Thank you to Scharff Law Firm for updating the below content with North Carolina information.

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13.1 – Overview

Displacement during and after a natural disaster can cause unique legal issues in the family law context. In addition to issues regarding custody, visitation, and child support, incidents of domestic and sexual violence increase after natural disasters, according to a 2015 global study by the International Federation of Red Cross and Red Crescent Societies. Researchers attribute this increase to a combination of loss of family members and homes, scarcity of basic resources, displacement, increased stress, and marital conflict. In addition, the lack of security in temporary disaster-relief shelters increases sexual violence towards women and young girls.

This chapter is designed to provide some guidance for attorneys facing family law issues related to a natural disaster.

13.2 – Most Common Issues/Questions

What do I do if I lost the physical copy of my protective order in the disaster and it is not in the police database?

I had to relocate to a different state following a disaster. Is my protective order still enforceable?

How can I make sure my abuser doesn’t find me in a disaster-relief shelter?

I have been sexually assaulted in a disaster-relief shelter. What can I do?

I am the child’s grandparent, but I do not have custody. Can I still enroll my grandchild in school and obtain medical care?

I had to evacuate my home. Where do I go to modify my child’s custody or support order?

What if my child’s other parent refuses to pay child support after the disaster?

During the disaster my child’s other parent evacuated with my child and will not give him or her back. What do I do?

13.3 – Summary of the Law

13.3.1 – Domestic Violence

One common way to combat domestic violence is by obtaining a domestic violence protective order (a “DVPO”) from a court. A DVPO is a civil restraining order issued under Chapter 50B of the North Carolina General Statutes. It is designed specifically for victims of domestic violence to give them broad protection from the person who is hurting them. It is different from a general restraining order because it allows a judge to order more specific forms of protection. In addition to ordering the defendant to have no contact with the protected party and cease acts of domestic violence, a DVPO may also establish temporary custody of a child, temporary possession of property, and require the defendant to vacate the residence (See N.C.G.S. § 50B-3 for a full list of what a court may include in a DVPO). Further, and importantly, it grants law enforcement the power to enforce the order by charging the defendant criminally upon a violation (N.C.G.S. § 50B-4.1).

An aggrieved party may file an application for a DVPO to protect not only the applicant, but also a minor child residing with, or in the custody of the aggrieved party (N.C.G.S. § 50B-1(a)). An aggrieved party must reside in North Carolina to file an initial DVPO action (N.C.G.S. § 50B-2(a)). The 50B statute does not designate the proper venue to file the action. Therefore, proper venue is a provided in N.C.G.S. § 1-82. Nevertheless, venue, the county in which a civil proceeding is prosecuted, is not a jurisdictional issue. Further, only the defendant can raise “improper venue” as an issue, and any objection to venue is waived if not specifically raised in a timely manner by a defendant (See Chillari v. Chillari, 159 NC App 670 (2003)). Therefore, neither judges nor clerks can prevent a plaintiff from filing a DVPO action in the county of their choosing. (See https://civil.sog.unc.edu/no-sua-sponte-change-of-venue-allowed/ for further reading).

In order to qualify for a DVPO, a plaintiff must: (1) have a personal relationship with the defendant as defined in N.C.G.S. § 50B-1(b); and (2) have experienced an act of domestic violence as defined by N.C.G.S. § 50B-1(a). Due to the danger of acts of domestic violence against victims, a plaintiff may request a temporary Ex Parte order (N.C.G.S. § 50B-2(c)). If an Ex Parte temporary order is granted, the plaintiff will be given a date within 10 days to return to court to be heard on a request for a final order. The defendant must be served with the DVPO for it to be in effect and must have notice and opportunity to appear at the return hearing.

The duration of an initial DVPO is up to one year (N.C.G.S. § 50B-3(b)). A protected party can file a motion to renew the DVPO before it expires. The court may renew a DVPO for a term of up to two years (N.C.G.S. § 50B-3(b)).

