Family Law, Domestic Violence, and Restraining Orders
The law surrounding domestic violence in North Carolina is deceptively complex. In this episode, North Carolina Attorney Bill Powers answers the questions that matter to you when you when you or a loved one is involved in a domestic violence matter, including:
What constitutes… Read More.Modified Transcript of “Family Law, Domestic Violence, and Restraining Orders” for the Hearing Impaired
Speaker 1: You're listening to Law Talk with Bill Powers, your resource for answers to your most pressing legal questions. Attorney Bill Powers sits down with some of today's leading legal minds to discuss anything from legal issues and legislation to practice tips and policy. Now, here's your host, an NBTA board certified criminal law specialist, former president of the North Carolina Advocates for Justice and renowned trial lawyer, Bill Powers.
Robert Ingalls: Hello, and welcome to another episode of Law Talk with Bill Powers. I am your guest host, Robert Ingalls for this episode and I am here once again today with Mr. Bill Powers. How are you today, Bill?
Bill Powers: I'm well.
Robert Ingalls: Alright. Today, we are going to be talking about family law, specifically domestic violence, 50B restraining orders, and the interaction that they have between criminal and civil court. So, tell us a little bit about this process, Bill.
Bill Powers: Well, it's deceptively complex, to be honest with you, and although many areas of laws have nuances or complexities or require an understanding of some very particular things, this one is almost a super area, meaning that as the case develops, the complexities develop and you have to get a handle on things very, very quickly.
There are a fair number of lawyers in the state of North Carolina, criminal defense lawyers, even lawyers in Charlotte, NC, that do criminal defense. They're criminal defense lawyers. They're Charlotte criminal defense lawyers or Monroe criminal defense lawyers. Then, there are also other lawyers who do family law issues, domestic violence attorneys, lawyers in the practice of law who help people with things like divorce and child support.
There aren't a lot of lawyers, in my experience in North Carolina, who do both or understand necessarily the interaction between criminal charges or allegations of a criminal charge for domestic violence or assault on a female or communicating threats or interference of 911 communication, coupled with a civil filing, a protective order under 50B, under the North Carolina domestic violence laws or the North Carolina civil laws. And they're both independently very complicated and it almost becomes a perfect storm for defense lawyers, and normally criminal defense lawyers are the ones that tend to handle the 50Bs. It's a perfect storm between civil law and criminal law in North Carolina.
Robert Ingalls: How does that criminal process work? What is that interaction?
Bill Powers: That's a great question, because these types of cases normally start with a criminal prosecution, meaning the victim of domestic violence goes and seeks a criminal charge or makes an allegation of criminal charges in Charlotte for an assault, assault and battery, assault on a female, communicating threats in North Carolina, something of that nature.
And as soon as they leave the magistrate's office or they've talked to the law enforcement officer, however that process started, and there are a lot of different ways, it doesn't really much matter how the charges got brought in North Carolina, it's the fact that there's a criminal charge.
Once that criminal charge is started, then there's normally a walk across the hallway or maybe to a different building that involves something like victim's assistance or filing for a protective order. In North Carolina family laws, we oftentimes refer to that as a 50B, if there's a relationship or if there are kids involved. Sometimes, it can be between stranger, a bar fight. It can be a 50C. Maybe probably less apt to be total strangers, but maybe someone you know as a coworker or something of that nature where you have 50C.
Robert Ingalls: Now, let me interject real quick. What is the difference between a 50B and a 50C?
Bill Powers: A 50B, and I'm going to speak in ... Because it's a really, really, really complex statute to read, but the simplest, most basic definition of the domestic violence laws in North Carolina, as for a 50B, it normally involves a relationship. Now, sometimes people confuse that meaning, "Well, I'm no longer dating that person." It could have been a past relationship. It could be a relationship where you have children. It could be two roommates who had no dating relationship, but they lived in the same household.
So, the statute is written in such a broad fashion to allow for the different iterations of how we live and interact with one another, so it's meant to be as broad as possible that to prevent or protect people involved in these interpersonal relationships. So, it applies to same-sex relationships just like it does people of different sexes. It applies to non-traditional relationships maybe with grandparents and their children. It's meant to cover basically any type of relationship that we have.
Now, 50C, the line of demarkation for me, the way I try to explain to clients, there isn't that same level of household type of relationship. There aren't kids involved. But, you may have a problem with somebody.
Robert Ingalls: So, would this be that situation like a bar fight?
Bill Powers: Well, it could be if there continued to be interactions. Again, it's written broadly to allow for a lot of different things. I tend to see it more often in coworker relationships or business contractual relationships where something has gone south and then they start going at each other and sending out embarrassing texts or emails, which some of these, embarrassment is a factor here, or they're going to their household, pounding on doors, saying, "I want my money."
