The North Carolina legislature has enacted Chapter 50(B), “Domestic Violence,” to allow victims of domestic violence to petition the Court for a protective order. The main purpose of the protective order is to restrain the respondent from having contact with the petitioner, although other orders may be entered as described below. These actions are separate from any criminal proceedings arising out of any alleged domestic violence.
Whether you are contemplating filing a request for a protective order for yourself and/or your children, or you have been served with a request for a protective order, we encourage you to contact our office to obtain assistance with this serious matter from our experienced attorneys.
FAQ regarding domestic violence:
Who is eligible for a protective order under Chapter 50(B)?
To be eligible for a domestic violence protective order under Chapter 50(B), the petitioner and respondent must have a “personal relationship,” defined under North Carolina law as follows:
(1) Current or former spouses;
(2) Persons of opposite sex who live together or have lived together;
(3) Related as parents and children, including others acting in place of a parent to a minor child, or as grandparents and grandchildren. (Note that an aggrieved party may not obtain an order of protection against a child or grandchild under the age of 16);
(4) Persons who have a child in common;
(5) Current or former household members;
(6) Persons of the opposite sex who are in a dating relationship or have been in a dating relationship.
An individual can seek a domestic violence protective order for themselves, and/or for a minor child who resides with or is in the custody of the individual.
What procedure will be followed?
First, an individual requesting a domestic violence restraining order will commence a civil action by filling out the appropriate forms.
A summons will be issued by the Clerk and must be served on the defendant. Along with the summons, the respondent should be served with a copy of the Complaint, Notice of Hearing, and any temporary or ex parte order that has been issued.
The petitioner may request emergency relief if they believe there is a danger of serious and immediate injury to himself/herself or a minor child. A hearing on a motion for emergency relief, where no ex parte order is entered, shall be held after five days’ notice of the hearing to the other party, or after five days from the date of service of process on the other party, whichever occurs first, provided that no hearing shall be required if service of process is not completed on the other party.
Before the hearing, even without the respondent being served, the Court has the ability to enter a temporary domestic violence protective order if it appears that it is necessary to protect the plaintiff or minor child from those acts. The Court cannot enter a temporary order for custody of a minor child ex parte (i.e., a proceeding without all parties present) unless the Court finds that the child is exposed to a substantial risk of physical or emotional injury or sexual abuse.
If a party requests an immediate emergency order to be made ex parte (i.e., without both parties present), the hearing on the request for an immediate emergency ex parte order must occur the earlier of within 72 hours of the filing of the request, or by the end of the next day on which the district court is in session in that county.
If the Court issues an ex parte order, a hearing must be held within 10 days from the date of issuance of the order, or within seven days from the date of service of process on the other party, whichever occurs later.
If the Court finds that an act of domestic violence has occurred, it shall grant a restraining order restraining the defendant from further acts of domestic violence. Under North Carolina law, the Court can also make other orders, as discussed below.
A copy of any order entered must be issued to each party, and a copy of the order must be issued to and retained by the police department of the city of the victim’s residence (or the sheriff and/or county police department if the victim does not reside in the city, or there is no police department). If the protective order includes an order that the respondent stay away from the child’s school, a copy of the order shall be delivered promptly by the sheriff to the principal, or in the principal’s absence, the assistant principal or principal’s designee.
What issues can the Court address in a protective order proceeding?
It is important to note that the Court has the power to make orders not just regarding contact between the parties, but orders on other important issues, including:
(1) Directing a party to refrain from acts of domestic violence.
(2) Granting to a party possession of the residence or household of the parties and excluding the other party from the residence or household.
(3) Requiring a party to provide a spouse and his or her children suitable alternate housing.
(4) Awarding temporary custody of minor children and establishing temporary visitation rights
(5) Ordering the eviction of a party from the residence or household and assistance to the victim in returning to it.
(6) Ordering either party to make payments for the support of a minor child as required by law.
(7) Ordering either party to make payments for the support of a spouse as required by law.
(8) Providing for possession of personal property of the parties, including the care, custody, and control of any animal owned, possessed, kept, or held as a pet by either party or minor child residing in the household.
(9) Ordering a party to refrain from doing any or all of the following:
a. Threatening, abusing, or following the other party.
b. Harassing the other party, including by telephone, visiting the home or workplace, or other means.
b1. Cruelly treating or abusing an animal owned, possessed, kept, or held as a pet by either party or minor child residing in the household.
c. Otherwise interfering with the other party.
(10) Awarding attorney’s fees to either party.
(11) Prohibiting a party from purchasing a firearm for a time fixed in the order.
(12) Ordering any party the court finds is responsible for acts of domestic violence to attend and complete an abuser treatment program if the program is approved by the Domestic Violence Commission.
(13) Including any additional prohibitions or requirements the court deems necessary to protect any party or any minor child.
The Court may also make orders regarding the respondent’s possession of firearms, including but not limited to the surrender of all firearms.
How long will the order be in effect?
Protective orders initially may be valid for up to one year. Upon a showing of good cause, the court may renew the order for up to two years (including those that have already been renewed) upon the request of the aggrieved party and prior to the current order expiring; however, temporary custody orders entered as part of a protective order may only be in effect a maximum of one year.
What happens if the order is violated?
The aggrieved party may file a motion for contempt. In addition, the party violating the order may be subject to criminal prosecution.
If you are protected by the order:
If you are protected by the order, it is advisable that you keep a copy with you at all times, including at work and in your vehicle. Though it isn’t required, it might expedite matters if you ever have to contact law enforcement regarding a violation of the order.
Potential adverse consequences if you have been served with a request for a domestic violence restraining order:
For the respondent who has a domestic violence order entered against him/her, there are adverse consequences which may include consideration of the order in a custody case, negative implications in connection with applying for a job or professional license, and negative consequences in connection with admission to an academic institution. (See Smith ex rel. Smith v. Smith, 145 N.C. App.434 (2001)). These potential adverse consequences make it advisable that you seek the assistance of an attorney if you have been served with a request for a domestic violence protective order.
For more detailed information or to discuss your case with an experienced attorney, contact us now for a consultation. You may also reach us at 910.399.3725.