Domestic Violence Issues Committee Considering Revisions To GS 50B-3(b)

By Kathleen Lockwood and Melissa Averett

The Domestic Violence Issues Committee of the Family Law Section is currently considering revisions to GS 50B-3(b), inspired by a 2014 Court of Appeals decision. In Rudder v Rudder, 234 N.C. App. 173 (2014), the Court of Appeals expressed some doubt whether the time limitations of G.S. 50B-3(b) apply to ex-parte orders entered pursuant to G.S. 50B-2. In Rudder, the court granted Plaintiff an ex parte order, which was extended for over 18 months and expired without entry of a DVPO. Two days after expiration of the ex parte order, the parties appeared in court on Defendant’s motion to return firearms, at which point the court granted Plaintiff a one-year DVPO. On appeal, the Court held that “upon expiration of the ex parte order after more than a year, the trial court no longer had jurisdiction under the original complaint to enter an order further extending the DVPO.”

Members of the Domestic Violence Issues Committee believe that the language in this holding may signal the Appellate Court’s desire to limit the amount of time that an ex-parte DVPO can be in effect pursuant to the time limitations of G.S. 50B-3(b). This provision currently states that “[p]rotective orders entered pursuant to this Chapter shall be for a fixed period of time not to exceed one year.” In Rudder, the Court recognized that this provision does not clearly distinguish between ex parte orders and DVPOs issued after notice to the defendant and a full adversarial hearing. Throughout the dicta of this case, the Court considered alternative interpretations of this provision, signaling the need to clarify the application of G.S. 50B-3(b) to ex parte orders.

The Domestic Violence Issues Committee is currently deciding between two possible proposals to clarify the timing requirements of 50B-3(b). Proposal 1, supported by the majority of committee members, clarifies that the clock starts for this one-year limit when a permanent DVPO is entered. Various sections of 50B use the term “permanent domestic violence protective order” to refer to orders entered after notice to the defendant and an opportunity for adversarial hearing, and this post will also use the term “DVPO” to refer to these orders.

Supporters of Proposal 1 believe that it will provide maximum relief for survivors of domestic violence and keep 50B-3(b) in line with the current judicial interpretation of this timing requirement in most, if not all, trial courts across the state. While the dicta of Rudder cast some doubt on the appellate court’s interpretation of this clause, the Court of Appeals recently provided greater clarity in an unpublished opinion directly addressing the meaning of this clause. In Shen v. McGowan (No. COA18-263, filed November 8, 2018), Defendant appealed the two-year renewal of a DVPO on the grounds that the initial DVPO had been in effect for over one-year prior to its renewal, calculating this one-year period by including the 28 days that an ex parte was in effect prior to the DVPO. The court cited language in Rudder to find unequivocally that “Defendant’s argument that the statute’s deadline includes the time the ex parte order was in effect is without merit.” This language, particularly in an opinion that is unpublished by the Court, indicates that a statutory change like Proposal 2 would shift the judicial interpretation of this time period from the appellate courts down to the trial level. Such a shift would alter the semblance of predictability that currently exists in calculating the maximum length of DVPO orders. As the defendant in Shen demonstrated, if a trial judge were to over-calculate this one-year period by even a day, it would create a domino effect that could forestall the ability of a plaintiff to otherwise renew their DVPO.

Even though Proposal 1 would provide a clear benefit for plaintiffs in a DVPO, we recognize that survivors of domestic violence can also appear as the defendant in a DVPO. By filing a DVPO or retaliatory criminal charges against a victim, abusers can use the court system as a tool to further isolate survivors from the legal and community resources they need to leave the relationship. Therefore, supporters of Proposal 1 feel it is important to recognize the ways that continuances can support a balanced and efficient adversarial process. We have seen continuances in pending DVPO cases benefit both parties to a DVPO in the following ways:

Discovery. The statutory language of 50B recognizes that DVPO cases should ideally be heard and decided within 10 days of service of a complaint. This expedited civil litigation timetable greatly benefits plaintiff in un-opposed DVPO cases or cases with extensive, readily available physical evidence. However, not all incidents of domestic violence come with obvious bruises, text messages, and confessions. Survivors of domestic violence regularly endure financial, emotional, and psychological abuse that does not leave a readily available trail of evidence. Plaintiffs and defendants alike need time to accumulate evidence in such cases, which may require discovery requests to medical and financial institutions, major corporations (think Google and Verizon Wireless), and law enforcement professionals that are not able to respond within a matter of days. Continuances in such cases allow both parties to consent to a longer period of discovery so that a court can assess more than contradictory testimony when hearing a DVPO case.