A violation of a DVPO is a criminal offense under N.C.G.S. § 50B-4.1. A protected party also has the option of pursuing a motion for contempt in lieu of criminal charges (N.C.G.S. § 50B-4(a)). “A valid protective order entered by the courts of another state or the courts of an Indian tribe shall be accorded full faith and credit by the courts of North Carolina whether or not the order has been registered and shall be enforced by the courts and the law enforcement agencies of North Carolina as if it were an order issued by a North Carolina court” (N.C.G.S. § 50B-4(d)).

13.3.2 – Child Custody

A North Carolina court has jurisdiction to make an initial child custody determination under N.C. Gen Stat. § 50A if: (1) North Carolina is the home state of the child (or was the home state within the six months before the proceeding and the parent still lives in North Carolina); (2) a court of another state does not have jurisdiction, or the home state of the child has declined to exercise jurisdiction; or (3) any other state having jurisdiction has declined to exercise it because a North Carolina court would be the more appropriate forum (N.C. Gen. Stat. 50A-207 or N.C. Gen. Stat. 50A-208); or (4) no court in any other state would have jurisdiction under the criteria specified in subdivision (1), (2) or (3). A North Carolina court can also have temporary emergency jurisdiction if the child is present in North Carolina and has been abandoned or it is necessary in an emergency to protect the child because the child, or a parent or sibling, is threatened with abuse (N.C. Gen. Stat. § 50A-204(A)).

Once a Custody or Child Support Order has been entered by a district court in North Carolina, that county retains control over your case and any modifications must be made by a judge (or your judge depending on the county format of assigning cases) in that county (N.C. Gen. Stat. §§ 50A-202, 52C-2-205). While it is possible to have a case moved from one county to another (through a motion to change venue under N.C. Gen. Stat. §§ 1-82, 1-83, 50-13.5(f)), that process must typically be done in the county where your case originated.

13.4 – Frequently Asked Questions

13.4.1 – Domestic Violence/Sexual Assault

Q 13.1 What do I do if I lost the physical copy of my protective order in a disaster and it is not in the police database?

You can obtain free, certified copies of your protective order by contacting the clerk of court in the county that issued your order. You can find a list of county court directories using the North Carolina Administrative Office of the Courts website (https://www.nccourts.gov/locations).

However, by law, a copy of your DVPO should have been entered into a national database by the Sheriff’s department in the county which you obtained the order (N.C.G.S. § 50B-3(d)). In addition, when the order was entered, the clerk of court also should have issued a copy to the police department of the city where you resided at the time, and that police department is required to retain a copy (N.C.G.S. § 50B-3(c)). If you did not reside in a city or you resided in a city with no police department, copies were issued to and retained by the sheriff, and the county police department, if any, of the county where you resided at the time the order was issued. If the defendant was ordered to stay away from your child’s school, a copy of the order should also have been delivered promptly by the sheriff to the principal or, in the principal’s absence, the assistant principal or the principal’s designee, of each school named in the order.

If you find out that the court clerk did not forward the protective order to law enforcement, you should ask them to do so immediately.

Your protective order is still enforceable even if never filed in the law enforcement information system. If you believe your protective order is being violated, you have the option of calling 911 in an emergency, or going directly to a local police station in a non-emergency. In North Carolina, a police officer must arrest the violator if the police officer has probable cause to believe that the offender violated certain provisions of the DVPO including coming to your residence, harassing or threatening you, or otherwise interfering with you (N.C.G.S. § 50B-4.1(b)). In addition, the officer has the ability to make a warrantless arrest, meaning they can arrest the offender immediately without having to first go to the magistrate’s office. N.C.G.S. § 50B-4.1(b). When the police officer has probable cause that the offender violated other provisions of the DVPO not requiring mandatory arrest, they still have the discretion to arrest the offender and may make a warrantless arrest (N.C.G.S. § 15A-401(b)(2)).

