Domestic Violence is the assertion of power and control over an intimate partner or household member. The assertion of control uses a variety of tactics which include intimidation, threats, undermining one’s self-worth and capabilities, sexual violence, and physical force. The prevalence of domestic violence is an undefined number, but the Centers for Disease Control and Prevention estimates that nearly 1 in 4 women and 1 in 10 men in the United States have been the victim of or impacted by intimate partner violence in their lifetime.
In North Carolina, one notable tool that provides protection for victims is a Domestic Violence Protective Order, which is also referred to as a Restraining Order or 50B protective order. The Courts can grant a Domestic Violence Protective Order to a victim should an abuser attempt to cause or intentionally cause bodily injury on the victim or place 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 such a level as to inflict substantial emotional distress, with few exceptions. Please note: a Domestic Violence Protective Order is different and separate from any criminal activity that can be prosecuted by the District Attorney’s office, such as Communicating Threats, Assault on a Female, or Simple Assault.
Who can file for a Domestic Violence Protective Order?
A protective order can be filed by the victim of a domestic violence situation involving any of the following familial relationships:
a. Spouses
b. Former spouses
c. Persons of the opposite sex who never married but live together or have lived together
d. Persons having a child in common
e. Persons who are in a parent/child relationship or grandparent/grandchild relationship (Note: an aggrieved party cannot obtain a protective order against a child or grandchild under the age of 16)
f. Persons who are current or former household members
g. Persons who are of the opposite sex who are in or have been in a dating relationship.
Is a Domestic Violence Protective Order right for me?
Although Domestic Violence is exhibited though mental and emotional violence, psychological manipulation, and financial abuse, the Domestic Violence Protective Order is generally a tool used only to ensure that the lives and bodily integrity of Domestic Violence victims is protected. The North Carolina laws defining Domestic Violence for this purpose do not emphasize the real but at times hard-to-define aspects of domestic violence outside of physical violence. However, in particular with a spousal situation, there may be remedies outside of the Domestic Violence Protective Order that could assist combating these other forms of Domestic Violence. For example, if financial abuse is a factor (which it tends to be in almost all Domestic Violence situations), a Domestic Violence victim may be able to assert financial support claims.
How do I file a Domestic Violence Protective Order?
Should you find yourself in an on-going domestic violence situation, the very first step is to call “911” or local law enforcement. If the situation has passed, either call the police or go to a magistrate as soon as you are able. If your life or the lives of your children are being threatened, there is no reason to wait and there are resources available to you.
Thereafter, a Complaint and Motion for a Domestic Violence Protective Order is filed with the Court. There are no associated court fees. Depending on when the Complaint is filed, a hearing before a magistrate or a Judge will occur to determine if the victim’s situation requires immediate protection. If so, the Court may grant an “Ex Parte Domestic Violence Order of Protection”. “Ex Parte” refers to the situation in which a Court makes an Order without both parties (the victim and the abuser in this situation) present in the courtroom. An Ex Parte Domestic Violence Order of Protection will generally be in place for a maximum of ten (10) days. During that time period, the victim and abuser will be required to appear in front of a Judge to determine whether or not a Domestic Violence Protective Order should exist for up to one (1) year. If the one-year Order is granted, then the victim may request the Order’s extension. Please note: extensions are not regularly granted by the Court in the absence of a continued concern for imminent harm.
If you find yourself in Court, please remember that the Judge, the clerks, and the bailiffs are extremely aware of the potential threat to victims in the courtroom; therefore, if you find yourself in Court being intimidated by the presence of the abuser, please do not hesitate to inform the bailiff of your concerns.
What will a Domestic Violence Protective Order do?
If granted, a Domestic Violence Protective Order will require the abuser to not contact, assault, threaten, abuse, follow, harass or otherwise interfere with the victim, and possibly also any minor children involved. The Order may also temporarily evict the abuser from the residence in which the parties reside, require the abuser to stay away from certain locations in which the victim frequents, grant possession of a vehicle to a victim, protect any animals or pets in the residence, prohibit the abuser from possessing or purchasing a firearm, or a number of other protections to ensure a safe situation moving forward. Should an abuser violate the Domestic Violence Protective Order, the police can be immediately called and the abuser may be placed under arrest for the criminal charge of Violation of a Domestic Violence Protective Order. A Domestic Violence Protective Order is a unique mechanism created by North Carolina’s legal system to connect a civil matter with criminal sanctions actionable by the State of North Carolina against violent individuals. Depending on the violation, the abuser may face incarceration.
What about my children?
A Domestic Violence Protective Order has a mechanism that permits the Courts to temporarily assign custody of the minor children with the victim. However, a Domestic Violence Protective Order is not a custody order. Rather the Domestic Violence Protective Order is a means to ensure the minor children are taken out of a violent situation. To address the custody of the minor children moving forward, a complaint for child custody may be required.
Modern Legal is committed to changing Domestic Violence victims into empowered survivors. Please contact us if you, your friend, or your family member finds herself or himself in a Domestic Violence situation at 704.286.6302.
Please note: these educational materials are based on North Carolina law where my legal practice is based. While the insights may have wide applicability, readers should consult with an attorney regarding the specific laws in their state or country.
Written by: Theresa E. Viera
