Subscribe
Share
Share
Embed
We talk about the recent court decision that came out of the North Carolina Court of Appeals that we are all a little embarrassed that it took us until the 2020s to make it happen.
Your no bullsh$t guide to divorce with experienced attorneys from New Direction Family Law and guests and professionals who have been there. Unfiltered discussions to help you move from victim to victorious and from bitter to better.
Elizabeth: [00:00:00] Hi everyone. It's Elizabeth Stephenson
Sarah: and I am Sarah Henke. Thank you for joining us today. Our topic is about a recent court decision that came out of North Carolina court of appeals. And that might sound a little boring to you, but it actually has a big effect on a lot of people in our state
Elizabeth: it as and it just came down and it and I'm quite frankly glad it came down, but I'm a little embarrassed that it took us to 2020 to make this happen.
So give us a little background. Sarah about what the case is about and the rule that they satisfied.
Sarah: First of all, talk about just in general, what a domestic violence protective order is. Cause that's what this is talking about. Basically it's an order of protection. You have to allege certain relationship [00:01:00] statuses to have standing to really move for this under our current statues.
But by. The legislators, because first of all, legislators could have changed this a long time ago, but they want it to but currently because they still haven't updated the statute you have to show that you are spouses to get a domestic violence protective order or former spouses. That's your persons of the opposite sex who are not married, but had lived together or do you live together that you have a child in common or a parent and child or grandparent grandchild relationship?
Or current and former household members or persons of the opposite sex who have been, or are in a relationship. So those words, opposite sex are in our statute and when it comes to
Elizabeth: domestic law, and there's the other statute date in this case also points out as it's a 50 C, which is a civil, no contact order.
Which people who are could be of the same sex, but in a relationship or not can get one of those, but you cannot, you could not, before this case came down, [00:02:00] if you were in a same-sex relationship, seek a domestic violence protective
Sarah: order, and you would, if you live together, then you could just because of the household.
Prong there, but a lot of times you're in a relationship and you don't live together. And that does not mean that there's not violence. And there's a difference between the domestic violence protective order and what it gives to you as a form of protection in a 50, see no contact. And it's also different as to what you need to show to get a 50 C.
As opposed to a 50 B. So the 50 C is the no-contact 50 B is the domestic violence protective order. So in actually until this, I didn't know this, but until this case came down, we were the only state in the country that did not provide equal protection to people who were of the same sex in a relationship as opposed to heterosexuals that are in a same-sex or I'm sorry, that wouldn't make any sense.
Yeah. But that's just, that's astounding. That's how far back our state is. And it's not just in this one particular area, but this is what we're going to talk about. Yeah.
Elizabeth: And I pulled the case it's [00:03:00] that, and you can go online and get this it's a hundred page case, and it's a lot of constitutional law, which I told you.
Everyone when we started that, I probably got a D in that in law school. I'm not sure I'll go first. I am. But what it says was in this case, based on her allegations, plaintiff, after having been physically assaulted, having been accosted on her property, having had the sanctity of her home invaded and having been harassed was seeking protections to States, could afford solely to a single class of people.
One comprised of those whose personal identity includes romantic attractions to people of the opposite sex. So basically before this case came down, if someone was beating the crap out of you and you were in a same-sex relationship, the state could not afford you any protection under a 50 B. Correct.
Sarah: And the court. At the trial court level. So this is when the plaintiff, the person asking for the protective order went to the domestic violence court in the white County actually, and asked for this. And the judge said[00:04:00] these facts are agregious. This is awful. What happened? And where had you been in a Opposite sex relationship.
You would get a protective order, but since you are not, I cannot find that domestic violence occurred because of the statute does not afford that to you. So that happened. And then that was appealed to the court of appeals, which is where we got our recent order from thankfully. And it was a two to one decision.
And the. The people, the two judges that were the ones who struck this down as being unconstitutional, they were the two Democrats on the bench, which doesn't always matter, but they actually relied heavily on a recent case from the Supreme court, which actually the it's the bus stop Clayton County case.
