GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

S	2 

SENATE BILL 567
House Committee Substitute Favorable 6/14/95

Short Title:  Domestic Violence Changes.	(Public)

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Sponsors:

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Referred to:

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April 3, 1995

A BILL TO BE ENTITLED
AN ACT TO MAKE CHANGES TO THE GENERAL STATUTES PERTAINING TO DOMESTIC VIOLENCE.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 50B-1 reads as rewritten:
"§ 50B-1.  Domestic violence; definition.
(a)	Domestic violence means the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the aggrieved party has or has had a familial relationship, but does not include acts of self-defense:
(1)	Attempting to cause bodily injury, or intentionally causing bodily injury; or
(2)	Placing the aggrieved party or a member of the aggrieved party's family or household in fear of imminent serious bodily injury; or
(3)	Committing any act defined in G.S. 14-27.2 through G.S. 14-27.7.
				(b)	For purposes of this section, the term 'familial relationship' means a relationship wherein the parties involved:
(1)	Are current or former spouses;
(2)	Are persons of opposite sex who live together or have lived together;
(3)	Are parents, grandparents, or others acting in loco parentis to a minor child, or children and grandchildren;
(4)	Have a child in common."
Sec. 2.  G.S. 50B-3 reads as rewritten:
"§ 50B-3.  Relief.
(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 party possession of the residence or household of the parties and exclude the other party 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 doing any or all of the following:
a.	Threatening, abusing, or following the other party,
b.	Harassing the other party, including by telephone, visiting the home or workplace, or other means, or
c.	Otherwise interfering with the other party; and
(10)	Award costs and attorney's fees to either party.
(b)	Protective orders entered or consent orders approved pursuant to this Chapter shall be for a fixed period of time not to exceed one year. Upon application of the aggrieved party, a judge may renew the original or any succeeding order for up to one additional year.  Protective orders entered or consent orders approved shall not be mutual in nature except where both parties file a claim and the court makes detailed findings of fact indicating that both parties acted as aggressors, that neither party acted primarily in self-defense, and that the right of each party to due process is preserved.
(c)	A copy of any order entered and filed under this Article shall be issued to each party. In addition, a copy of the order shall be issued to and retained by the police department of the city of the victim's residence. If the victim does not reside in a city or resides in a city with no police department, copies shall be issued to and retained by the sheriff, and the county police department, if any, of the county in which the victim resides."
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 doing any or all of the acts specified in G.S. 50B-3(a)(9), 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.  Nothing in this section shall prohibit a law-enforcement officer from securing a warrant for the arrest of a person who is subject to warrantless arrest.  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 or criminal 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.
(c)	Valid protective orders entered pursuant to this section shall be enforced by all North Carolina law-enforcement agencies without further order of the court.
(d)	Valid protective orders entered by the courts of another state or Indian tribe shall be accorded full faith and credit by the courts of North Carolina and shall be enforced by the law-enforcement agencies of North Carolina."
Sec. 4.  G.S. 1-110 reads as rewritten:
"§ 1-110.  Suit as an indigent; counsel.
Any superior or district court judge or clerk of the superior court may authorize a person to sue as an indigent in their respective courts when the person makes affidavit that he or she is unable to advance the required court costs.  The clerk of superior court shall authorize a person to sue as an indigent if the person makes the required affidavit and meets one or more of the following criteria:
(1)	Receives food stamps.
(2)	Receives Aid to Families with Dependent Children (AFDC).
(3)	Receives Supplemental Security Income (SSI).
(4)	Is represented by a legal services organization that has as its primary purpose the furnishing of legal services to indigent persons.
(5)	Is represented by private counsel working on the behalf of or under the auspices of a legal services organization under subdivision (4) of this section.
(6)	Is seeking to obtain a domestic violence protective order pursuant to G.S. 50B-2.
A superior or district court judge or clerk of superior court may authorize a person who does not meet one or more of these criteria to sue as an indigent if the person is unable to advance the required court costs.  The court to which the summons is returnable may dismiss the case and charge the court costs to the person suing as an indigent if the allegations contained in the affidavit are determined to be untrue or if the court is satisfied that the action is frivolous or malicious."
Sec. 5.  G.S. 50-13.2 reads as rewritten:
"§ 50-13.2.  Who entitled to custody; terms of custody; visitation rights of grandparents; taking child out of State.
(a)	An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child.  In making the determination, the court shall consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party and shall make findings accordingly.  An order for custody must include findings of fact which support the determination of what is in the best interest of the child.  Between the mother and father, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child. Joint custody to the parents shall be considered upon the request of either parent.
(b)	An order for custody of a minor child may grant joint custody to the parents, exclusive custody to one person, agency, organization, or institution, or grant custody to two or more persons, agencies, organizations, or institutions.  Any order for  custody shall include such terms, including visitation, as will best promote the interest and welfare of the child.  If the court finds that domestic violence has occurred, the court shall enter such orders that best protect the children and party who were the victims of domestic violence. Such orders may include a designation of time and place for the exchange of children away from the abused party, the participation of a third party, or supervised visitation. If a party is absent or relocates with or without the children because of an act of domestic violence, the absence or relocation shall not be a factor that weighs against the party in determining custody or visitation. Absent an order of the court to the contrary, each parent shall have equal access to the records of the minor child involving the health, education, and welfare of the child.
(b1)	An order for custody of a minor child may provide visitation rights for any grandparent of the child as the court, in its discretion, deems appropriate. As used in this subsection, 'grandparent' includes a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights.
(c)	An order for custody of a minor child may provide for such child to be taken outside of the State, but if the order contemplates the return of the child to this State, the judge may require the person, agency, organization or institution having custody out of this State to give bond or other security conditioned upon the return of the child to this State in accordance with the order of the court.
(d)	If, within a reasonable time, one parent fails to consent to adoption pursuant to Chapter 48 of the General Statutes or parental rights have not been terminated, the consent of the other consenting parent shall not be effective in an action for custody of the child."
Sec. 6.  This act becomes effective October 1, 1995.