Understanding Domestic Violence Protective Orders and Restraining Orders in North Carolina
February 22nd, 2018
North Carolina law provides a court process through which victims of domestic violence can secure protective orders to restrain abusers from further acts of domestic violence against the victims and their children. A domestic violence protective order is in addition to any criminal offenses that may apply to the abuser’s conduct. Violation of a valid protection order is also a criminal offense.
There are two types of protective orders:
- An ex parte temporary protective order; and
- A final domestic violence protective order.
The final order is also referred to as a DVPO, 50B order, restraining order, or no-contact order. The name 50Bis based on the chapter of the North Carolina General Statutes that provides the process.
Who Can File for a Protective Order?
The law relating to domestic violence applies to any situation involving two people with a personal relationship, which includes:
- Spouses or former spouses;
- Individuals of the opposite sex who live together or lived together in the past;
- Persons who are related as parents and children or grandparents and grandchildren, except that a protective order cannot be obtained against a child or grandchild under age 16;
- Individuals who are current or former members of the same household;
- Persons who have a child in common;
- Individuals of the opposite sex who are or have been in a dating relationship, which is defined as being romantically involved over time and on a continuous basis.
A victim is able to file a request for a protective order when the person with whom the victim has a personal relationship does any of the following to the victim or the victim’s minor child:
- Attempts to cause or intentionally causes bodily injury;
- Places the victim or a member of the victim’s family or household in fear of imminent serious bodily injury or continued harassment that rises to the level of substantial emotional distress;
- Commits any one of a number of specified criminal sexual offenses under North Carolina, including rape.
Ex Parte Temporary Protective Order
An ex parte temporary protection order provides immediate protection from the abuser. Ex parte is a Latin term used for a situation in which a judge can issue an order without having all parties present and represented. An ex parte order can be issued by the court without a hearing following a complaint by the victim alleging that he or she believes there is a serious and immediate danger to the victim or the victim’s child.
The process starts with filing a complaint in General District Court in the county where the victim or abuser resides. In some counties, the court authorizes magistrates to handle the initial stages of a request for a protective order.
If the court determines that there is a danger of domestic violence against the victim or the victim’s minor child, the court has the authority to enter an order it deems necessary to protect the victim and child. If the court finds that the child is exposed to a substantial risk of physical or emotional injury or sexual abuse, the order may include:
- A temporary order for custody;
- An order to the other party to stay away from a minor child, return a minor child to or not remove a minor child from the physical care of a parent or other person, if the court also finds that the order is in the best interest of the minor child and is necessary for the safety of the child.
In addition, if the court determines that it is in the best interest of the minor child to have contact with the other party, the court can issue an order designed to protect the safety and well-being of the minor child and the victim by specifying the terms of contact between the child and other person.
If an ex parte order is issued, it protects the victim until a full court hearing takes place, which is usually within 10 days after the order is granted or within seven days from the date the abuser is served, whichever is later.
An ex parte order becomes enforceable when the abuser has been served with a copy.
Domestic Violence Protective Order
After the hearing is held, if the court finds that an act of domestic violence has occurred, the court will grant a protective order to restrain the abuser from further acts of domestic violence. This order is the final domestic violence protective order (also referred to as the DVPO, 50B order, restraining order, or no-contact order).
The order can be issued for a period of up to one year and can be renewed for additional periods not exceeding two years, except that an award of temporary custody cannot be extended beyond the initial maximum one-year period. If circumstances change while the protective order is in effect, it can be modified by the court on motion of either party.
Under the statute, the protective order may include any of the following types of relief:
- Direct the abuser to refrain from acts of domestic violence;
- Grant possession of the residence or household to the victim and exclude the abuser from the residence or household;
- Require the abuser to provide the victim and the victim’s children suitable alternate housing;
- Award temporary custody and establish temporary visitation rights;
- Order the abuser to be evicted from the residence or household and assistance to the victim in returning to it;
- Order either party to make child support or spousal support payments as required by law;
- Determine possession of personal property of the parties, including care, custody, and control of any pet of the victim or a child;
- Order the abuser to refrain from threatening, abusing, following, harassing, or interfering with the victim and to refrain from abusing any pet or animal belonging to the victim or a child;
- Award attorney’s fees to either party;
- Prohibit a party from buying a firearm for a specific period of time;
- Order the abuser to attend and complete an approved treatment program;
- Impose any other conditions or restrictions the court deems necessary to protect the victim or a child.
The court may also award custody or visitation rights based on what is in the best interest of the minor child, with particular consideration given to the safety of the minor child. A temporary custody order issued as part of a DVPO is limited to a fixed period of time not exceeding one year. The statute lists a number of considerations for the court to take into account in determining custody and visitation and includes specific conditions and restrictions that may be imposed on visitation.
Violation of a valid ex parte temporary order or DVPO is a criminal offense. Multiple violations result in increasingly more serious charges. In addition, an individual who commits a felony which also violates a valid restraining order may be found guilty of a higher class felony in some cases, depending on the underlying felony offense.
Help Obtaining Domestic Violence Protective Orders
If you are facing a domestic violence situation, it's important to make sure that you take the right steps to get the maximum protection and relief under North Carolina law. Our family and domestic law attorneys at The Twiford Law Firm have the experience and knowledge to ensure that you and your family are protected quickly and completely.
With offices in Elizabeth City and Moyock, we serve clients throughout northeastern North Carolina, including the Outer Banks. Contact us today at 252-338-4151 or 252-435-2811 to schedule an initial consultation.
Categories: Domestic & Family Law