And the majority of opinion was written by actual Trump appointee, Gorsuch. So he is the one that wrote that opinion and said, no, this needs to be broadened the scope of the protections for the LGBTQ. People being discriminated against and basically the conclusion there and in that holding, and also [00:05:00] here in our court of appeals holding, is that discrimination based on person's homosexuality or transgender status is always discrimination based on sex or gender.
So it's unconstitutional that. We don't afford the protection to same-sex relationships.
Elizabeth: Another us case was decided in this case, it's plaintiff has the right to Liberty to pursue her own concept of existence and other mysteries of human life with the same autonomy, dignity and security as any other person in her situation.
The state sanctioned emesis toward her adopting the reason analysis of the court. We hold that it's great authority to assign laws, to fit the conception of a sound policy, which means that's a fundamental right to security is not a fundamental right to be in a same-sex relationship. That's not what this is about.
It's that every person has the right to feel safe. And that's what this is.
Sarah: Yes. In our statute currently, as it is written, is. Not doing that and is unconstitutional and it discriminates on people based on sex or, they're trans or just status or [00:06:00] sexual status. And hopefully that means our legislator is going to rewrite that statute.
That would be in that, that just, like I said, we're the only state that has that. Currently on the books. Correct. And we is your legislatures that you vote for are really important at the state level. Don't just look to presidential elections and the big ones, whoever represents you and our state Congress is huge in getting these kinds of laws off the books updated.
I know we talked about some other outdated laws on our books, but this was a huge one. And even though the court of appeals have made this opinion and we can argue it in court. Should we represent someone that's in a same-sex relationship that they should have a protective order for them. It's still not updated.
And I know I pulled the most recent. Form for the complaint motion for the domestic violence relation or protective order, and you listening at home with no, not looking at it, but there's little check boxes for the relationships that you need to meet in order to meet the standard to, to ask for one.
And it's still not updated. It's still the one from 2012. So I look in the future [00:07:00] for hopefully the complaint that you fill out to be updated with a checkbox, for people who are in same-sex relationships that need a productive order and for our statutes to be amended, revised, and updated. So keep your eyes out on that.
Elizabeth: [00:08:00] I think it's a good point to make clients get upset with us when they don't get the outcome that they want. And it was like, I was just having a recently had a meeting with a new client and there are some issues about things that happen affairs had happened. And all we have to do is divide property.
And he, it was hard for him to wrap his head around that her misbehavior doesn't get, let him keep his stock options. And so you're, and what I told him was, if you're looking for justice here, it's, you're not gonna. Find it, and so if you go to court and the court doesn't give you a 50 B it's because they, sometimes I just can't because, and allow them to do
Sarah: certain things.
And that's exactly what happened here. And the judge or whoever drafted the dismissal, it did a good job laying out exactly why this was not. Gonna be awarded to them and that their problems. And if I could have worked this and [00:09:00] put this protective order in place, I would because all these awful things happened and it's scary.
And this person is asking for a civil protective order. I don't have a lot of faith in that if they went to maybe law enforcement, that they would be treated fairly there either. They, you have two different options too. Make a report to obviously law enforcement, the magistrate asked for criminal charges to be put in place.
That's not easy to do. You don't get an attorney to help you walk you through that. A lot of times, right? In the civil cases, we can represent you in at least get a civil protective order. And if that's violated, then there will be criminal,
Elizabeth: right? So somebody is in abusive relationships here. What are some resources or options for them?
Sarah: No, first and foremost, we always say, if you can reach out to interact, which is an amazing organization in wake County. And if you're not in wake County, look for something similar, that is a organization that helps for victims of domestic violence. They help in so many ways, even as just counseling, like you're not ready to leave.
You don't want to leave. You just need to go [00:10:00] talk to someone. It's always good to do that because if you get to the point where you do want to leave, or if you're in litigation, there will be a record of you going there and making that complaint. So people they'll believe you too. Cause I know we talk about.
This whole people don't take victims seriously. And how, why would I believe them that this is happening or husband is a doctor and a doctor would never abuse her like that. That's true. I
Elizabeth: had a, there was a case and both of them were PhD's and the other attorney said to me that couldn't possibly have happened because they're both.
