the protective order can be renewed, except temporary custody provisions cannot exceed one year in total duration. G.S. 50B-3(a1)(4).
A motion requesting renewal of a domestic violence protective order must be filed before the expiration of the protective order. GS 50B-3(b). The hearing on the motion to renew can be held before or after the expiration of the order, but the protective order will expire according to its terms if the hearing on the motion is not held before the expiration date.
S.L. 2022-48 amends GS 50B-3(b) to clarify that the court is authorized to temporarily renew a protective order that will expire after the filing of the motion to renew and before the hearing on the motion to renew. The amended statute provides that when a motion to renew a protective order has been timely filed but the hearing on the motion to renew is scheduled for a time after the expiration of the existing DVPO, the court may temporarily renew the DVPO upon the ex parte request of a party for a fixed period of time not to extend beyond the date of the renewal hearing or 30 days from the date the current order is set to expire, whichever occurs first. The court can extend the order further upon the express written consent of both parties or their attorneys. The temporary renewal cannot extend a temporary award of custody beyond the maximum one-year period.
The provisions of the amended statute will apply to motions to renew filed before, on, or after December 1, 2022. The Administrative Office of the Courts has revised the motion to renew/modify/set aside domestic violence order and notice of hearing form (AOC-CV-313) to include an ex parte application for a party to request a temporary renewal order when the hearing on the motion to renew will not be heard before the current order expires. This form will be available on December 1, 2022. Also, a new form order on ex parte application to temporarily renew domestic violence protective order (AOC-CV-329) will be available on December 1, 2022.
Magistrate Ex Parte Orders
GS 50B-2(c1) allows a chief district court judge to authorize a magistrate or magistrates to issue ex parte domestic violence protective orders when the district court is not in session and a district court judge will not be available for four or more hours. Similarly, GS 50C-6(d) allows a chief district court judge to authorize a magistrate or magistrates to issue ex parte civil no-contact orders when the district court is not in session.
There has long been concern over the jurisdiction of an authorized magistrate to enter an ex parte order in a newly initiated action when the clerk’s office is closed. Rule 3 of the Rules of Civil Procedure provides that a civil action is commenced by the “filing of the complaint” and Rule 4 requires that a summons be issued upon the filing of the complaint. As a complaint generally is filed with the clerk and only the clerk generally can issue a summons, it has been unclear whether new Chapter 50B and Chapter 50C proceedings can be initiated by a magistrate.
S.L. 2022-47 amends GS 50B-2(c1) and GS 50C-6(d) to resolve this issue. The amended statutes specify that when a magistrate has been authorized to enter ex parte protective orders and ex parte civil no-contact orders, and a request for relief is made at a time when the clerk’s office is closed, the magistrate has the authority to take the complaint, record the filing date on the pleading, and issue a summons. The magistrate is required to deliver the documents to the clerk as soon as the clerk’s office is open for processing. Any endorsement or alias and pluries summons shall continue to be issued by the clerk, assistant clerk, or deputy clerk in accordance with G.S. 1A-1, Rule 4(d).