Settlement. DVPO cases do not occur in a vacuum, and the parties to a DVPO are often also involved in related family and criminal law matters. Continuances allow the parties, their sometimes varied attorneys, and prosecutors time to consult regarding global solutions to multiple pending court cases. Continuances for settlement are often entered without the need for a party to appear in court for each individual hearing date, which ultimately decreases the resources a survivor may spend in separately negotiating and trying each individual case and decreases the number of times a survivor may need to come to court to resolve multiple matters.

Plaintiff autonomy. On average, it takes a survivor seven attempts to leave an abusive relationship before finally leaving the abuser for good. The legal profession and court system must recognize this reality if it is going to address the needs of survivors in all parts of this process. As survivors experience the back-and-forth nature of an abusive relationship, they often request the dismissal of a DVPO to deescalate their abusive partner, allow them the ability monitor an abusive partner, or simply allow the time and space for reconciliation.  As a plaintiff to a civil action, survivors have the ability to unilaterally dismiss an ex parte order up until the moment the court enters a DVPO. Continuances prolong this period of plaintiff autonomy. This control gives plaintiff-survivors the autonomy they deserve, particularly in cases where survivors determine that a voluntary dismissal will keep them safer. This unilateral plaintiff control also benefits defendants subject to protective orders after the parties have resumed contact by allowing the plaintiff to dismiss the ex parte order at the moment of reconciliation rather than waiting for judicial approval at a later court date. While Proposal 2 will likely decrease instances of voluntary dismissal, we do not believe it will fundamentally change the cycle of domestic violence. As a result, courts are likely to see more set aside orders and DVPOs in place during periods of reconciliation if Proposal 2 were adopted.

On the whole, supporters of Proposal 1 believe that it will provide the greatest benefit to the family law bar and domestic violence survivors by clarifying the existing time calculation of 50B-3(b), providing maximum relief to survivors of domestic violence, and supporting the varied situations before the court in an adversarial DVPO.

Proposed language:

(b)        Protective orders entered pursuant to this Chapter shall be for a fixed period of time not to exceed one year from the issuance of a permanent domestic violence protective order.

One Year From When? Proposed Edits To NCGS 50B-3(b)

Chapter 50B allows for the entry of protective orders for a fixed period not to exceed one year, which can be renewed for a fixed period not to exceed two years. Chapter 50B does not clearly indicate when those fixed periods begin. The statute as written is vague regarding when the time periods start “(N)ot to exceed one year” could refer to one year from the filing of the complaint, from the entry of an ex parte order (if one is granted), from the first return hearing on an ex parte order, or one year from the entry of the final order¹; even if that final order is entered more than a year after the complaint was filed.

The Domestic Violence Committee of the Family Law Council has been grappling with this issue of the start date of the fixed period. Currently different judicial districts and different judges calculate the timing differently, creating inconsistent and often contradictory results from similar cases. Additionally, Rudder v. Rudder, 234 N.C. App. 173 (2014), contained dicta in which the Court of Appeals opined that an ex parte protective order should not be in effect for more than a year. In that case, the ex parte order was continued 13 times and had been in effect for 18 months. Id. The Rudder court stated “[w]e question whether the General Assembly intended for an ex parte DVPO to continue in effect for this length of time based on repeated continuances . . . [but] [w]e need not . . . specifically address that issue in order to resolve this appeal”. Id. at 182. If we do not resolve this issue with legislation, the Court of Appeals may do it for us, which can call the validity of existing protective orders into question. So, while the committee does not agree on the answer to the question of when the year should begin, the Domestic Violence Committee and the members of the Family Law Council agree that it’s an issue that needs to be addressed.

And that this is an issue that would benefit from input from the family law section.