If you are interested in pursuing criminal charges, it is typically ideal to report a violation to law enforcement. However, if for whatever reason you would prefer to not interact with law enforcement, or if law enforcement declines to arrest the offender, then you can also report violations directly to a magistrate. The magistrate would then review the evidence and determine if there is probable cause to issue a criminal charge against the defendant.

Alternatively, a motion for enforcement of the DVPO can be filed with the court that initially issued the DVPO. The court has the authority to hold the protective order violator in contempt (N.C.G.S. § 50B-4(a)). However, a defendant cannot be held both in contempt of court and convicted of a criminal violation of a DVPO based on the same behavior. This violates the double jeopardy clause. Therefore, you will likely need to choose at the outset which method you want to pursue to hold the offender accountable.

Further, if you relocated to North Carolina after a disaster and have a protective order that was issued by a court in a different state, it is still enforceable. North Carolina does not require you to have a certified copy of the protective order, nor for it to be “registered” in North Carolina, for it to be enforced (N.C.G.S. § 50B-4(d)). Rather an officer will look at the face of the order and statements made by you about it in order to help determine if it appears valid.

Although not required, it is good practice to keep multiple copies of the protective order, including an electronic version stored on your phone or email. If your protective order has been violated, regardless of where the violation occurred or what state you reside in, you can call the police immediately.

Q 13.2 – I had to relocate to a different state following a disaster. Is my protective order still enforceable?

Likely yes. The Violence Against Women Act (“VAWA”) states that a foreign protective order that meets federal requirements “shall be accorded full faith and credit by the court of another State . . . and enforced as if it were the order of the enforcing State” (18 U.S.C. § 2265(a)). A protective order meets federal requirements if: (1) the issuing court had jurisdiction over the parties and matter; and (2) reasonable notice and opportunity to be heard was given to the respondent (Id. § 2265(b)).

Further, you generally do not need to register or file the protective order in the new state for it to be enforceable (Id. § 2265(d)(2)). However, some states do have specific rules regarding registration and filing of protective orders, which may make enforcement easier. Consult an attorney or the laws of the state you relocate to in order to make sure your order is valid.

If you have relocated to North Carolina, your protective order from another state will be enforced by law enforcement and the courts, just as a North Carolina order would be, if the order is valid on its face (N.C.G.S. § 50B-4(d)). Even if your protective order from another state includes provisions which would not be included in a North Carolina order, or is valid for longer than a North Carolina order would be, a responding officer must enforce the terms and conditions as written. Any court order of protection should be presumed valid if it includes: (1) the names of both the protected individual and respondent; (2) the date it was issued; which is prior to the date enforcement is being sought; (3) an expiration date that has not passed; (4) the name of the issuing court; (5) a signature by or on behalf of a judicial officer; and (6) the order specifies the terms and conditions against the abuser (Protecting Victims of Domestic Violence: A Law Enforcement Officer’s Guide to Enforcing Orders of Protection Nationwide). Under North Carolina law, a law enforcement officer will enforce a protective order that appears valid on its face when there is probable cause that a protective order exists and it has been violated (N.C.G.S. § § 50B-4(d); 50B-4.1(b)). You do not need to register or file your protective order in North Carolina in order for it to be enforced.

Q 13.3 – How can I make sure my abuser doesn’t find me in a disaster-relief shelter?

North Carolina has a program called the Address Confidentiality Program (“ACP”). The ACP is administered by the Office of the Attorney General. This program works by providing a post office box address for participants as a way to increase the safety of domestic violence victims. Participants can use this address in place of an actual residential, business, or school address, and it can be used as the main address for driver’s licenses, school registration, and for most court and government documents. For more information on the program and how to apply, victims can visit https://www.ncdoj.gov/getdoc/b79396e1-a111-4084-b0e5-7912ad7b0a67/ACP-brochure-7-27-2017.aspx or contact their local domestic violence crisis agency and ask to speak to an application assistant. They can determine their local crisis agency using this website: https://nccadv.org/get-help.

