State Codes and Statutes

Statutes > North-carolina > Chapter_50B > GS_50B-2

§ 50B‑2.  Institution ofcivil action; motion for emergency relief; temporary orders; temporary custody.

(a)        Any person residingin this State may seek relief under this Chapter by filing a civil action or byfiling a motion in any existing action filed under Chapter 50 of the GeneralStatutes alleging acts of domestic violence against himself or herself or aminor child who resides with or is in the custody of such person. Any aggrievedparty entitled to relief under this Chapter may file a civil action and proceedpro se, without the assistance of legal counsel. The district court division ofthe General Court of Justice shall have original jurisdiction over actionsinstituted under this Chapter. Any action for a domestic violence protectiveorder requires that a summons be issued and served. The summons issued pursuantto this Chapter shall require the defendant to answer within 10 days of thedate of service. Attachments to the summons shall include the complaint, noticeof hearing, any temporary or ex parte order that has been issued, and otherpapers through the appropriate law enforcement agency where the defendant is tobe served. No court costs shall be assessed for the filing, issuance,registration, or service of a protective order or petition for a protectiveorder or witness subpoena in compliance with the Violence Against Women Act, 42U.S.C. § 3796gg‑5.

(b)        Emergency Relief. –A party may move the court for emergency relief if he or she believes there isa danger of serious and immediate injury to himself or herself or a minorchild. A hearing on a motion for emergency relief, where no ex parte order isentered, shall be held after five days' notice of the hearing to the otherparty or after five days from the date of service of process on the otherparty, whichever occurs first, provided, however, that no hearing shall berequired if the service of process is not completed on the other party. If theparty is proceeding pro se and does not request an ex parte hearing, the clerkshall set a date for hearing and issue a notice of hearing within the timeperiods provided in this subsection, and shall effect service of the summons,complaint, notice, and other papers through the appropriate law enforcementagency where the defendant is to be served.

(c)        Ex Parte Orders. – Priorto the hearing, if it clearly appears to the court from specific facts shown,that there is a danger of acts of domestic violence against the aggrieved partyor a minor child, the court may enter orders as it deems necessary to protectthe aggrieved party or minor children from those acts provided, however, that atemporary order for custody ex parte and prior to service of process and noticeshall not be entered unless the court finds that the child is exposed to asubstantial risk of physical or emotional injury or sexual abuse. If the courtfinds that the child is exposed to a substantial risk of physical or emotionalinjury or sexual abuse, upon request of the aggrieved party, the court shallconsider and may order the other party to stay away from a minor child, or toreturn a minor child to, or not remove a minor child from, the physical care ofa parent or person in loco parentis, if the court finds that the order is inthe best interest of the minor child and is necessary for the safety of theminor child. If the court determines that it is in the best interest of theminor child for the other party to have contact with the minor child orchildren, the court shall issue an order designed to protect the safety andwell‑being of the minor child and the aggrieved party. The order shallspecify the terms of contact between the other party and the minor child andmay include a specific schedule of time and location of exchange of the minorchild, supervision by a third party or supervised visitation center, and anyother conditions that will ensure both the well‑being of the minor childand the aggrieved party. Upon the issuance of an ex parte order under thissubsection, a hearing shall be held within 10 days from the date of issuance ofthe order or within seven days from the date of service of process on the otherparty, whichever occurs later. If an aggrieved party acting pro se requests exparte relief, the clerk of superior court shall schedule an ex parte hearingwith the district court division of the General Court of Justice within 72hours of the filing for said relief, or by the end of the next day on which thedistrict court is in session in the county in which the action was filed,whichever shall first occur. If the district court is not in session in saidcounty, the aggrieved party may contact the clerk of superior court in anyother county within the same judicial district who shall   schedule an ex partehearing with the district court division of the General Court of Justice by theend of the next day on which said court division is in session in that county.Upon the issuance of an ex parte order under this subsection, if the party isproceeding pro se, the Clerk shall set a date for hearing and issue a notice ofhearing within the time periods provided in this subsection, and shall effectservice of the summons, complaint, notice, order and other papers through theappropriate law enforcement agency where the defendant is to be served.

