Domestic Violence Law - PowerPoint Presentation

Slide1

Domestic Violence Law

2016 MAVL CLESlide2

Overview

Obtaining a Domestic Violence Order of Protection (50B)

Statutory Requirements

Court Process

Remedies

What happens next?

Enforcement

Renewal

Setting Orders Aside

ABCs of DV: Comparison of 50B, 50C, and 50D

Child Custody

Temporary Custody, Emergency Custody, and 50A actions

Representing DV Victims

DV Dynamics

Safety

PlanningSlide3

Statutory Requirements (NCGS 50B)

Act of “domestic violence”

Attempting to cause or intentionally causing bodily injury to: (a) Plaintiff (b) minor child residing with Plaintiff or (c) minor child in the custody of Plaintiff

Any act defined NCGS 14-27.21 through 27.33 (includes 1

st

and 2

nd

degree rape, 1

st

and 2

nd

degree sexual offense, sexual battery, or sexual activity by substitute parent) committed against a) Plaintiff (b) minor child residing with Plaintiff or (c) minor child in the custody of Plaintiff

Placing any of the following fear of imminent serious bodily injury OR fear of continued harassment that rises to such a level as to inflect substantial emotional distress: (a) Plaintiff (b) member of Plaintiff’s family (c) member of Plaintiff’s household

Excludes self-defenseSlide4

Statutory Requirements (NCGS 50B)

“personal relationship”

C

urrent

or former spouses;

Persons

of opposite sex who live together or have lived together;

P

arents

and

children -- including

others acting in loco

parentis, grandparents, and grandchildren

Persons with a child

in common;

C

urrent

or former household members;

Persons

of the opposite sex who are in a dating relationship or have been in a dating

relationship

“dating relationship” means the parties

are romantically involved over time and on a continuous basis during the course of the relationship.

Casual

acquaintance or ordinary fraternization between persons in a business or social context

doesn’t qualify

Orders will not be entered against those 16 years and younger

Same-sex parties must qualify under 1, 4, or 5Slide5

Obtaining a DVPO: Court Process

Obtain, complete, and file Complaint and Motion for DVPO – at no cost to ANY Plaintiff

Other related forms include identifying information about the defendant, affidavit as to status of minor child, etc.

Go in front of a judge to get an Ex Parte temporary order

In Buncombe, the Plaintiff must

be

in the Helpmate office on the 2

nd

floor of the new courthouse at

8:30am or 1:30pm with paperwork completed in order to go before a

Judge

In outer counties, the Plaintiff can go in front of any District Court Judge on the bench that day

If no judge is available, Plaintiff can go in front of a Magistrate and return the following day (or ASAP) to see a Judge

A hearing on the Plaintiff’s request is scheduled within 10 days of the filing regardless if an Ex Parte order is issued

All documents are then delivered to the sheriff’s department for service on the DefendantSlide6

Obtaining a DVPO: Court Process

Documents given to Plaintiff and served to Defendant:

Summons

Notice of Hearing

Complaint and Motion for DVPO

Ex Parte DVPO, if granted Slide7

DVPO Hearing: Scheduling

Buncombe: DV Court every Thursday at 9:30 in 2A

Outer counties: any day other than DSS court days

Related criminal charges?

Common: assault on a female, communicating threats, assault with a deadly weapon, injury to personal property

Buncombe: doesn’t impact court calendar unless attorneys/parties elect to continue in consideration

DA’s office prefers to be consulted if charges are “dismissed” in a settlement

Outer counties: judges prefer to link the cases together for judicial efficiency

District Attorney’s office might work in your DVPO into the Defendant’s plea dealSlide8

Obtaining a DVPO: Continuances

Request for continuance generally granted

Always request that Ex Parte order stays in effect

Make sure Plaintiff gets a copy of the continuance order, otherwise there may be difficulties enforcing it

Does your client not have custody of any minor children?