Options for when the time period begins for the final, or “one” year,” order, include:

1. Allowing the fixed period to start on the date of the entry of the final order, regardless of how long the ex parte has been in effect. This option is supported by the North Carolina Coalition Against Domestic Violence and a majority of the members of the Family Law Council Domestic Violence Committee, or
2. A fixed period starting on the date of the first hearing after the complaint has been served on the Defendant. This option is supported by this writer and a minority of the members of the Family Law Council Domestic Violence Committee.
3. A fixed period starting with the date the complaint was filed
4. A fixed period starting with the date the Defendant is served with the complaint and ex parte order if one is granted
5. A fixed period from the date of the entry of the final order, and a provision that an ex parte order may not remain in effect for more than a fixed period not to exceed X period of time (6 months? 12 months?)

This article seeks to explain the negative consequences of option 1 versus option 2.

Multiple Continuances

The fixed period not to exceed one year to start on the date of the entry of the final order, regardless of how long the ex parte has been in effect, affords plaintiffs and their children the longest possible period of protection. For example, while the parties negotiate, an ex parte order remains in effect for 18 months and then the plaintiff is granted a protective order for an additional 12 months. That is a total of 30 months. Protecting victims of domestic violence is unquestionably the purpose of Chapter 50B. However, if there is no incentive on either side to push for a resolution, then the case could drag on for many months through multiple continuances.

Multiple continuances have consequences, including but not limited to:

1. Reduced resources for domestic violence victims: Multiple court dates to keep the ex parte order in effect is costly for the court;, and in some cases, court interpreters. Multiple continuances result in more work for Legal Aid attorneys representing victims, more work for domestic violence advocates, and more money from the funds that support programs that assist victims. In contrast, cases being resolved faster due to fewer continuances means less crowded dockets, less paperwork, more funds for
2. Increased likelihood of mistakes and/ or involuntary dismissal. For example, forgetting to check the box on the continuation form that allows the ex parte order to remain in effect. is a common error made by attorneys and judges. The ex parte order has to be continued in effect before it expires. It cannot be resurrected. If the ex parte order is not continued in place, then the plaintiff loses her protection. This is what happened in the Rudder case on the 13th Additionally, if the plaintiff inadvertently fails to attend one of the hearing dates, the defendant could move to have the complaint dismissed, or the court can dismiss the case for failure to prosecute.
3. Reduced likelihood of a successful hearing for the Plaintiff: Evidence, especially cell phone evidence, gets lost as time passes. Memories fade and witnesses lose
4. Increased cost to Plaintiff. Continuances result in missed days at work, having to arrange for child care and transportation for each court date, and attorney’s fees if the Plaintiff has hired
5. Danger to the Plaintiff: In addition to the plaintiff’s stress at having to see the defendant at each setting. Each court date allows the defendant to know where and when to find the Plaintiff. Only two months ago, a domestic violence victim was shot by the Defendant in a courthouse in Pennsylvania while attending her domestic violence hearing. The Defendant also shot three other people. ²

Increased Number Of Voluntary Dismissals

Unlike Option 2, Option 1 seeks to keep the case in court for the longest possible period of time. Complaints regarding the number of voluntary dismissals are undermine the legitimacy and seriousness of domestic violence in general, and the given victim in particular. According to research on domestic violence court cases, the longer the case continues, the more likely the plaintiff will dismiss the case. ³ For example, the longer the case takes to resolve, the more likely it is that the Plaintiff will need to communicate with the Defendant due to financial issues, or issues involving their children or family members, and contact between the parties gives the Defendant the opportunity to pressure the Plaintiff to dismiss the complaint.⁴ Resolving those issues in a final order sooner rather than later makes dismissals less likely.

Another reason that plaintiffs dismiss cases is because of the natural and biological reduction in fear over time. The body cannot exist in a constant state of fear because fear produces adrenaline.”⁵ Because of the negative effects of adrenaline, the body and the brain work to numb reactions to events that repeatedly result in fear or anger or to avoid those situations. Simply put, no one can live in a constant state of fear or anger, and reliving one or more violent incidents will cause the victim to become numb to the reality of the event. And because fear fades over time, and the plaintiff becomes less invested in the outcome accordingly.

