How you can you get a restraining order against a dangerous ex lover or spouse? North Carolina law allows for the protection of persons victimized by domestic violence in NCGS 50-B. Under this law, a victim can seek and obtain an immediate restraining order against a dangerous ex without waiting for a court date. If you have grounds, the process of obtaining a restraining order is relatively simple.
- WHO CAN GET AN ORDER. In order to obtain a restraining order under NGGS 50-B, the person you are seeking to restrain must fall into one of the following categories:
- spouse or ex spouse
- persons of opposite sex who are or have lived together
- have a child in common
- parent and child (or in loco parentis)
- grandparents and grandchildren
- persons of the opposite sex who are or have been in a dating relationship
- GROUNDS FOR A RESTRAINING ORDER: In order to obtain a Domestic Violence Protective Order in North Carolina, you will have to allege that the Defendant committed an act of domestic violence by causing bodily injury or attempting to cause bodily injury, OR by placing you or a member of your immediate family in fear of imminent serious bodily injury or continued harassment that rises to such a level as to inflict substantial emotional distress. An order will also be entered if the offender commits an act of sexual abuse or rape against you or your child. In practical terms, you can obtain a restraining order if you or your child are assaulted, threatened, or harassed to the point you have significant emotional distress.
- OBTAINING AN ORDER
a. Prepare a COMPLAINT AND MOTION FOR DOMESTIC VIOLENCE PROTECTIVE ORDER (AOC CV-303) by filling in the required information and describing the basis for the request.
b. Prepare a Civil Summons which will be served on the Defendant along with a copy of the Complaint and Order. The summons explains to the Defendant that an action has been filed against them and that they have to respond to the appropriate Court.
c. Take these documents to the county clerk of court, who will assist you in appearing before the local Judge or Magistrate dealing with requests for Domestic Violence Restraining Orders.
d. The Judge will read your Complaint and may ask you a few simple questions. If you have grounds, the Judge will issue an Ex- Parte Domestic Violence Restraining Order, which means the Defendant will be restrained from assaulting, threatening or harassing you and most likely from contacting you until a subsequent hearing. ”Ex-Parte” means an order entered without the presence of both parties, which is unusual based upon the Constitutional right of due process. When a Court enters an “ex Parte” order, a return hearing will have to be scheduled within 10 days, so that the Defendant may be heard and the Plaintiff will be required to prove their case based upon a preponderance of the evidence.
e. The return hearing date will be assigned, and a Notice of that hearing date is included in the Order for the parties.
f. You will receive a copy of your Order, and the local Sheriff’s office will attempt to serve the Defendant with the Complaint, Summons, and Order.
- THE RETURN HEARING
As discussed above, if you are granted an ex-parte restraining order, there will be a return hearing scheduled within 10 days, At that hearing you will have to prove the allegations you made in your complaint. You will need to bring any witnesses, photographic or medical evidence, and be prepared to discuss what happened. Restraining Orders are civil matters, so your burden of proof is a preponderance of the evidence rather than beyond a reasonable doubt. Preponderance of the evidence means greater weight of the evidence, which is an easier burden to meet. Many restraining orders are granted based upon he said-she said evidence because one party was deemed more credible.
- DURATION OF ORDERS AND RENEWING ORDERS.
A Domestic Violence Protective Order can be entered for up to one year. The order may be renewed for good cause prior to expiration of the one year upon motion of the Plaintiff for up to two additional years. Temporary Child Custody Orders entered in domestic violence actions may not be renewed however and they will expire in one year. A standard custody action under NCGS 50-B would be needed prior to the expiration of the initial restraining order.
- CHILD CUSTODY IN DOMESTIC VIOLENCE RESTRAINING ORDERS
The law allows you to make a claim for and obtain temporary emergency custody in a claim for domestic violence. You would have to fill out an additional form with your complaint. In order to include the children in a protective order, it would be necessary to show some relationship with the act of domestic violence and the children, such as the children being present at the time of an assault, a threat of suicide which is always deemed to warrant protection, or some other grounds. A custody order entered in a domestic violence protective order will be temporary, and it can and will be superseded by any regular custody order obtained under NCGS Chapter 50.
This article contains only limited, general information about North Carolina Domestic Violence Restraining Orders. Do not assume that you cannot get an order just because you are not sure your situation fits any of the categories described. It is also important to note the first line of defense if you feel threatened or abused is local law enforcement. Call the police if you have been threatened or assaulted. Please consult with a local attorney experienced in family law and domestic violence cases to advise with regard to protecting yourself and your children. If you feel you are in danger, trust your instincts and take advantage of the tools the law has provided to protect yourself.
By: Glenn Doyle
Raleigh Divorce Lawyer
Doyle & Doyle, PA