So, I tend to think it more in everyday interactions, but there are instances where, for example, maybe you work as a server at a local restaurant and someone comes in and will not leave you alone, okay? Now, you've had no prior relationship with this person in the sense that you know, hey, that's Freddy and he comes in here, but I'm not interested in dating this person.
I had one recently where a gentleman was in a local store and saw a woman that was attractive and tried to talk to her. He said he was trying to use his ... He said, "I was trying to use my vibe with her," and she wasn't interested and she walked away and he followed her to another store and then he followed her into another store, and she became fearful that this person could be a harm to her. She filed a 50C protective order as well as a criminal charge for stalking.
So, we see them in stalking cases, too, where there's no real ... When I saw relationship, it doesn't mean that you have a ... Know a person or not know a person. There are plenty of 50Cs where you know the person, but it's not in a household or that type of traditional, if there's such a thing anymore, of a family relationship or dynamic.
Robert Ingalls: Gotcha. Now, when you're filing these things, is there any issues that a potential client might need to know regarding timing?
Bill Powers: Yes. Now, this is where there's this weird crossover between a lawyer's experience with family law versus criminal defense lawyers. If you asked that question to a criminal defense lawyer, they're going to say, "Well, I'm not responsible for the filing of these things." I do look at when they were filed relative to the charges and there has to be a service of process and they're looking at it purely as a defense measure.
Family law lawyers may sometimes help clients, especially in an abusive type of relationship, to file them. So, in addition to having your normal filing procedures for a complaint, and in fact, divorce proceedings, it's rare that you immediately just file, [inaudible 00:08:34] divorce [inaudible 00:08:34] some timing requirements. This indeed may be the first thing that triggers many of the other steps in a family law type of case.
So, there are timing issues on these things where, especially in very serious domestic violence, physical altercation cases between married parties. You will see a 50B. Then, there may be some sort of filing for a separation, temporary support, child support, which is very, very important, but the first step as a lawyer is to make sure that your client is safe. So, yes, there are timing issues.
Now, there's not the same type of timing issue as you may relate, considered like a statue of limitations, meaning it's relevant if you're being cross-examined and say, "Well, when did this happen?" And you say, "Well, we got married in 1992. She did whatever." There is an aspect of there's an eminent. Something is going to happen if the court doesn't put the protective order in place. There's an idea that this order is necessary. In fact, that's standards that we talk about, where ... And to some extent, it's compelling to the court that if I don't put this protective order and if I don't say, "You don't contact him," or, "You don't contact her," there could be a danger to that person. There could be a harm to that person. There could be additional embarrassment or mental ...
And it's just not a matter ... When I say mental, I just meant this person is irritating me. It's more than that. So, yes, there is a temporal nature. But, sometimes people don't want to talk about ... When they get married and they say, "Well, it's water under the bridge," and it may come up during the proceeding itself as to the reasonableness of the fear. But, as far as a timing issue, we tell people do it now. Get up there and do it now. If you truly are worried about your safety and your wellbeing, why would you wait?
Robert Ingalls: Now, we were talking about marriage a moment ago. What is the effect of domestic violence charges during an action for divorce?
Bill Powers: Great question, and the answer is it depends on what the divorce involves. So, for example, if you have a divorce where you have the primary spouse or the spouse that handles things financially versus the dependent spouse, meaning the spouse maybe isn't working or doesn't have the financial wherewithal to pay for where they live, it could affect who gets, at least on a temporary basis and possibly on a long-term basis, who gets the house or who gets to stay in the house, or if you have children involved, who has primary custody or who has sole custody? And there are different ranges on this spectrum of someone could be mentally abusive, and I don't like this about you, or it could be someone that's physically damaging or harming somebody to such an extent that there's long-term problems associated with it, not just with the person that they're hitting, but the kids. So, they absolutely, positively can effect.
Now, does that effect ultimately the alimony? Like, if you're a bad person, does the court necessarily give you more of the, I guess your estate, for lack of a better term, or the value of your marriage because you're bad and you need to be punished? Not really, but there are balancing factors and consideration as to the dependent spouse what they need in order to maintain their living conditions or take care of the kids. And there is a process and it's a very, very in-depth process that takes sometimes months and months and months of looking through financial records and a lot of the battle in divorce cases involves financial records and determining what the assets are and whether something was brought into the marital, as a marital property versus individual property.
Robert Ingalls: Now, you were saying it wouldn't affect alimony. How would a domestic violence situation, if at all, affect child support obligations?
