Articles in the Domestic Violence category - Page 2 of 3

The North Carolina General Assembly recently made two important changes to Chapter 50B regarding civil domestic violence protective orders. S.L. 2017-92, “Domestic Violence Appeals and Modifications”, was effective October 1, 2017.

Written by School of Government faculty member John Rubin In getting ready for the North Carolina magistrates’ fall conference and a session that I’m teaching on issuing process in domestic […]

This post is also published on the NC Criminal Law blog. 

Domestic violence protective orders (DVPOs) are available to “persons of the opposite sex who are . . . or have been in a dating relationship,” and who are able to establish that the person that they are or were dating committed an act of domestic violence against them. Persons of the same sex who are or were in a dating relationship don’t have the same opportunity. Is that constitutional? The Supreme Court of South Carolina just addressed a related question, and its opinion suggests that the answer is no.

My post last week discussed the decision in Mannise v. Harrell that told us a Chapter 50B proceeding is an in personam proceeding that requires all three prongs of personal jurisdiction. That case also reminded us that a plaintiff has the burden of producing evidence, “direct or indirect,” to establish prima facie that personal jurisdiction exists when a defendant properly objects to personal jurisdiction. As illustrated in Mannise, many plaintiffs in 50B proceedings are not prepared to meet this burden.

READ POST "Domestic Violence: more on Mannise and personal jurisdiction (September 16, 2016)"

While I always have believed a Chapter 50B proceeding requires all three prongs of personal jurisdiction as do most other civil actions, a few appellate courts in other states have held that some DVPOs can be entered without concern for long-arm statutory authorization or the minimum contacts required by Due Process. The North Carolina Court of Appeals finally had the opportunity to address the issue for the first time this week. The court held that because of the significant impact a DVPO has on a defendant, entry of any final DVPO without all three aspects of personal jurisdiction violates “Due Process and offend[s] traditional notions of fair play and substantial justice.”

This post was authored by School of Government faculty member Jeff Welty and posted originally on the School’s Criminal Law Blog

The United States Supreme Court recently decided a case about what counts as a “misdemeanor crime of domestic violence” for purposes of the federal statute prohibiting individuals who have been convicted of such crimes from possessing firearms. I’ve had several questions about whether the ruling affects last year’s Fourth Circuit decision holding that North Carolina assaults generally don’t qualify as “misdemeanor crime[s] of domestic violence.” For the reasons set out below, I don’t think the Supreme Court case clearly overrules the Fourth Circuit’s decision.

READ POST "Vinson, Voisine, and Misdemeanor Crimes of Domestic Violence (July 22, 2016)"

On Tuesday of this week, the Court of Appeals in Pope v. Pope upheld a decision by a trial judge to set aside a DVPO pursuant to GS 1A-1, Rule 60(b)(5). The trial court concluded, and the court of appeals agreed, that evidence showing plaintiff clearly was no longer afraid of defendant established that “it was no longer equitable for the judgment to have prospective application.”

READ POST "DVPO Can Be Set Aside When Victim is No Longer Afraid (May 20, 2016)"

In a recent post, I wrote about requiring surrender of firearms in a DVPO. The court of appeals issued on opinion on Tuesday this week discussing when the court can order return of those firearms. In Underwood v. Hudson, the court reversed a trial court order denying return of weapons after the appellate court concluded defendant was not subject to the lifetime ban on possession which arises when a person is convicted of a “misdemeanor crime of domestic violence.”

Chapter 50B requires that all civil domestic violence protective orders be of limited duration. GS 50B-3(b). However, that statute also allows the court to extend the life of a DVPO by renewing it at the request of the aggrieved party. Is a court required to renew the DVPO when requested? Is there a limit on the number of times an order can be renewed? Can a court change the terms of the order when it is renewed?  Unfortunately, Chapter 50B provides very little guidance on these and other issues that arise regarding the renewal process.

READ POST "Renewal of a DVPO (December 4, 2015)"

Both federal and state law prohibits the possession of firearms by anyone subject to a qualifying domestic violence protective order. However, the fact that possession of firearm is a crime does not give the trial court authority to order a defendant in a 50B proceeding to surrender all weapons.