(c1)      Ex Parte Orders byAuthorized Magistrate. – The chief district court judge may authorize amagistrate or magistrates to hear any motions for emergency relief ex parte.Prior to the hearing, if the magistrate determines that at the time the partyis seeking emergency relief ex parte the district court is not in session and adistrict court judge is not and will not be available to hear the motion for aperiod of four or more hours, the motion may be heard by the magistrate. If itclearly appears to the magistrate from specific facts shown that there is adanger of acts of domestic violence against the aggrieved party or a minorchild, the magistrate may enter orders as it deems necessary to protect theaggrieved party or minor children from those acts, except that a temporaryorder for custody ex parte and prior to service of process and notice shall notbe entered unless the magistrate finds that the child is exposed to asubstantial risk of physical or emotional injury or sexual abuse. If themagistrate finds that the child is exposed to a substantial risk of physical oremotional injury or sexual abuse, upon request of the aggrieved party, themagistrate shall consider and may order the other party to stay away from aminor child, or to return a minor child to, or not remove a minor child from,the physical care of a parent or person in loco parentis, if the magistratefinds that the order is in the best interest of the minor child and isnecessary for the safety of the minor child. If the magistrate determines thatit is in the best interest of the minor child for the other party to havecontact with the minor child or children, the magistrate shall issue an orderdesigned to protect the safety and well‑being of the minor child and theaggrieved party. The order shall specify the terms of contact between the otherparty and the minor child and may include a specific schedule of time andlocation of exchange of the minor child, supervision by a third party orsupervised visitation center, and any other conditions that will ensure both thewell‑being of the minor child and the aggrieved party. An ex parte orderentered under this subsection shall expire and the magistrate shall schedule anex parte hearing before a district court judge by the end of the next day onwhich the district court is in session in the county in which the action wasfiled. Ex parte orders entered by the district court judge pursuant to thissubsection shall be entered and scheduled in accordance with subsection (c) ofthis section.

(c2)      The authoritygranted to authorized magistrates to award temporary child custody pursuant tosubsection (c1) of this section and pursuant to G.S. 50B‑3(a)(4) isgranted subject to custody rules to be established by the supervising chiefdistrict judge of each judicial district.

(d)        Pro Se Forms. – Theclerk of superior court of each county shall provide to pro se complainants allforms that are necessary or appropriate to enable them to proceed pro sepursuant to this section. The clerk shall, whenever feasible, provide a privatearea for complainants to fill out forms and make inquiries. The clerk shallprovide a supply of pro se forms to authorized magistrates who shall make theforms available to complainants seeking relief under subsection (c1) of thissection.  (1979,c. 561, s. 1; 1985, c. 113, ss. 2, 3; 1987 (Reg. Sess., 1988), c. 893, s. 2;1989, c. 461, s. 1; 1994, Ex. Sess., c. 4, s. 1; 1997‑471, s. 2; 2001‑518,s. 4; 2002‑126, s. 29A.6(a); 2004‑186, ss. 17.2, 19.1; 2009‑342,s. 2.)

State Codes and Statutes

Statutes > North-carolina > Chapter_50B > GS_50B-2

§ 50B‑2.  Institution ofcivil action; motion for emergency relief; temporary orders; temporary custody.

(a)        Any person residingin this State may seek relief under this Chapter by filing a civil action or byfiling a motion in any existing action filed under Chapter 50 of the GeneralStatutes alleging acts of domestic violence against himself or herself or aminor child who resides with or is in the custody of such person. Any aggrievedparty entitled to relief under this Chapter may file a civil action and proceedpro se, without the assistance of legal counsel. The district court division ofthe General Court of Justice shall have original jurisdiction over actionsinstituted under this Chapter. Any action for a domestic violence protectiveorder requires that a summons be issued and served. The summons issued pursuantto this Chapter shall require the defendant to answer within 10 days of thedate of service. Attachments to the summons shall include the complaint, noticeof hearing, any temporary or ex parte order that has been issued, and otherpapers through the appropriate law enforcement agency where the defendant is tobe served. No court costs shall be assessed for the filing, issuance,registration, or service of a protective order or petition for a protectiveorder or witness subpoena in compliance with the Violence Against Women Act, 42U.S.C. § 3796gg‑5.

