Ex Parte Custody Rule Order by nxp55576

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									50B Cases

Cheryl Howell
April 1, 2004
Minors

 Unless emancipated, a minor in 50B
  case needs a Rule 17 guardian
 Minor plaintiff: appoint when case
  commenced
 Minor defendant: appoint before hearing
  on “final” order
 Cost of GAL?
    – Appoint parent or relative
Dating Relationship

   50B-1(b)(6)
     – “the parties are romantically involved
       over time and on a continuous basis
       during the course of the relationship”
Ex parte Relief
GS 50B-2(c)
 When it appears from facts shown that
  there is a danger of acts of domestic
  violence against party or minor child,
  court may enter order prior to hearing to
  protect the party or child
 However, no ex parte custody unless
  child is exposed to substantial risk of
  bodily injury or sexual abuse
Emergency Relief
GS 50B-2(b)
 Can move for relief if party believes
  there is danger of serious and
  immediate injury to herself/himself or
  child
 When no ex parte order, hearing on
  emergency relief must be held 5 days
  after notice or service, whichever first
  occurs (but not before service)
Standard for DVPO

   When plaintiff proves act of domestic
    violence, DVPO may be entered upon
    finding that order is “necessary to bring
    about the cessation of domestic
    violence.”
    – Brandon, 132 N.C. App. 647 (1999)
    – Bryant v. Williams (N.C. App. Dec. 3, 2003)
                  Relief
   GS 50B-3(a): “The court … may grant
    any protective order … to bring about
    the cessation of acts of domestic
    violence. The court may: …”
     – (1) through (12) items of relief ….
     – (13) “Include any additional
       prohibitions or requirements that the
       court deems necessary to protect any
       party or any minor child.”
                    Relief
   Story v. Story, 57 NCApp 509 (1982)
    – GS 50B authorizes courts to enter temporary
      orders “as may be necessary to protect
      spouse or minor child from domestic
      violence,” including possession of home,
      temporary custody and support.
   Brandon v. Brandon, 132 NCApp 647
    (1999)
    – GS 50B-3(a) authorizes the issuance of a
      protective order “to bring about cessation of
      domestic violence.”
 In personam jurisdiction

 Service of process
 “Long-arm” statute: see G.S. 1-75.4
 Due process satisfied by “minimum
  contacts”
 Does 50B require in personam or is it
  an “in rem”/status proceeding?
Long-arm Statute

 Phone calls that amount to domestic
  violence
 Maybe G.S. 1-75.4(3)?
    – Local act or omission: …any action
      claiming injury to person within this state
      arising out of an act within this State by
      defendant
    – Do phone calls from out of state amount to
      action within this state?
Due Process
   Defendant must have certain minimum
    contacts with NC such that the maintenance
    of suit does not offend “traditional notions of
    fair play and substantial justice.”
   Defendant’s conduct and connection with
    state are such that he should reasonably
    anticipate being haled into court in NC
   Minimum contacts determined by
    ascertaining what is fair and reasonable
    under the circumstances
Minimum Contacts

   Court should consider:
    – Quantity and nature of contacts
    – Relationship between contacts and cause
      of action
    – Interest of state in cause of action
    – Convenience of parties
    – Location of witnesses and evidence
Jurisdiction

 Danna v. Danna, 88 NCApp 680 (1988)
   – Whenever relief requested under 50B
     includes determination of custody or
     visitation rights, subject matter jurisdiction
     is determined by the UCCJEA. See also
     GS 50A-102(4).
 Affidavit required by GS 50A-209 with
  information about residence of child and
  parties should be submitted with pleading
 Emergency Jurisdiction
 50A-204
 Court has emergency jurisdiction when child is
  present in state and
   – Child has been abandoned , or
   – It is necessary to protect child because the
      child, or a parent or sibling, is threatened with
      abuse
 If action pending in another state, or if order has
  been entered in another state, court must
  immediately communicate with other court to
  “resolve the emergency.”
50B-3.1(a) factors
   Use or threatened use of deadly weapon by
    defendant or a pattern of conduct involving
    use or threatened use of violence with a
    firearm against persons
   Threats to seriously injure or kill plaintiff or
    child by defendant
   Threats to commit suicide by defendant, or
   Serious injury inflicted on plaintiff or child by
    defendant
50B-3 Renewal

 Can renew up to one year, even if
  previously renewed
 Motion must be filed before expiration of
  existing order
 May renew for “good cause”: no new act
  of domestic violence is required
 Order needs findings and conclusions
“Threats”

 G.S. 50B-1(a)(2): placing party or
  member of party’s family or household
  in fear of “imminent serious bodily injury
  or continued harassment…”
 Fear is subjective – Objective
  reasonableness is not required.
G.S. 50B-3.1

 Upon finding grounds, court shall order
  surrender to sheriff of “all firearms,
  machine guns, ammunition, permits to
  purchase firearms, and permits to carry
  concealed firearms…”
 In the “care, custody, possession,
  ownership or control of the defendant.”

								
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