Bill Powers: Right. Well, child support, as a whole, is formulaic, meaning that there's a value set generally speaking. There are guidelines that say that if this is your income and you have one child, this is the assumption that you're going to pay every month. If this is your income and you have two children, this is how much you pay each month.
Now, the judges are still given some level of discretion and they can deviate from guidelines in certain circumstances, and normally we see that in really big-ticket type of estates or family values where it exceeds the value of the guidelines, meaning you've got Bill Gates money and the guidelines don't go that high. So, there's a basic level of providing for your child. And while that is formulaic in a large measure, to some extent, pre-determined.
One of the more important issues is who has physical custody of the child, and as you might imagine, if there's a joint custody, like with one person half the time and the other person half the time, there may be some discernment in the finances involved with taking care of the child, where if you are the primary custody holder or the sole custody holder, the amount that you receive for child support, alimony, would be more, and there are always exceptions, than if it was joint as far as with whom they lived. I don't know if that makes sense.
But, child custody is not meant to be a reward to the parent. It's meant to take care of your progeny. So, it's kind of a basic premise, like if you have a child and you want to take care of your child. When a client says to me, "I'm a good person. I pay child support." I'm like those are two things that ... I'm just going to assume that you want to take care of your child, so paying child support to me doesn't mean that you win a gold star or get a plaque on the wall.
So, these types of ... The criminal aspect of a domestic violence that judges, and courts, and family members don't want kids to be subjected to that. Heck, in divorce actions, we regularly tell people do not discuss finances with your child. Do not use your child as an intermediary to say, "Tell your mom I'm not going to pay this amount this month because I paid for this book bag here." Don't discuss visitation and have, "Tell your father that I'm going to be an hour late."
If we're that granular, meaning we don't want to involve the kids in the interaction because we're dealing with developing minds and we don't want to ... It's already going to be traumatic in many instances having that separation, we certainly take consideration of the fact of are there physical assaults or assault and batteries in North Carolina? Are there criminal charges in Charlotte pending for assault maybe even on a child under the age of 12? So, yes, it can, but maybe not in a way you would traditionally think about it.
Robert Ingalls: I know every situation has its nuances, but take us through a typical situation. The phone rings. You've got one of these situations taking place. Walk us through that.
Bill Powers: Wow, that's a great question because having done, or excuse me, practiced law and done a lot of these different types of cases, in court especially, with the protective orders and the criminal aspects of that, I have a way of doing things because I think it's the best way of doing things when it comes to criminal charges in North Carolina.
So, if someone rings my office, beep-beep, "Bill, park 91, potentially a new client, family issues and a 50B coming up next week in court," well, when I pick up the phone, even how you speak to the person from the outset makes a difference, introducing yourself, telling them who you are, the first thing I tell every potential client, whether they retain us for legal services, whether our firm becomes criminal defense lawyers to them or defense lawyers as legal representation, the first thing I say to everybody is everything we talk about right now is confidential, meaning that there may be attorney-client privilege that applies.
Now, sometimes in finding out who the person is on the other line, I have to start with a precursor question. So, I say the first thing I do is talk about attorney-client privilege, but I don't really even start talking to the person until I do conflicts check. When a person gets on the phone, they want to vomit information. There are a lot of things they want to talk about with their criminal charges or there are a lot of things they want to talk about in their divorce or separation case, and I say, "Time out. Hold on, hold on, hold on. I need to make sure that I haven't either represented an opposing party on this side or do represent an opposing party because I don't want you to tell me anything that would be detrimental." So, we do a conflicts check first.
Assuming that's clear, the first thing I do then is say, "Everything we talk about is confidential," and depending on the type of case, we will oftentimes offer a free consultation. Now, this is why it gets complicated, because I have to figure out pretty early on what I am dealing with. I normally don't charge for that initial aspect of the consultation. If it's purely a criminal defense matter or allegations of criminal charges for an assault or criminal charges for assault and battery in Charlotte, that consultation is always free. We're not charging anything. Our law office provides a free consultation, free advice, free legal advice, at least on the front end.
If it seems pretty obvious that it's criminal plus, meaning, "I've got a 50B protective order hearing and I need some help. I want to get separated from this person," or, "I just got out of jail and I am separated from the person because I now have been told not to contact them." I'll talk to them initially about that, and then I'll say we probably need to have a larger conversation about legal representation and what you want our law office to do, meaning do you only want us to handle the 50B and the criminal charges, which are both criminal and civil, or are now talking about separation agreements, support agreements, child custody, visitation? Because that transitions into hourly. Normally, family law attorneys in North Carolina charge hourly rates. Criminal defense lawyers, while we can charge hourly rates for legal fees, tend to charge flat rates.