(b)        Emergency Relief. –A party may move the court for emergency relief if he or she believes there isa danger of serious and immediate injury to himself or herself or a minorchild. A hearing on a motion for emergency relief, where no ex parte order isentered, shall be held after five days' notice of the hearing to the otherparty or after five days from the date of service of process on the otherparty, whichever occurs first, provided, however, that no hearing shall berequired if the service of process is not completed on the other party. If theparty is proceeding pro se and does not request an ex parte hearing, the clerkshall set a date for hearing and issue a notice of hearing within the timeperiods provided in this subsection, and shall effect service of the summons,complaint, notice, and other papers through the appropriate law enforcementagency where the defendant is to be served.

(c)        Ex Parte Orders. – Priorto the hearing, if it clearly appears to the court from specific facts shown,that there is a danger of acts of domestic violence against the aggrieved partyor a minor child, the court may enter orders as it deems necessary to protectthe aggrieved party or minor children from those acts provided, however, that atemporary order for custody ex parte and prior to service of process and noticeshall not be entered unless the court finds that the child is exposed to asubstantial risk of physical or emotional injury or sexual abuse. If the courtfinds that the child is exposed to a substantial risk of physical or emotionalinjury or sexual abuse, upon request of the aggrieved party, the court shallconsider and may order the other party to stay away from a minor child, or toreturn a minor child to, or not remove a minor child from, the physical care ofa parent or person in loco parentis, if the court finds that the order is inthe best interest of the minor child and is necessary for the safety of theminor child. If the court determines that it is in the best interest of theminor child for the other party to have contact with the minor child orchildren, the court shall issue an order designed to protect the safety andwell‑being of the minor child and the aggrieved party. The order shallspecify the terms of contact between the other party and the minor child andmay include a specific schedule of time and location of exchange of the minorchild, supervision by a third party or supervised visitation center, and anyother conditions that will ensure both the well‑being of the minor childand the aggrieved party. Upon the issuance of an ex parte order under thissubsection, a hearing shall be held within 10 days from the date of issuance ofthe order or within seven days from the date of service of process on the otherparty, whichever occurs later. If an aggrieved party acting pro se requests exparte relief, the clerk of superior court shall schedule an ex parte hearingwith the district court division of the General Court of Justice within 72hours of the filing for said relief, or by the end of the next day on which thedistrict court is in session in the county in which the action was filed,whichever shall first occur. If the district court is not in session in saidcounty, the aggrieved party may contact the clerk of superior court in anyother county within the same judicial district who shall   schedule an ex partehearing with the district court division of the General Court of Justice by theend of the next day on which said court division is in session in that county.Upon the issuance of an ex parte order under this subsection, if the party isproceeding pro se, the Clerk shall set a date for hearing and issue a notice ofhearing within the time periods provided in this subsection, and shall effectservice of the summons, complaint, notice, order and other papers through theappropriate law enforcement agency where the defendant is to be served.

(c1)      Ex Parte Orders byAuthorized Magistrate. – The chief district court judge may authorize amagistrate or magistrates to hear any motions for emergency relief ex parte.Prior to the hearing, if the magistrate determines that at the time the partyis seeking emergency relief ex parte the district court is not in session and adistrict court judge is not and will not be available to hear the motion for aperiod of four or more hours, the motion may be heard by the magistrate. If itclearly appears to the magistrate from specific facts shown that there is adanger of acts of domestic violence against the aggrieved party or a minorchild, the magistrate may enter orders as it deems necessary to protect theaggrieved party or minor children from those acts, except that a temporaryorder for custody ex parte and prior to service of process and notice shall notbe entered unless the magistrate finds that the child is exposed to asubstantial risk of physical or emotional injury or sexual abuse. If themagistrate finds that the child is exposed to a substantial risk of physical oremotional injury or sexual abuse, upon request of the aggrieved party, themagistrate shall consider and may order the other party to stay away from aminor child, or to return a minor child to, or not remove a minor child from,the physical care of a parent or person in loco parentis, if the magistratefinds that the order is in the best interest of the minor child and isnecessary for the safety of the minor child. If the magistrate determines thatit is in the best interest of the minor child for the other party to havecontact with the minor child or children, the magistrate shall issue an orderdesigned to protect the safety and well‑being of the minor child and theaggrieved party. The order shall specify the terms of contact between the otherparty and the minor child and may include a specific schedule of time andlocation of exchange of the minor child, supervision by a third party orsupervised visitation center, and any other conditions that will ensure both thewell‑being of the minor child and the aggrieved party. An ex parte orderentered under this subsection shall expire and the magistrate shall schedule anex parte hearing before a district court judge by the end of the next day onwhich the district court is in session in the county in which the action wasfiled. Ex parte orders entered by the district court judge pursuant to thissubsection shall be entered and scheduled in accordance with subsection (c) ofthis section.