Q 13.4 – I have been sexually assaulted in a disaster-relief shelter. What can I do?

If you have been sexually assaulted, your sense of safety is the first priority. What makes people feel safe differs widely from one victim to another. We highly recommend you consider calling a free, confidential sexual assault crisis line to talk with them in depth about your options. You can contact the national crisis line, at 1-800-656-HOPE or by going to their website and chatting live online (https://www.rainn.org/about-national-sexual-assault-telephone-hotline). You can also find and contact your local sexual assault crisis agency by going here: http://www.nccasa.org/cms/need-help/nc-rape-crisis-centers.

If you think you may want to report to law enforcement, you should consider doing this as soon as possible. In order to build a stronger criminal case, law enforcement typically wants to try to interview you and collect evidence as soon as possible after a crime has occurred. Some law enforcement agencies will also accept anonymous or “blind reports” which allow a victim to report a sexual assault without giving their personal identifying information. You can ask about this possibility if you are unsure about whether you want to fully report or proceed with charges but want the assault documented for the future.

You should also consider getting medical attention as quickly as possible. You can go to a local hospital and report that you were sexually assaulted. You can tell the medical personnel whether you want them to call the police or whether you want it to stay between you and your medical providers. You can receive medical care even if you do not want to report the assault to the police. Medical personnel can treat your injuries and test you for sexually transmitted infections and pregnancy (if relevant). Some hospitals employ Sexual Assault Nurse Examiners who receive special training on working with sexual assault victims and collecting evidence of the crime in addition to treating injuries. If you choose to have a forensic medical exam performed, it is free (N.C.G.S. § 143B-1200). Expenses beyond those covered by the forensic medical exam may be submitted to the NC Crime Victim’s Compensation for possible reimbursement (N.C.G.S. § 143B-1200(f)).

In addition to or instead of possible criminal charges, you also have the option of filing for an order of protection against the person who assaulted you. Depending on your relationship to this person, you may be eligible for either a Domestic Violence Protective Order (“DVPO” or “50B”) (if you have a qualifying personal relationship with them) or a Civil No Contact Order (“50C”) (N.C.G.S. § 50B; N.C.G.S. § 50C). If the you choose to file a 50C Civil No Contact Order, you may file in any county permitted under G.S. 1-82 or where the unlawful conduct took place. Often there are advocates at the local sexual assault crisis center who can assist you in understanding the forms and process in filing for a protective order.

If this person is in the same shelter that you are currently seeking temporary shelter, you may also want to inform a shelter manager to see if they will respond and ask the person to leave, or you may want to seek shelter elsewhere in order to not still be in space with your attacker.

13.4.2 – Child Custody

Q 13.5– I am the child’s grandparent, but I do not have a court order for custody. Can I still enroll my grandchild in school and obtain medical care?

Yes. Under North Carolina law, a grandparent who physically has custody of a child can initiate a lawsuit for custody if a prior lawsuit has not been filed and there is not a court order in place (N.C. Gen. Stat. §§ 50-13.1, 50-13.2). If there is a prior lawsuit and court order, a grandparent with custody who is in need of an order would need to file a motion to intervene in that action (N.C. Gen. Stat. § 50-13.5(e)).

However, if a grandparent simply has custody of a child on a temporary basis – for example if a child will stay with their grandparent while a parent is deployed for military service or dealing with ramifications of a natural disaster – a grandparent can obtain decision-making authority and legal control over a child by means of a power of attorney. A power of attorney is a legal document that is completed and signed by a parent transferring their parental control of a child to the person designated by the document. The power of attorney can then be filed with the Register of Deeds in your local county and copies can be given to school districts for enrollment and medical providers to authorize treatment. The power of attorney can then be revoked by the parent in writing and the revocation would also need to be filed with the Register of Deeds where the original power of attorney was filed.

