Author: Stephen Corby
If you and/or your children are victims of domestic violence, you need to understand that there are several ways to protect yourself and your family within the legal system. Please note that a man may receive protection from domestic violence in the same way that a woman can. This article will explain the steps to take if you are a victim of domestic violence and will also address what to do if you are the defendant in a domestic violence case.
Timeline of a Domestic Violence Protection Order (DVPO)
Domestic violence occurs
File a motion/complaint for a DVPO
Ex parte hearing in front of judge or magistrate
Ex parte DVPO is granted or denied
If granted, the temporary DVPO is valid for 10 days
Notice of hearing issued to defendant
DVPO hearing takes place 7-10 after ex parte DVPO is granted
Parties enter into a consent order or a hearing occurs in front of the judge with both parties present
If granted, the DVPO is valid for 1 year, with the option of renewing for up to 2 years
How do I qualify for a DVPO?
A victim of domestic violence may seek a protection order under Chapter 50B of the North Carolina General Statutes. The restraining order is generally referred to as a “DVPO” or “50B”. To receive this type of restraining order there must be a “personal relationship” between the victim and the abuser. A personal relationship exists when the parties involved are: (1) current or former spouses; (2) people of opposite sex who live together or have lived together; (3) related as parents and children, including those who have a parent-child relationship but are not actually related or as grandparents and grandchildren; (4) people who have a child together; (5) are current or former household members; and (6) person of the opposite sex who are in a dating relationship. A dating relationship is when the parties have been romantically involved over time and on a continuous basis. It does not apply to members of the same sex who are in a dating relationship UNLESS they lived together at some point. Additionally, it is not domestic violence if the plaintiff and defendant are co-workers, friends, or neighbors. Those who do not have a qualifying relationship may be able to file under Chapter 50C of the North Carolina General Statutes
How do I get a DVPO/50B?
The first step to obtaining protection from domestic violence is to file a complaint for a Domestic Violence Protective Order (DVPO). Once the complaint is filed, the victim will have an ex parte/emergency hearing. This means that the hearing will take place without the defendant present. The ex parte hearing generally takes place immediately after the complaint is filed, either that day or the next morning. During the hearing, the victim presents their case to a magistrate or judge and they will determine if there is an emergency basis for the protective order. In a typical case, the judge will ask questions about what happened, if you are married, if there are children involved, if this has happened before, etc. If an ex parte protective order is granted, it is valid for 10 days.
What happens after a temporary DVPO is granted?
After the ex parte domestic violence protective order is granted, the court will issue a notice of hearing to the defendant. This means that the defendant will be made aware of the DVPO and the date/time of the future hearing. Generally, the order will inform the defendant that he/she shall not commit any further acts of domestic violence or make any threats of domestic violence and that he/she shall have no contact with the victim.
The DVPO Hearing
The hearing will be scheduled anywhere from one week to 10 days after the DVPO is issued. In Mecklenburg County, all domestic violence hearings take place in courtroom 4110 on the 4th floor. At this point, the parties have 2 options: (1) enter into a consent order; or (2) participate in a hearing to determine if a one-year restraining order should be granted.
A consent order is a way to avoid a hearing. What a consent order does is create a mutual restraining order between the parties. It has the same effect as a DVPO but not the same consequences. For example, a consent order does not contain any findings of fact or admission of fault by the defendant. It is basically an agreement between the plaintiff and the defendant to have no contact with each other for the next year. The consent order can be handled more quickly than the time it takes to have a hearing. The parties do not have to take the stand and be subject to cross-examination. Also, the terms of the consent order are fairly flexible and the parties can add terms to the order.
If the defendant does not want to enter into a consent order, a hearing will take place and the judge will determine if the DVPO should be extended for 1 year. The hearing is similar to a trial because the judge listens to evidence and witnesses of both parties to make the decision. In order to extend the DVPO, the judge must find that the defendant committed one or more of the following acts: (1) Attempted to cause bodily injury to the plaintiff; (2) Intentionally caused bodily injury to the plaintiff; (3) Placed the plaintiff or member of plaintiff’s family or household in fear of imminent serious bodily injury; or (4) Placed the plaintiff or member of the plaintiff’s family or household in fear of continued harassment that rises to such a level as to inflict substantial emotional distress.
The judge will make specific findings of fact that can be brought up at subsequent family court hearings. The judge will either grant the DVPO for 1 year or dismiss the DVPO on lack of evidence to show domestic violence.
If you are a defendant in a DVPO hearing it is CRUCIAL to have an attorney. A court-ordered DVPO can have negative consequences for future family court issues such as child custody, post-separation support, and alimony. Whether you are a plaintiff or a defendant involved in a DVPO hearing, The Law Office of Stephen M. Corby can zealously represent your interests.