You have to file a complaint (lawsuit) seeking a Domestic Violence Protective Order (otherwise known as a restraining order or as a "50B"). If it is at night or on the weekend, you do this through the magistrate's office. If it is during the week, you do it through the civil clerk of court. In the complaint, you set out the details of the act of violence or threat of violence that caused you to seek the Domestic Violence Protective Order. You will then appear before the judge or magistrate to describe what happened. If the judge or magistrate determines you are entitled to an emergency Ex Parte Protective Order, it will be issued at that time. Your abuser is not notified of or present for the emergency hearing. The emergency order is valid until there can be a hearing on the issue - at that hearing, the abuser will be present and have the opportunity to put on a defense. This hearing is normally held within 10 days. If the judge determines at the full hearing that you are entitled to a Domestic Violence Protective Order, one will be issued. This order will be valid for one year, but may be renewed at the end of one year for an additional time of up to two years.
In North Carolina, you may seek a domestic violence protective order (DVPO) when someone you have or had a personal relationship with does one of the following:
(1) Attempts to cause bodily injury, or intentionally causes bodily injury; (2) Places you or a member of your family or household in fear of imminent serious bodily injury; (3) Continued harassment that rises to such a level as to inflict substantial emotional distress; OR (4) Commits rape or a sexual offense.
Someone you have or had a “personal relationship” with includes:
(1) Your spouse, or ex-spouse; (2) A person of the opposite sex with whom you live or used to live; (3) Someone you are related to, including parents, grandparents and grandchildren, over the age of sixteen; (4) Someone with whom you have a child in common; (5) A current or former household member; OR (6) Someone of the opposite sex whom you are dating or have dated.
There are two types of DVPOs: (1) An ex parte temporary protective order; and (2) A final domestic violence protective order. An ex parte temporary protective order is designed to provide you and your family with immediate protection. If a judge believes there is a serious and immediate danger to you or your family, an ex parte order may be issued, which will protect you until the court hearing on the final domestic violence protective order. This usually lasts for ten days, but can, on occasion, be continued to last longer.
A final domestic violence protective order, also called a DVPO or a 50B, lasts up to one year. During this year, the abuser may not assault, threaten, abuse, follow, harass, or interfere with you. A DVPO may also grant you sole access to your home, possessions, pets, custody of your children, and spousal support. Once the one-year period is over, you may ask the court to extend the order for an additional year.
DVPOs are powerful tools that can be used to protect you and your family from domestic violence. They may, however, also be used as a tool to get you out of the marital home and as leverage in a child custody dispute. Occasionally, a spouse will make false allegations of abuse in the hopes of being granted sole possession of the marital home and property, and custody of any minor children. While these situations are rare, you still must prepare and defend yourself against the allegations.
If you would like to speak with a domestic attorney concerning obtaining or defending against a DVPO, please contact Adkins Law. Adkins Law is located in Huntersville, North Carolina and primarily serves Mecklenburg County and the Lake Norman area.