(c2)      The authoritygranted to authorized magistrates to award temporary child custody pursuant tosubsection (c1) of this section and pursuant to G.S. 50B‑3(a)(4) isgranted subject to custody rules to be established by the supervising chiefdistrict judge of each judicial district.

(d)        Pro Se Forms. – Theclerk of superior court of each county shall provide to pro se complainants allforms that are necessary or appropriate to enable them to proceed pro sepursuant to this section. The clerk shall, whenever feasible, provide a privatearea for complainants to fill out forms and make inquiries. The clerk shallprovide a supply of pro se forms to authorized magistrates who shall make theforms available to complainants seeking relief under subsection (c1) of thissection.  (1979,c. 561, s. 1; 1985, c. 113, ss. 2, 3; 1987 (Reg. Sess., 1988), c. 893, s. 2;1989, c. 461, s. 1; 1994, Ex. Sess., c. 4, s. 1; 1997‑471, s. 2; 2001‑518,s. 4; 2002‑126, s. 29A.6(a); 2004‑186, ss. 17.2, 19.1; 2009‑342,s. 2.)


State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_50B > GS_50B-2

§ 50B‑2.  Institution ofcivil action; motion for emergency relief; temporary orders; temporary custody.

(a)        Any person residingin this State may seek relief under this Chapter by filing a civil action or byfiling a motion in any existing action filed under Chapter 50 of the GeneralStatutes alleging acts of domestic violence against himself or herself or aminor child who resides with or is in the custody of such person. Any aggrievedparty entitled to relief under this Chapter may file a civil action and proceedpro se, without the assistance of legal counsel. The district court division ofthe General Court of Justice shall have original jurisdiction over actionsinstituted under this Chapter. Any action for a domestic violence protectiveorder requires that a summons be issued and served. The summons issued pursuantto this Chapter shall require the defendant to answer within 10 days of thedate of service. Attachments to the summons shall include the complaint, noticeof hearing, any temporary or ex parte order that has been issued, and otherpapers through the appropriate law enforcement agency where the defendant is tobe served. No court costs shall be assessed for the filing, issuance,registration, or service of a protective order or petition for a protectiveorder or witness subpoena in compliance with the Violence Against Women Act, 42U.S.C. § 3796gg‑5.

(b)        Emergency Relief. –A party may move the court for emergency relief if he or she believes there isa danger of serious and immediate injury to himself or herself or a minorchild. A hearing on a motion for emergency relief, where no ex parte order isentered, shall be held after five days' notice of the hearing to the otherparty or after five days from the date of service of process on the otherparty, whichever occurs first, provided, however, that no hearing shall berequired if the service of process is not completed on the other party. If theparty is proceeding pro se and does not request an ex parte hearing, the clerkshall set a date for hearing and issue a notice of hearing within the timeperiods provided in this subsection, and shall effect service of the summons,complaint, notice, and other papers through the appropriate law enforcementagency where the defendant is to be served.