Ask opposing party/attorney to modify and memorialize the agreement on the continuance order itself OR in a Memorandum of Judgment

Moved no later than 10 days

U

nless both parties consent to a date farther out

In outer counties you can continue to whatever date you want. In Buncombe you may have to work around the court’s datesSlide9

Obtaining a DVPO: 2 routes

Granted by Judge after a hearing

Default hearing if Defendant doesn’t appear but has been served

Standard civil hearing with direct, cross, and introducing evidence

Consent order entered into freely by Defendant

With or without findings

Attach Memorandum of Judgment to address custody issues, property exchange, etc.Slide10

Remedies

Direct a party to refrain

from:

Threatening, abusing, or following the other party.

Harassing

the other party, including by

phone

, visiting the home or

work,

etc

Cruelly

treating or abusing an animal owned, possessed, kept, or held as a pet by either party or minor

child

Otherwise

interfering with the other party.

Award temporary

custody of minor children

& establish

temporary visitation rights

Grant possession

of the

residence/household and

exclude the other party

Require

a party to provide a spouse and his or her children suitable alternate housing

.

Order the eviction of a party from

residence and assist the

victim in

returning

Provide for possession of personal property of the parties, including

pets

Prohibit a party from purchasing a firearm for a time fixed in the order

.Slide11

Remedies: continued

Require the abuser to attend and complete an abuser treatment program if the program is approved by the Domestic Violence Commission

Order either party to make payments for the support of a minor child as required by law.

Order either party to make payments for the support of a spouse as required by law.

Award attorney's fees to either party.

Any additional prohibitions or requirements deemed necessary to protect any party or any minor

child

Property transfer (ex: car keys)Slide12

Enforcement: Criminal

Box 1: D shall

not assault, threaten, abuse, follow, harass (by telephone, visiting the home or workplace, or other means),

or interfere

with

P.

Box 2:

D shall

not assault, threaten, abuse, follow, harass (by telephone, visiting the home or workplace, or other means),

or interfere

with the minor child(

ren

) residing with or in the custody of

P.

Box 7:

D shall

stay away from

P's residence

or any place where

P receives temporary shelter.“A law enforcement officer shall arrest the defendant if

the officer

has probable cause to believe

the defendant

has violated this provision

.”Slide13

Enforcement: Criminal

Plaintiff simply calls police or goes to local magistrate’s office to report violations

Results in Class A1 misdemeanor charge

Three strikes results in Class H felony

Violations with a gun results in Class H

felony

Going to a DV shelter and violating an order results in Class H felony

Committing a felony and violating an order bumps the felony up one classSlide14

Enforcement: Civil

If Defendant fails to follow other provisions of the DVPO, such as those addressing temporary child custody, property exchange, etc. Plaintiff can file contempt motion

Can use AOC court forms available at the clerk’s office and can file pro seSlide15

Renewal: NCGS § 50B-3(b)

A judge may

renew a

DVPO for up to 2 years

,

including an order that previously has been renewed

, upon a motion

filed

before the expiration

of the current

order

Can be renewed again and again

Motion to Renew (AOC form) must be filed before existing order expires

Temporary custody provisions cannot be renewed

Unless the original order was for less than 1 year

Grounds? “good cause.”

No new act of DV has to occur!Slide16
Slide17

Setting Orders Aside

“I move that the Domestic Violence Protective Order previously entered on the date listed below be set

aside because

it is no longer equitable that the order have future application or for other good cause pursuant

to Rule

60(b)(5) or (6

).”

“State reasons for setting

aside protective

order

.”

Judges are looking for corrective action on Defendant’s part

Motion to Set Aside can be filed at any time before the order expires

The closer the expiration, less likely to be successfulSlide18

50C

No-Contact Order for Stalking or Nonconsensual Sexual Conduct

Stalking: on

more than one occasion, following or otherwise harassing, as defined in G.S. 14-277.3A(b)(2), another person without legal purpose with the intent to do any of the following:

Place

the person in reasonable fear either for the person's safety or the safety of the person's immediate family or close personal associates.

Cause

that person to suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment and that in fact causes that person substantial emotional distress

.

Sexual conduct:

Any

intentional or knowing touching, fondling, or sexual penetration by a person, either directly or through clothing, of the sexual organs, anus, or breast of another, whether an adult or a minor, for the purpose of sexual gratification or arousal.

