Complete Guide to Domestic Violence Protective Orders

Domestic Violence Protective Order Guides

Domestic Violence Protective Orders – 50B – A Complete Guide

Has your marriage degraded to a point that living with your spouse causes you emotional distress? Do you live in a home ruled by intimidation, fear, or threats of domestic violence? Are you fearful that if you don’t do everything the right way that there will be consequences which can include emotional or physical harm to you or your minor children? Do you worry that if you leave the marital home you won’t be able to take your children with you and you won’t be able to support yourself? These are the typical stories of victims of domestic violence. Seeking a domestic violence protective order may be your only way out.

Domestic violence protective orders can also be used improperly. It is not uncommon for a protective order to be filed to effectuate a separation or get a quick custody order in place. If an actual act of domestic violence has not occurred, this is wholly inappropriate and wastes valuable Court resources that should be dedicated to helping actual victims.

Understanding what constitutes domestic violence and how a 50B order can protect you are the first steps in getting started.

What is Domestic Violence?

Many people think they can’t get a domestic violence restraining order unless their significant other has physically assaulted them. An act of domestic violence is defined under N.C. Gen. Stat. § 50B-1 and includes the commission of any of the following acts:

  • Causing bodily injury
  • Attempting to cause bodily injury
  • Placing a person or a member of the person’s family or household in fear of imminent serious bodily injury or continued harassment, that rises to a level as to inflict substantial emotional distress
  • A range of sexual offenses including, forcible rape, statutory rape of a child, forcible sexual offense, statutory sexual offense, sexual activity by a substitute parent, custodian, or with a student, sexual battery

You may obtain a domestic violence protective order on behalf of yourself or minor children residing with or in your custody.

In order to obtain a domestic violence protective order under Chapter 50B a present or past personal relationship with the accused is required. A personal relationship is defined under North Carolina law as a relationship wherein the parties involved:

  • Are current or former spouses;
  • Are persons of the opposite sex who live together or have lived together;
  • Are related as parents and children, including others acting as parents (grandparents, foster parents, guardians, etc.) Have a child in common;
  • Are current or former household members;
    Are persons of the opposite sex who are in or have been in a dating relationship.

It is important to point out that the definition of a personal relationship under North Carolina law discriminates against same-sex couples who have never lived together. You cannot obtain a domestic violence protective order against a current or former same-sex individual with whom you are in a dating relationship if you have never lived together. Your sole remedy would be to proceed for a no-contact order under Chapter 50C. For more on this and the fight to extend the protection of Chapter 50B to same-sex couples, click for more information.

Assuming you can prove a personal relationship, you may find it easier to understand what actions constitute domestic violence by breaking acts up into three categories.

Physical Acts and Attempted Physical Acts

If a person you’ve been involved in a personal relationship with causes you bodily injury or attempts to cause bodily injury, you’ve satisfied grounds for a domestic violence protective order. While the definition of bodily injury is not clear under North Carolina law, the key distinction to understand is that mere physical contact does not necessarily constitute bodily injury. You must prove some type of injury whether it be a severe injury that required a hospital visit or cuts and bruises. Note that self-defense is a defense to domestic violence protective orders. If both parties have suffered cuts and bruises and a Court can’t determine who the aggressor was, injuries standing alone may not be enough to support the entry of an order.

Attempting to cause bodily injury can consist of swinging an object, firing a weapon, attempting to punch or otherwise hit a victim, or pushing down stairs or towards an object that can cause harm. This list is not all-inclusive, but proof of actual bodily injury is not required if in fact an attempt was made to cause you harm. If you can provide bodily injury or an attempt to cause bodily injury, you do not have to prove fear of imminent bodily injury that inflicts substantial emotional distress.

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Threats of Physical Acts

You can also obtain a domestic violence restraining order if a person with whom you’ve had a personal relationship threatens to harm you, a person in your family, or a person in your household. In order to proceed on this ground, you must prove that the threat occurred but you also must prove that the threat placed you in fear of imminent serious bodily injury and that it caused substantial emotional distress. Generally, these threats take the form of a threat to physically assault you or a household member. Fear is a requirement under this prong that must be established; a DVPO cannot be issued despite a threat if you do not have a subjective fear of imminent serious bodily injury.