Doctorate. And they were professors that could not happen ma'am yes, it can. And it does happen. It
Sarah: does have, I don't know what I barely glimpse this in the news, but apparently like a doctor was shot by another doctor down in Texas. Domestic violence is rampant in all areas of status, income everywhere.
So if you. Make a trail. I know it's hard to leave and we can go on and on about the cycle of abuse and where you can be controlled financially, verbally, physically. There's so many different [00:11:00] areas of abuse. And it's scary to reach out. And some people, people put trackers on your car and that's not okay.
You can get a domestic violence order. If someone is putting a tracker on your car in a way to harass you and track you and abusing that way. So it's not okay. And if that happens, talk to a friend, talk to a loved one that you can trust and make a plan. When you run a talk to an attorney and make that plan to get out of that relationship.
Elizabeth: And we can help you do that or reach out to interact or any other. Nonprofit or an agency that can help you in that way, but you need support to reach
Sarah: out. Yes, exactly. And there's victims, advocates through interact and through the court system, if there's criminal charges, you can have a victims advocate where to, to you to help you and hold your hand through this process.
Cause it is scary, right? If you have to go to court to testify against your abuser, and I've never had to do that, obviously I've done it, as an attorney stood next to someone, but that's. An amazing strength you have to have, and it's okay to be scared about doing that, [00:12:00] but there's people out there who are going to help you.
That's true. And now they're going to help you whether yeah, no, you're in a heterosexual relationship or is essential.
Elizabeth: Absolutely. Yeah. So good for my state. And finally so happy when you come and do the work to do to the 19th.
Sarah: You may be dead. I just have a quick question. I don't know for clarity or just, I don't know, random question, but, so I know you're saying that those amendments starting to be made to the document that you're mentioning the complaint for domestic violence now for wake County.
So what if let's say we get a call from, for someone in a same-sex marriage or relationship and they're seeking services. What does that look like for court? For them now, since documents haven't been updated, but. This ruling has come out. So is it like an immediate trickle down? Oh, it's still, I haven't had to do that yet.
And I was talking to fizzy, one of our paralegals in the office about this, the forms still the same, and it's not even a wake County form. This is a state form. So this is what's used in every County. And what do you do? Draw an extra little [00:13:00] box. I know in this case that she had checked Are persons of opposite sex who have been in a dating relationship, but when the judge was hearing her testimony, Oh, it's actually a same-sex relationship.
You and your girlfriend. And that's one of the reasons that it was dismissed and denied. So I don't know, you try for it. I go for it. You argue, and this is going to be in the judge's discretion to, to do that. I could easily say the statute still says this. I can't do it right. And that's what needs to be clarified.
That's what we need our legislators to rewrite the statutes.
Elizabeth: Reach out to your legislator and tell them to detain should have done forever. They just started their long session. So they were here and they can do that
Sarah: in governor Cooper and attorney general, Joshua Stein. They joined on the brief that was putting forward in front of the court of appeals, North Carolina.
So they're invested in this. A lot of our government officials are invested in this, but obviously it takes majority to get push things through and get stats.
Elizabeth: So everybody do your part. What I get
Sarah: to that [00:14:00] go votes. I take these things seriously. Cause you don't ever know if it's going to be your friend or your cousin or you, we might know it's you, if you're not in a homosexual relationship, but you never know who's going to need this.
And you're going to be like, Oh my gosh, I can't believe that. They can't do this. It doesn't make any sense, right? It doesn't. I agree. So if someone comes to us, we do our best. We argue our best and cite the case law and go from there. And what happened in this case file a 50 C2.
If you can do everything you can to get a productive owner protection in place and something also in writing and a track because it's so important to track these things. Agree. Agreed. Yep. So if you're listening and you have some issues of domestic violence, or you think it might be abuse, even if you're a heterosexual relationship, homosexual relationship, any kind of relationship, mother, child there's abuse there too.
Please reach out there's hotlines. There's all kinds of resources out there to do a [00:15:00] quick Google, get some help. We're here for you if you need us, but otherwise, North Carolina update those statutes. Any thoughts on shots? Some shit.