With the landmark civil rights case Obergefell v. Hodges, the United States Supreme Court found that the fundamental right to marriage extends to individuals in same-sex relationships under the United States Constitution. This ruling has led to a ripple effect on various state laws regarding divorce, adoption, child custody and financial support matters. State laws are now under a microscope to ensure uniformity and equality of individual protections in same-sex relationships versus heterosexual relationships.
In particular, this has led to an in-depth analysis of North Carolina law protections of individuals who find themselves in domestic violence situations. Pursuant to North Carolina General Statute Section 50B-1, domestic violence encompasses physical violence, an attempt to cause physical violence, and/or placing an aggrieved party or a member of an aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment that rises to such a level as to inflict substantial emotional distress. Under this statute, a personal relationship includes the situation where the aggrieved party and the perpetrator are “current or former household members” and/or “current or former spouses” with no requirement that the parties are persons of the opposite sex (NCGS Section 50B-1(b)(1) and (5)). Under these specific provisions, persons in same-sex relationships similar to those in heterosexual relationships are able to obtain what is referred to as a Chapter 50B Domestic Violence Protective Order under North Carolina law.
A Chapter 50B Domestic Violence Protective Order (“DVPO”) is a unique legal tool and form of protection that is established by a civil claim between two individuals. Once a Court deems that a DVPO is warranted, should the defendant violate the DVPO then said person may be charged in a criminal court for a Violation of a DVPO, in contrast to other forms of civil protective orders. In certain circumstances, a suspected or reported violation can lead to the automatic arrest of the defendant without the need for a warrant or other process by the court. Rather, an officer who has probable cause to believe the defendant knowingly violated the DVPO will automatically result in the defendant’s incarceration.
However, a concern arises for same-sex couples when the partners have never been current or former household members or spouses. If they do not meet these provisions, then their same-sex relationship is not characterized as a “personal relationship” for purposes of DVPO protections. Rather, the DVPO protections are only available to “persons of the opposite sex” who are in or have been in a dating relationship ((NCGS Section 50B-1(b)(6)). Therefore, simply put, because of this provision in the law, same-sex partners do not have all the same DVPO protections as heterosexual partners under North Carolina law.
A 50B DVPO is not the only form of restraining order permitted by North Carolina law. Also available are Civil No-Contact Orders provided for under North Carolina General Statute Section 50C. A Chapter 50C Civil No-Contact Order is an available remedy to same-sex couples in specific situations per the statute; however, this type of protective order does not have the same enforcement mechanisms as a DVPO. In particular, an officer cannot automatically arrest the defendant if there is probable cause to believe there was a knowingly and willful violation, and a Civil No-Contact Order violation is not prosecuted in the criminal courts. Rather, in general, a violation of a Civil No-Contact Order violation is handled via a contempt matter in the civil courts. Because of these stark differences, enforcement of a Civil No-Contact Order can be much more difficult and take a lot more time. The time and difficulty involved with a Civil No-Contact Order results in deterrence of individuals seeking such protections.
As of today, the full extent of available domestic violence protections to same-sex relationships is not equivalent to partners in heterosexual relationships in North Carolina. If same-sex partners are married, or have lived together, they do qualify for Chapter 50B protections equal to that of heterosexual partners. If same-sex partners have not been married or lived together, they cannot seek Chapter 50B protections — however, they can seek Chapter 50C protections. In order to have a legal system that protects individuals equally regardless of relationship type from the detrimental reality of domestic violence, the North Carolina legislature and legal system has some work to do to close the gap. As we have seen in recent news, legislators across the state are working toward changing the current laws to equally protect everyone in our community.
Sodoma Law Attorney Theresa Viera practices Family Law in Charlotte, N.C. She provides litigation and counseling services in a wide variety of cases including domestic violence, child custody and support, divorce, equitable distribution and alimony. She is a member of the Mecklenburg County and North Carolina Bar Associations, and serves on the Board of Directors for Justice Initiatives.