If the opposing party is represented you can expect an exploration of whether you are fearful on cross examination. Common evidence that is presented to try and prove you did not have a fear of the defendant is:

  • Statements by you that you didn’t believe the defendant would carry out the threat;
  • Proof that you continued to communicate with the defendant after the threat was made, including inviting the defendant to your home, going to the defendants home, and/or attempts to reconcile the relationship;
  • Continuing to live with the defendant;
  • Not notifying authorities or anyone else about the threat and the fact that the threat caused you concern;
  • Communication with the defendant after entry of an emergency ex parte order.

Substantial emotional distress is another term without a clear definition under North Carolina law. The following are examples of substantial emotional distress that have been found to be sufficient by local judges:

  • engaging in individual therapy for yourself or your minor children
  • sleep disturbances
  • uncontrollable emotions
  • paranoia and/or anxiety
  • abnormal daily patterns
  • mental health diagnoses that result from domestic violence, such as PTSD and behavioral disorders

It cannot be stressed enough that you must prove 1) a threat of bodily injury, 2) fear of imminent bodily injury, and 3) substantial emotional distress. If any of these elements are missing, legally a judge cannot grant your domestic violence protective order.

Note: Retaining an attorney is not required to seek a domestic violence protective order. Courts hear from unrepresented persons regularly and are focused on providing assistance for people in need. There are also organizations which can assist you in filing for no cost to you such as Interact and Legal Aid. Seek help today to put an end to domestic violence.

Harassment and Stalking

Chapter 50B also includes within the definition of domestic violence placing a person or a member of the person’s family or household in fear of continued harassment that causes substantial emotional distress. Criminal harassment is required and is defined under North Carolina law as (N.C. Gen. Stat. 14-277.3A(b)(2)) knowing conduct directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose. Harassment can be in person or can be conducted via written, printed or electronic communication or transmissions.

Harassment can include a wide range of conduct communicated in many different ways. If you’ve been a victim of conduct that you believe is aimed at tormenting or terrorizing you may be able to obtain protection via Chapter 50B. An important point is that the conduct must not serve a legitimate purpose. Often client’s complaint about repeated litigation and litigation related actions and refer to them as harassment. In custody cases, it’s not uncommon for communication between parents to break down to a point where insults are frequently exchanged in basic communication.

Criminal harassment in cases like these can be tough to prove, due to the fact that a legitimate purpose to communicate may exist during the course of legal proceedings.

Obtaining an Ex Parte Order

When you file for a domestic violence restraining order, you can seek an emergency order if you believe there is a danger of serious and immediate injury to yourself or your minor child. Upon filing your action, you’ll appear in front of a judge and offer testimony regarding the allegations in your complaint. This initial hearing is an ex parte hearing, which means that it can be conducted without notice to the other party. Based on your testimony, a judge may enter an emergency ex parte order which would prevent your abuser from having contact with you pending a hearing on your complaint. If the court cannot find a danger of serious and immediate injury to yourself or your minor child, the court will deny the ex parte, however, you will still return for a hearing on whether a permanent domestic violence protective order should be entered.

Get Help: How to File a Domestic Violence Protective Order (Wake County)

10 Day Return Hearing

Whether or not an ex parte is granted you will return to court within 10 days for your return hearing. If you’re able to meet the standard to obtain a domestic violence order, it will be entered and remain in place for a period of 1 year. We’ve described what you must prove at this hearing in this guide, but the short and sweet version is either:

  • Causing or attempting to cause bodily injury
  • Placing a person or a member of the person’s family or household in fear of imminent serious bodily injury or continued harassment, that rises to a level as to inflict substantial emotional distress
  • A range of sexual offenses including, forcible rape, statutory rape of a child, forcible sexual offense, statutory sexual offense, sexual activity by a substitute parent, custodian, or with a student, sexual battery.

Other Remedies

A court can also order any of the following to assist a victim of domestic violence:

Your first priority should be the protection of you and your family from acts of domestic violence. Exposure to domestic violence can have a lasting effect on you and your children’s mental and physical well-being. Take action today with the assistance of our attorneys.

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