Includes

the transfer or transmission of semen.Slide19

50D

Permanent Civil No-Contact Order Against Sex Offender on Behalf of Crime

Victim

Requirements:

Respondent

was convicted of committing a sex offense against the victim.

Victim

did not seek a permanent no-contact order under G.S.

15A-1340.50

Reasonable

grounds exist for the victim to fear future contact with the respondent

.

Effective October 2015Slide20

Custody

Temporary custody may be awarded through the DVPO for up to 1 year, either by consent of the parties or by a judge IF there has been domestic violence in front of the child, the child is at risk of harm

Any subsequent order issued in a 50A child custody action will trump the custody provisions in the DVPO

Pending DVPOs may also be transferred to family court in Buncombe County if there is a pending custody action

Makes sense to have everything heard at once if there are overlapping issues in both matters

“Best interest of the child” is always the legal standardSlide21

Emergency Custody, NCGS 50-13.5(d)

Ex Parte filing and signing of custody order by a judge, prior to notice to the other side

Grounds:

child is exposed to a substantial risk of bodily injury or sexual

abuse, OR

there

is a substantial risk that the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction of North Carolina

courts

Return hearing for a temporary custody order is scheduled within 10 days of the order being signed and executedSlide22

Standard Custody Actions

Either parent may file a complaint for child custody order

Buncombe County: assigned a judge and 2 week term of court by the family court coordinator

Typically heard within 30-45 days of filing

Can also file motion for expedited hearing

Henderson County: file a notice of hearing along with the child custody complaint for at least 10 days away for a temporary custody hearing

After a temporary custody order is entered, either party can file a notice of hearing to return to court

Ultimately turns into a permanent custody order if not changed within a reasonable period of time (usually 1 year)

Can’t be changed unless a motion to modify is filled, alleging a substantial change in circumstances affecting best interest of the childSlide23

Custody Mediation

Required in North Carolina for initial custody filings and motions to modify

Requirement can be waived by filing a motion

Buncombe County: judge will rule after reading the pleadings and motion to waive

Henderson County: notice the motion on for a separate hearingSlide24
Slide25

“Why don’t you just leave?”

Often people do not understand the difficulties and dangers of leaving an abusive relationship

Relationship

violence is a combination of a number of different tactics of abuse that are used to maintain 

power and

control:

Coercion

and threats

Intimidation

Emotional abuse

Isolation

Minimizing, denying and blaming

Using children

Economic abuse

Male privilege

Many of these can

feel subtle and normal

Many

of these can be happening at any one time, all as a way to enforce power within the relationship.

Used

to keep

the victim in

the relationship.

P

hysical

, visible

violence are

more overt and forceful, and often

these intense

acts

reinforce

the regular use of other subtler methods of abuse.Slide26

Safety Planning

Until the abuser leaves:

During an argument, avoid the

bathroom, kitchen, bedroom or anywhere

weapons may be.

T

ry

to stay in a room

where there is access

to an

exit

Remove weapons from the

house

Confide in neighbors and ask them to

call the

police

Advise kids to

stay out of

conflicts

and instruct them in ways of getting help. Discuss a safety plan with your kids for when they are alone with the abuser

Devise a code word to use with

kids,

family, friends, and neighbors when you need

help.

Once the abuser leaves:

Change

door locks as

soon as possible after

the abuser leaves

. Buy additional locks and safety devices to secure

windows

.

Inform neighbors

and landlord that

the abuser no

longer lives

at the home and

that

the

police

should be called if the abuser returnsSlide27

Preparing to Exit

Make

arrangements for a place of refuge before

leaving.

Open

a

separate bank account and/or

a credit card

to

establish or increase

independence.

Agree

upon a coded message with friends and family to signal

the departure

Rehearse departure with children.

Plan to depart at a time when batterer is not present in the home.

In a bag, hide

money,

extra

set of house and car keys, and clothing

.

Have available the following items:

Social security

numbers, birth certificates, driver’s license, marriage license

Rent

and utility

receipts, insurance policies

Bank

account numbers, checkbook, and ATM card

Valuable

jewelry

Important telephone numbers