Attorneys Jessica S. Bullock, Taylor D. Clay and Adam D. Furr

Exceptional Advocacy From Three Board-Certified Family Law Attorneys

Who Can File a Domestic Violence Restraining Order in N.C.?

On Behalf of | Dec 22, 2023 | Family Law

By: Jessica S. Bullock, Board Certified Family Law Specialist

In North Carolina, a District Court Judge has the authority to grant two types of civil remedies for domestic violence, ex-parte domestic violence protective orders and “permanent” domestic violence protective orders. The Guilford County courthouse, located in downtown Greensboro, has a courtroom dedicated to hearing domestic violence cases three days each week.  This unfortunately speaks volumes to the domestic violence epidemic in Greensboro, the Triad and all throughout North Carolina.  As a firm handling family law matters, we often find ourselves in that courtroom either representing a client who fears for their safety or the safety of their family, or defending against a domestic violence complaint inappropriately filed.

So, just who can you file a 50B against?  Your boyfriend or girlfriend? Your neighbor? Your parent?

In order for the Court to enter a 50B, a Judge must find that an act of domestic violence has occurred and that the parties were in a personal relationship at or prior to the time the act of domestic violence occurred.

Under the plain language of North Carolina’s domestic violence statute, the term “personal 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 related as parents and children, including others acting in loco parentis to a minor child, or as grandparents and grandchildren. For purposes of this subdivision, an aggrieved party may not obtain an order of protection against a child or grandchild under the age of 16;

(4)  Have a child in common;

(5)  Are current or former household members; or

(6)  Are persons of the opposite sex who are in a dating relationship or have been in a dating relationship.

N.C.G.S. 50B-1. The language of North Carolina’s Chapter 50B statute specifically excludes those in same-sex relationships, specifying “opposing sex”.

However, then came M.E. v. T.J. 380 N.C. 539, 868 S.E.2d 624 (N.C. 2022).  This case involved two females who were in a dating relationship, but never lived together.  When Plaintiff decided to end the relationship, Defendant did not take the break-up well, resulting in Defendant committing several acts of domestic violence.  The Plaintiff went to the courthouse and filled out the forms to apply for a 50B but was denied her ex parte order essentially because she wasn’t in relationship with a male.  She was then sent to fill out a Complaint for a 50C Order (another type of civil restraining order, with different parameters and protections) and was granted an ex parte 50C order. At the return hearing, the trial court found that “had the parties been of the opposite genders, those facts would have supported the entry of a DVPO.” Plaintiff appealed the denial of her 50B order to the North Carolina Court of Appeals.

On appeal, Plaintiff argued that the trial court’s denial of the 50B Order violated her “constitutional rights protected by the Due Process and Equal Protective Clauses of the Fourteenth Amendment, as well as the associated provisions of the North Carolina Constitution.”  Under the Obergefell case, a U.S. Supreme Court case, two consenting adults have a fundamental right to marry each other absent fraud impacting a legitimate government interest. Obergefell v. Hodges, 576 U.S. 644 (2015). So, why would North Carolina laws not protect those involved in same sex relationships from domestic violence?  After a very lengthy constitutional analysis, the Court held that the requirement of the North Carolina Domestic Violence Statute to be dating partners of the opposite sex was unconstitutional.

Bottom Line: The trial court shall now apply the statute as stating: “Are persons who are in a dating relationship or have been in a dating relationship” removing the requirement of opposite sex.