GENERAL ASSEMBLY OF NORTH CAROLINA
EXTRA SESSION 1994

CHAPTER 4
HOUSE BILL 57

AN ACT TO AUTHORIZE, UNDER CERTAIN CONDITIONS, MAGISTRATES TO ISSUE DOMESTIC VIOLENCE RESTRAINING ORDERS AND TO MAKE CONFORMING CHANGES TO THE GENERAL STATUTES.

The General Assembly of North Carolina enacts:

Section 1.  G.S. 50B-2 reads as rewritten:
"§ 50B-2.  Institution of civil action; motion for emergency relief; temporary orders.
(a)	Any person residing in this State may seek relief under this Chapter by filing a civil action or by filing a motion in any existing action filed under Chapter 50 of the General Statutes alleging acts of domestic violence against himself or herself or a minor child who resides with or is in the custody of such person.  Any aggrieved party entitled to relief under this Chapter may file a civil action and proceed pro se, without the assistance of legal counsel.  The district court division of the General Court of Justice shall have original jurisdiction over actions instituted under this Chapter.
(b)	Emergency Relief. – A party may move the court for emergency relief if he or she believes there is a danger of serious and immediate injury to himself or herself or a minor child.  A hearing on a motion for emergency relief, where no ex parte order is entered, shall be held after five days' notice of the hearing to the other party or after five days from the date of service of process on the other party, whichever occurs first, provided, however, that no hearing shall be required if the service of process is not completed on the other party.  If the party is proceeding pro se and does not request an ex parte hearing, the clerk shall set a date for hearing and issue a notice of hearing within the time periods provided in this subsection, and shall effect service of the summons, complaint, notice, and other papers through the appropriate law enforcement agency where the defendant is to be served, upon payment of the required service fees.
(c)	Ex parte Orders. –  Prior to 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 party or a minor child, the court may enter such orders as it deems necessary to protect the aggrieved party or minor children from such acts provided, however, that a temporary order for custody ex parte and prior to service of process and notice shall not be entered unless the court finds that the child is exposed to a substantial risk of bodily injury or sexual abuse.  Upon the issuance of an ex parte order under this subsection, a hearing shall be held within 10 days from the date of issuance of the order or within seven days from the date of service of process on the other party, whichever occurs later. If an aggrieved party acting pro se requests ex parte relief, the Clerk of Superior Court shall schedule an ex parte hearing with the district court division of the General Court of Justice within 72 hours of the filing for said relief, or by the end of the next day on which the district 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 said county, the aggrieved party may contact the Clerk of Superior Court in any other county within the same judicial district who shall schedule an ex parte hearing with the district court division of the General Court of Justice by the end 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 is proceeding pro se, the Clerk shall set a date for hearing and issue a notice of hearing within the time periods provided in this subsection, and shall effect service of the summons, complaint, notice, order and other papers through the appropriate law enforcement agency where the defendant is to be served, upon payment of the required service fees.
(c1)	Ex parte Orders by Authorized Magistrate. – The chief district court judge may authorize a magistrate or magistrates to hear any motions for emergency relief ex parte.  Prior to the hearing, if the magistrate determines that at the time the party is seeking emergency relief ex parte the clerk of superior court is not available, the district court is not in session, and a district court judge is not and will not be available to hear the motion for a period of four or more hours, the motion may be heard by the magistrate.  If it clearly appears to the magistrate from specific facts shown that there is a danger of acts of domestic violence against the aggrieved party or a minor child, the magistrate may enter such orders as it deems necessary to protect the aggrieved party or minor children from such acts, except that a temporary order for custody ex parte and prior to service of process and notice shall not be entered unless the magistrate finds that the child is exposed to a substantial risk of bodily injury or sexual abuse.   An ex parte order entered under this subsection shall expire and the magistrate shall schedule an ex parte hearing before a district court judge within 72 hours of the filing for relief under this subsection, or by the end of the next day on which the district court is in session in the county in which the action was filed, whichever occurs first. A party who has paid court costs due for seeking an order from the magistrate under this subsection shall not be liable for court costs for a hearing before the district court judge scheduled and heard pursuant to an order entered by the magistrate under this subsection.  Ex parte orders entered by the district court judge pursuant to this subsection shall be entered and scheduled in accordance with subsection (c) of this section.