Due to the high rate of recidivism in domestic violence cases⁶, Plaintiffs often regret dismissing claims for a protective order⁷ and maybe embarrassed to file for a new one. Friends and family often distance themselves from a victim who dismisses his/her action, further isolating the victim when the next violent event occurs.

But What About Pending Criminal Charges?

Defendants have rights as well. However, defendants, often misuse the protections afforded by the Fifth Amendment of the U.S. Constitution to continue protective order cases until the criminal case is resolved. Any criminal defense attorney will tell you that delay typically benefits the Defendant in a criminal case. Not only is the plaintiff having to come back to court month after month for the civil protective order, the plaintiff is having to come back to court, or at least be on call, for every date that the criminal case is scheduled. The civil and criminal hearings are not necessarily held on the same dates. The Fifth Amendment of the U.S. Constitution affords criminal defendants the right to not testify against themselves in a criminal trial, but “(t)here is no constitutional right to stay a civil proceeding pending the outcome of a parallel criminal proceeding.” United States v. Kordel, 397 U.S. 1, 11 (1970) See, e.g., Federal Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902 (9th Cir. 1989) (“[w]hile a district court may stay civil proceedings pending the outcome of parallel criminal proceedings, such action is not required by the Constitution”); SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1375 (D.C. Cir. 1980) (“[t]he Constitution, therefore, does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings”). Similarly, in Guzman v. Gore, a case involving a civil hearing on the return of a driver’s license and the related hearing on the drunk driving charges, the North Carolina Court of Appeals dismissed Guzman’s argument that his constitutional right had been violated when his motion to continue his civil proceeding until after the resolution of a related criminal proceeding was denied. See generally 2010 N.C. App. LEXIS 1414 (N.C. Ct. App. 2010).8

In fact, the North Carolina Administrative Office of the Courts has stated that “[t]he best practice is for civil cases to be heard as soon as practicable and not continued for the sole purpose of being heard at the same time as a related criminal case.” North Carolina Domestic Violence Best Practices Guide for District Court Judges, North Carolina Administrative Office of the Courts, 27 (2012). In advising against continuances based on parallel criminal charges, the North Carolina Administrative Office of the Courts cites safety risk to plaintiffs and plaintiffs being prevented from obtaining a one-year DVPO. Id.

In summary, Option 2 seeks to limit the amount of time between the filing of a complaint for a domestic violence protective order and the entry or denial of the final order.

Limiting that period of time reduces court dates which benefits the court system and domestic violence victims, and may reduce in the number of dismissed cases both voluntary and involuntary. The advantages to option 2 outweigh the protection afforded by having the ex parte in effect for a longer period.

1 For purposes of clarity in this article, the term “final order” refers to the order that is entered following a hearing after service of the complaint on Defendant  and the ex parte order (if one is granted) and any continuances to the ex parte order. This order is sometimes referred to as the “one year order.”

2 Defendant shot Plaintiff and 3 other people at DV hearing in September 2018 https://www.nytimes.com/2018/09/19/us/masontown-shooting-judges-office.html;

3 https://www.huffingtonpost.com/entry/5-reasons-victims-drop-restraining-orders-even- though_us_596fed5fe4b0f68541cd6270

4 https://www.reuters.com/article/us-domestic-violence-study/study-shows-why-domestic-violence-victims-drop-charges-idUSTRE77I6FE20110819

5 “Epinephrine, more commonly known as adrenaline, is a hormone secreted by the medulla of the adrenal glands. Strong emotions such as fear or anger cause epinephrine to be released into the bloodstream, which causes an increase in heart rate, muscle strength, blood pressure, and sugar metabolism https://www1.udel.edu/chem/C465/senior/fall00/Performance1/epinephrine.htm.html

6 Wide range of recidivism up to 65.5% , POs violated at a rate of between 44% to 70%  https://domesticviolenceresearch.org/domestic-violence-facts-and-statistics-at-a-glance/

7 In a 2010 study of 731 DVPO claims filed in Durham, 30% of the plaintiffs had filed for a previous DVPO against the same Defendant in the previous year. http://victimsofcrime.org/docs/information%20clearinghouse/who-are-the-defendants-in-domestic-violence-protection-order-cases.pdf?sfvrsn=4

8 Many thanks to NCCADV for their assistance in researching this topic.