It is also advisable to check with local contacts and authorities in your specific county as some counties in North Carolina will allow enrollment based on parental consent without the power of attorney (although one would still likely be needed for any medical care). Additionally, and especially in times of disaster, some judges will entertain and enter an ex parte emergency custody order allowing a grandparent to enroll a child in school or obtain urgent medical treatment without having to go through the entire custody litigation process first (N.C. Gen. Stat. § 50-13.5(d)(3)). Local attorneys who are specifically aware of the school district requirements and options through the court system can be contacted to discuss specific cases.

Q 13.6 – I had to evacuate my home. Where do I go to modify my child’s custody or support order?

Once a Custody or Child Support Order has been entered by a district court in North Carolina, that county retains control over your case and any modifications must be made by a judge (or your judge depending on the county format of assigning cases) in that county (N.C. Gen. Stat. §§ 50A-202, 52C-2-205). While it is possible to have a case moved from one county to another (through a motion to change venue under N.C. Gen. Stat. §§ 1-82, 1-83, 50-13.5(f)), that process must typically be done in the county where your case originated.

One additional consideration is that if your child support order was entered through Child Support Enforcement and needs modification, you may want to try contacting the child support enforcement office in the county where you are located to see if they can work with the child support enforcement office in your original county to handle everything remotely and collectively. There is no guarantee that is possible in every case but this is a potential option worth looking into.

Q 13.7 – What if my child’s other parent refuses to pay child support after the disaster?

A child support order can be modified upon a change of circumstances (N.C. Gen. Stat. § 50-13.7). The standard for modification is a substantial change of circumstances which is usually related to the income of a party or the custodial arrangement for the child. However, a party cannot unilaterally cease paying child support until their request for modification is granted by the court that entered the child support order and all parties must abide by the terms of the order even if a change has occurred until the judge modifies the order.

If the child’s parent is not paying child support in accordance with a child support order that has been entered by a judge, that parent is potentially in contempt for violations of that order. The mechanism to bring a potential violation before the court is for the party who is not receiving child support to file either a motion for an order to show cause or a motion for contempt. At a subsequent hearing on the motion(s), if the non-paying party is found to have violated the order, there can be severe sanctions placed against them including potential jail time for contempt of court. If your child support order was established through child support enforcement, you can contact your caseworker regarding initiating contempt proceedings.

Q 13.8 – During the disaster my child’s other parent evacuated with my child and will not give him or her back. What do I do?

In the event that the child’s other parent refuses to return a child to your care but you do not have a court order in place, you would need to file a custody lawsuit in the county where you reside or where the child resides requesting that the court enter a custody order (N.C. Gen. Stat. §§ 50-13.1, 50-13.2, 50-13.5(f)). If there is a risk of substantial bodily harm to the minor child, risk of sexual abuse of the minor child, or that the other party is trying to leave the state and flee the jurisdiction of North Carolina, you may also have the option of filing a motion and request for emergency custody under N.C. Gen. Stat. § 50-13.5(d)(3). An attorney in your area will know the judges who would decide your emergency motion and can specifically advise you on the likelihood that your circumstances would rise to the level necessitated an emergency order from your judge.

In the event that the child’s other parent refuses to return a child to your care and you have a court order in place, that other parent is potentially in contempt for violations of that order. The mechanism to bring a potential violation before the court is for the party to file either a motion for an order to show cause or a motion for contempt. At a subsequent hearing on the motion(s), if the non-paying party is found to have violated the order, there can be severe sanctions placed against them including potential jail time for contempt of court. However, this mechanism can take some time depending on the crowdedness of your court calendar. If there is a risk of substantial bodily harm to the minor child, risk of sexual abuse of the minor child, or that the other party is trying to leave the state and flee the jurisdiction of North Carolina, you may also have the option of filing a motion and request for emergency custody under N.C. Gen. Stat. § 50-13.5(d)(3). An attorney in your area will know the judges who would decide your emergency motion and can specifically advise you on the likelihood that your circumstances would rise to the level necessitated an emergency order from your judge.

 

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