(c)        Ex Parte Orders. – Priorto the hearing, if it clearly appears to the court from specific facts shown,that there is a danger of acts of domestic violence against the aggrieved partyor a minor child, the court may enter orders as it deems necessary to protectthe aggrieved party or minor children from those acts provided, however, that atemporary order for custody ex parte and prior to service of process and noticeshall not be entered unless the court finds that the child is exposed to asubstantial risk of physical or emotional injury or sexual abuse. If the courtfinds that the child is exposed to a substantial risk of physical or emotionalinjury or sexual abuse, upon request of the aggrieved party, the court shallconsider and may order the other party to stay away from a minor child, or toreturn a minor child to, or not remove a minor child from, the physical care ofa parent or person in loco parentis, if the court finds that the order is inthe best interest of the minor child and is necessary for the safety of theminor child. If the court determines that it is in the best interest of theminor child for the other party to have contact with the minor child orchildren, the court shall issue an order designed to protect the safety andwell‑being of the minor child and the aggrieved party. The order shallspecify the terms of contact between the other party and the minor child andmay include a specific schedule of time and location of exchange of the minorchild, supervision by a third party or supervised visitation center, and anyother conditions that will ensure both the well‑being of the minor childand the aggrieved party. Upon the issuance of an ex parte order under thissubsection, a hearing shall be held within 10 days from the date of issuance ofthe order or within seven days from the date of service of process on the otherparty, whichever occurs later. If an aggrieved party acting pro se requests exparte relief, the clerk of superior court shall schedule an ex parte hearingwith the district court division of the General Court of Justice within 72hours of the filing for said relief, or by the end of the next day on which thedistrict court is in session in the county in which the action was filed,whichever shall first occur. If the district court is not in session in saidcounty, the aggrieved party may contact the clerk of superior court in anyother county within the same judicial district who shall   schedule an ex partehearing with the district court division of the General Court of Justice by theend of the next day on which said court division is in session in that county.Upon the issuance of an ex parte order under this subsection, if the party isproceeding pro se, the Clerk shall set a date for hearing and issue a notice ofhearing within the time periods provided in this subsection, and shall effectservice of the summons, complaint, notice, order and other papers through theappropriate law enforcement agency where the defendant is to be served.

(c1)      Ex Parte Orders byAuthorized Magistrate. – The chief district court judge may authorize amagistrate or magistrates to hear any motions for emergency relief ex parte.Prior to the hearing, if the magistrate determines that at the time the partyis seeking emergency relief ex parte the district court is not in session and adistrict court judge is not and will not be available to hear the motion for aperiod of four or more hours, the motion may be heard by the magistrate. If itclearly appears to the magistrate from specific facts shown that there is adanger of acts of domestic violence against the aggrieved party or a minorchild, the magistrate may enter orders as it deems necessary to protect theaggrieved party or minor children from those acts, except that a temporaryorder for custody ex parte and prior to service of process and notice shall notbe entered unless the magistrate finds that the child is exposed to asubstantial risk of physical or emotional injury or sexual abuse. If themagistrate finds that the child is exposed to a substantial risk of physical oremotional injury or sexual abuse, upon request of the aggrieved party, themagistrate shall consider and may order the other party to stay away from aminor child, or to return a minor child to, or not remove a minor child from,the physical care of a parent or person in loco parentis, if the magistratefinds that the order is in the best interest of the minor child and isnecessary for the safety of the minor child. If the magistrate determines thatit is in the best interest of the minor child for the other party to havecontact with the minor child or children, the magistrate shall issue an orderdesigned to protect the safety and well‑being of the minor child and theaggrieved party. The order shall specify the terms of contact between the otherparty and the minor child and may include a specific schedule of time andlocation of exchange of the minor child, supervision by a third party orsupervised visitation center, and any other conditions that will ensure both thewell‑being of the minor child and the aggrieved party. An ex parte orderentered under this subsection shall expire and the magistrate shall schedule anex parte hearing before a district court judge by the end of the next day onwhich the district court is in session in the county in which the action wasfiled. Ex parte orders entered by the district court judge pursuant to thissubsection shall be entered and scheduled in accordance with subsection (c) ofthis section.

(c2)      The authoritygranted to authorized magistrates to award temporary child custody pursuant tosubsection (c1) of this section and pursuant to G.S. 50B‑3(a)(4) isgranted subject to custody rules to be established by the supervising chiefdistrict judge of each judicial district.

(d)        Pro Se Forms. – Theclerk of superior court of each county shall provide to pro se complainants allforms that are necessary or appropriate to enable them to proceed pro sepursuant to this section. The clerk shall, whenever feasible, provide a privatearea for complainants to fill out forms and make inquiries. The clerk shallprovide a supply of pro se forms to authorized magistrates who shall make theforms available to complainants seeking relief under subsection (c1) of thissection.  (1979,c. 561, s. 1; 1985, c. 113, ss. 2, 3; 1987 (Reg. Sess., 1988), c. 893, s. 2;1989, c. 461, s. 1; 1994, Ex. Sess., c. 4, s. 1; 1997‑471, s. 2; 2001‑518,s. 4; 2002‑126, s. 29A.6(a); 2004‑186, ss. 17.2, 19.1; 2009‑342,s. 2.)

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