In the past year, some high-profile incidents of domestic abuse have placed the issue of domestic violence at the forefront of the discourse of American popular culture. It’s about time. For too long, this important issue has festered in the shadows of what may otherwise appear to be normal relationships, and all too often incidents of domestic violence precipitate divorce and custody actions in North Carolina. In a literal sense, domestic abuse and violence can tear families apart.
Unfortunately, courts in North Carolina are well acquainted with domestic violence and the havoc that it wreaks in households across the Tar Heel State. This article is intended to provide some basic information to individuals who may be affected by incidents of domestic violence—whether as a victim, as a witness, or someone concerned about the welfare of a friend or family member.
What are North Carolina’s laws on Domestic Violence?In 1979, the North Carolina General Assembly passed a new law that was designed to provide remedies to victims of domestic violence. The law, comprising Chapter 50B of the North Carolina General Statutes, provides a framework for District Courts in the state to address issues of domestic violence and to provide protection to victims. The actions and remedies outlined in Chapter 50B are separate and distinct from any criminal matters that may arise as a result of incidents of domestic violence.
In general, Chapter 50B provides to abused persons the ability to obtain an order of protection from a court that requires an abuser to keep one’s distance from a victim. In general, if an order of protection is granted and the abuser violates the order, the abuser may be held in contempt of court and imprisoned, among other potential penalties.
How do I seek relief from Domestic Violence?An individual interested in obtaining an order of protection from an abuser must travel to the courthouse in the county in which the individual lives. At the courthouse, the individual will complete a form called a Complaint and Motion for Domestic Violence Protective Order. This form for North Carolina is also available online. Instructions for completing the form can also be found online.
While the form is available online, in most instances it may be best to complete the form at the courthouse, since the individual completing the form must swear, under oath, that the matters alleged in the form are true. When completing the form at the courthouse, a clerk can acknowledge the form and ensure that it is filed correctly—or in other words, the individual completing the form can swear to the clerk that the matters stated therein are true, and the clerk is empowered to acknowledge that the individual has affirmed the truth of the Complaint.
How do I obtain a temporary restraining order?Once the Complaint form is filed, the individual filing the form can request a temporary “ex parte” restraining order. Much of our legal heritage springs from English Common Law and from, long before that, the Romans, who spoke Latin, and “ex parte” is a Latin term that means, roughly, “one party.”
Individuals who claim that they, their children or immediate family members are in immediate danger can ask a judge to enter a temporary restraining order without hearing from the other party—or the person against whom a restraining order is sought. A sample of an Ex Parte Domestic Violence Order of Protection can be found online. The order shows, in general terms, the findings that a judge must make in order to enter a temporary restraining order as well as the kinds of restrictions that can be placed on a person who has been found to have committed acts of domestic violence.
Will the person accused of domestic violence find out about the restraining order?Whether or not a temporary restraining order is sought or granted, after the Complaint and Motion for Protective Order is filed, it must be served upon the person from whom protection is sought. In order to serve the Complaint, the individual seeking the order of protection must complete a Summons, which can be found at the local courthouse or online here.
In most cases, the Summons and Complaint can be given to the sheriff, who will then serve the papers on the Defendant—or the individual accused of domestic violence—and return the Summons form to the clerk showing that the Defendant was provided copies of the Summons and Complaint.
The Rules of Civil Procedure provide other methods of service on individuals that may apply in a given case, depending on the facts. In any case, it is essential that the Defendant is served with the Summons and Complaint, otherwise an individual’s effort to obtain a restraining order may be dismissed.
If an individual has questions about the Complaint, Summons, or service, he or she should contact an experienced North Carolina family law attorney for assistance.
Do I have to appear in court to obtain a restraining order?Temporary restraining orders last only ten (10) days. Whether a temporary restraining order is sought and granted or not, when an individual files a Complaint seeking an order of protection, he or she will have to set the matter for hearing before a District Court judge. This hearing is set approximately ten (10) days from the date upon which a Complaint is filed.
In most cases, the party seeking the order of protection will complete—with the clerk’s assistance—a Notice of Hearing form, also available online here. As with the Complaint and Summons, it is essential both that the Defendant be served with the Notice of Hearing and that the person seeking a restraining order be able to prove that the Defendant has been served with the Notice of Hearing.
The person against whom an order of protection is sought has a Constitutional right to due process—or the right to have his or her side of the case heard by a court—so the failure to provide notice of the hearing to the Defendant in a manner consistent with North Carolina law can result in dismissal of an individual’s case. If an individual is unsure as to how to proceed or has questions regarding the forms or process, the best thing to do is to consult with an experienced family law attorney.
Who can help me obtain a domestic violence restraining order?The family law attorneys at Arnold & Smith, PLLC in Charlotte, North Carolina are experienced at handling restraining-order actions. The family law attorneys at Arnold & Smith, PLLC can assist those seeking orders of protection as well as those who feel they may have been wrongly accused of domestic violence. Please contact one of our experienced family law attorneys today.