(c2)	The authority granted to authorized magistrates to award temporary child custody pursuant to subsection (c1) of this section and pursuant to G.S. 50B-3(a)(4) is granted subject to custody rules to be established by the supervising chief district judge of each judicial district.
(d)	Pro Se Forms.  The Clerk of Superior Court of each county shall provide to pro se complainants all forms which are necessary or appropriate to enable them to proceed pro se pursuant to this section.  The Clerk shall provide a supply of pro se forms to authorized magistrates who shall make the forms available to complainants seeking relief under subsection (c1) of this section."
Sec. 2.  G.S. 50B-3(a) reads as rewritten:
"(a)	The court, including magistrates as authorized under G.S. 50B-2(c1), may grant any protective order or approve any consent agreement to bring about a cessation of acts of domestic violence. The orders or agreements may:
(1)	Direct a party to refrain from such acts;
(2)	Grant to a spouse possession of the residence or household of the parties and exclude the other spouse from the residence or household;
(3)	Require a party to provide a spouse and his or her children suitable alternate housing;
(4)	Award temporary custody of minor children and establish temporary visitation rights;
(5)	Order the eviction of a party from the residence or household and assistance to the victim in returning to it;
(6)	Order either party to make payments for the support of a minor child as required by law;
(7)	Order either party to make payments for the support of a spouse as required by law;
(8)	Provide for possession of personal property of the parties;
(9)	Order a party to refrain from harassing or interfering with the other; and
(10)	Award costs and attorney's fees to either party."
Sec. 3.  G.S. 50B-4 reads as rewritten:
"§ 50B-4.  Enforcement of orders. 
(a)	A party may file a motion for contempt for violation of any order entered pursuant to this Chapter.  Said party may file and proceed with such motion pro se, using forms provided by the Clerk of Superior Court or a magistrate authorized under G.S. 50B-2(c1).  Upon the filing pro se of a motion for contempt under this subsection, the clerk, or the authorized magistrate, if the facts show clearly that there is danger of acts of domestic violence against the aggrieved party or a minor child and the motion is made at a time when the clerk is not available, shall schedule and issue notice of a show cause hearing with the district court division of the General Court of Justice at the earliest possible date pursuant to G.S. 5A-23.  The Clerk, or the magistrate in the case of notice issued by the magistrate pursuant to this subsection, shall effect service of the motion, notice, and other papers through the appropriate law enforcement agency where the defendant is to be served, upon payment of the required service fees.
(b)	A law-enforcement officer shall arrest and take a person into custody without a warrant or other process if the officer has probable cause to believe that the person has violated a court order excluding the person from the residence or household occupied by a victim of domestic violence or directing the person to refrain from harassing or interfering with the victim, and if the victim, or someone acting on the victim's behalf, presents the law-enforcement officer with a copy of the order or the officer determines that such an order exists, and can ascertain the contents thereof, through phone, radio or other communication with appropriate authorities. The person arrested shall be brought before the appropriate district court judge at the earliest time possible to show cause why he or she should not be held in civil contempt for violation of the order.  The person arrested shall be entitled to be released under the provisions of Article 26, Bail, of Chapter 15A of the General Statutes."
Sec. 4.  G.S. 7A-292 reads as rewritten:
"§ 7A-292.  Additional powers of magistrates.
In addition to the jurisdiction and powers assigned in this Chapter to the magistrate in civil and criminal actions, each magistrate has the following additional powers:
(1)	To administer oaths;
(2)	To punish for direct criminal contempt subject to the limitations contained in Chapter 5A of the General Statutes of North Carolina;
(3)	When authorized by the chief district judge, to take depositions and examinations before trial;
(4)	To issue subpoenas and capiases valid throughout the county;
(5)	To take affidavits for the verification of pleadings;
(6)	To issue writs of habeas corpus ad testificandum, as provided in G.S. 17-41;
(7)	To assign a year's allowance to the surviving spouse and a child's allowance to the children as provided in Chapter 30, Article 4, of the General Statutes;
(8)	To take acknowledgments of instruments, as provided in G.S. 47-1;
(9)	To perform the marriage ceremony, as provided in G.S. 51-1;
(10)	To take acknowledgment of a written contract or separation agreement between husband and wife; and
(12)	To assess contribution for damages or for work done on a dam, canal, or ditch, as provided in G.S. 156-15."
Sec. 5. This act becomes effective May 1, 1994 and applies to motions for emergency relief from domestic violence filed on or after that date.
In the General Assembly read three times and ratified this the 2nd day of March, 1994.

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Dennis A. Wicker
President of the Senate

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Daniel Blue, Jr.
Speaker of the House of Representatives