Similarly, for 50B hearings, protective orders, it can be both where the ... And this is what I tell everybody. The criminal lawyers tend to go with the idea of free consultation, everything is confidential, flat rate, and if it gets continued, same rate.
Civil lawyers, if you use one of the databases, you click a little thing on your computer and a clock starts ticking and they bill. Most lawyers bill in six-minute or ten-minute increments. So, the perspective how these things are handled are different. That's why, well, I really enjoy doing these types of cases because it's both. It's not just limited to one side or the other, which I think as part of legal representation, makes four an interesting presentation because if you fully understand how criminal courts work in North Carolina or criminal charges in North Carolina work, and if you fully understand the implications of those criminal charges to civil actions, be it 50B or the other family law divorce-related cases, you start to see the level of complexity and the number of iterations, or to use the mathematical term, the number of permutations and combinations of options.
So, how you start off on the front end, introducing yourself to the client, being personable to the client, reassuring the client is so, so important and developing parameters. I know that's ... If this were, the law were dungeons and dragons, I would be the biggest, geekiest guy that has all the die in his bag. This kind of stuff jazzes me. It's so procedurally technical and interesting and factual. It's perfect for someone who has an interest in doing multiple things in the law.
Robert Ingalls: Now, if someone has an issue like this come up, obviously it tends to be pretty serious and they need to talk to someone relatively quickly, what is the best way or what are the ways that they can contact you and consult with you?
Bill Powers: Right. That's a great question. You used a word that I don't know if you meant to use, but serious criminal charges. So, we get these questions. Is an assault a misdemeanor in North Carolina? Are assault and battery charges felony or misdemeanor charges in North Carolina? The key is the word serious because they're almost always serious when it involves a physical altercation.
What I like to tell people is before they call even and when they call is most people want to talk on the phone at least initially, and I say let's get you in here relatively quickly and I promise I will listen to your concerns. I'll have a bunch of questions to ask you, but let's meet face to face, develop that relationship, because relationship is so important in the practice of law. At least at our law office, the relationship is very important. I want to sit down with you and kind of draw ... I physically, I take a piece of paper and a pen and I draw out how the court system works, because even in criminal cases, a defendant just sees court. They see the officer. They don't realize maybe there's a DMV implication to something. They don't understand, and when you have the complexity of family law issue, I literally draw the court house and I say floor one and floor four in Charlotte criminal courts are the criminal proceedings, and floor eight or whatever the civil proceeding may be, whether it's in Charlotte or somewhere else has to do with the divorce.
Now, here's what's really interesting and it kind of makes my point. Domestic violence charges in Charlotte, allegations of a 50B violation in Charlotte or trying to get a protective order in Charlotte are done on the fourth floor, which is traditionally a criminal courtroom floor in Charlotte, as opposed to divorces which may be higher up in the courthouse.
So, that's why a lot of criminal defense lawyers handle them because they're already there on the floor. That doesn't mean tat civil lawyers can't do it, but I think the important thing is to start just reassuring the client from the outset that it's going to take some time to get through all the information and explain the system because it's so incredibly complex.
Robert Ingalls: Okay. Any last words on this issue?
Bill Powers: Talk to a lawyer, really. Trying to put the genie back in the bottle is so, so, so difficult and you can have big-time consequences financially if you just kind of willy-nilly sign off on something without ... You see a separation agreement that's filed and I didn't know I was doing that for the rest ... I'm like, "Well, you didn't limit it to temporary." There's a lot of contract. In fact, family law, there's a whole theory that family law is nothing more really than contract law versus litigation law. There are lawyers in family law in Charlotte who never, ever, ever go to court or don't want to litigate court or associate [inaudible 00:25:23] lawyers with family law issues because they don't want to litigate custody or battle over alimony where they want to do everything in a collaborative process. In fact, it's called collaborative law in family law issues in North Carolina.
Then, there are some, and I'll be honest with you, I tend to gravitate ... I'm a litigator. My experience has been to go to court, so I tend to have a comfort level going to court. So, either way, talk to a lawyer before you sign anything. Talk to a lawyer before you take any action.
I say this, I think I've said it in every podcast, so I'm going to say it again. In life, people oftentimes say don't just stand there. Do something. In law, the direct opposite is often true. Don't just do something. Stand there.
Robert Ingalls: Alright. Thank you, sir.
Bill Powers: Thank you very much.
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Law Talk with Bill Powers is an educational resource only. The information presented on this podcast does not constitute legal advice and is not a substitute for consulting with an attorney. Every situation is unique. Therefore, you should always consult with a licensed attorney before making any legal decisions. Thanks for listening.