NCJ Number
113117
Journal
North Carolina Central Law Journal Volume: 17 Issue: 1 Dated: (1988) Pages: 82-99
Date Published
1988
Length
18 pages
Annotation
Criminal sanctions for assault against an abusive spouse have generally not been pursued because of a reluctance by law enforcement officials to enter into the domestic domain.
Abstract
North Carolina responded to this problem by enacting the Domestic Violence Act in 1979. Under the Act, a woman may motion the district attorney for emergency relief if she believes there is an imminent danger of serious bodily injury to herself or her minor children. Emergency relief includes temporary protective orders prohibiting the alleged abuser's entry into the home and awarding child custody to the complainant for up to 10 days before a hearing. Such ex parte orders deprive alleged abusers of significant liberty and property interests. The one-sided nature of any procedure granting emergency relief merely on allegation raises procedural due process questions. There is no clear evidentiary standard for granting or denying a petition for emergency relief, leaving the Act open to a vagueness attack on constitutional grounds. A probable cause standard for the ex parte hearing is recommended, either through legislative amendment or judicial development. The State legislators should amend the law to provide stricter and clearer guidelines for judges and attorneys, and appellate courts should develop clear constitutional standards for trial courts to apply. 106 references.