Restraining Orders

North Carolina law allows someone to seek a restraining order under local statutes. These include domestic violence (50B) or stalking (50C) restraining orders. Domestic violence restraining orders are quite common and typically used as intended – to protect those who are victims of violence. Sometimes, however, restraining orders are misused to intimidate, embarrass, harass or extort the accused.

Keep in mind that if you are in danger in Waxhaw or anywhere else in Monroe, Union County North Carolina, it is vital to act quickly to protect yourself from harm’s way. If you are wrongly accused in North Carolina and have a restraining order against you, however, it is just as vital to act quickly in putting up your defense because the legal process with regard to restraining orders can move very quickly. Do not reason that you do not want to go near the accuser anyway and, thus, a restraining order does not really matter. This can be a dangerous position to take. This is because a violation of a restraining order can result in a separate and independent criminal charge against you.

North Carolina law allows any citizen to go to his or her local Magistrate and swear criminal charges against another, under the assumption the accuser is swearing to the truth of his or her statement. Likewise, a citizen may file a restraining order using virtually the same procedure. A 50B restraining order may also be referred to as a Domestic Violence Protective Order (DVPO).

A 50B requires a personal relationship to exist between the one seeking protection from a DVPO and the person from which they seek protection. Personal relationships include: current and ex-spouses, parents and their children, people who have dated, and those who are living together. North Carolina makes violation of a valid DVPO punishable as a Class A1 misdemeanor. Penalties include up to 150 days in jail. Someone convicted of previously violating a DVPO at least twice can be charged with a Class H felony. Penalties include a maximum sentence of 20 to 33 months in jail.

When most people talk about a restraining order in Waxhaw, they are actually describing a DVPO or a 50B – the specific statute that addresses domestic violence between individuals who have a personal relationship. When someone needs protection from another with whom he or she does not have a personal relationship, the 50C restraining order comes into play.

A 50C covers scenarios in which a person is victimized by the unlawful conduct of another – even if there is no physical injury present. Unlawful conduct under North Carolina law as it pertains to 50C restraining orders includes non-consensual sexual conduct as well as stalking. The process by which someone is granted a 50C is virtually the same as the manner in which he or she can obtain a 50B. An application is made to the appropriate court for a temporary restraining order that will remain in effect for 10 days until a hearing is held for a more permanent restraining order. This application is done “ex parte,” meaning the other side need not be notified prior to issuing the order. If the court is convinced that the requestor’s evidence justifies imposing restrictions on the defendant, it may do so. The court has fewer options under a 50C restraining order than a 50B DPVO. Some restrictions that a court may impose include not interfering, stalking, harassing, abusing, contacting, or being near the victim. Other relief, as the court may deem necessary, may also be imposed to protect the applicant. Notably, one important difference between a 50B and a 50C is that violation of the former is punishable by criminal charges whereas the latter is punishable by only contempt.

There is one final method by which someone may petition a North Carolina court to protect him or herself and also prevent another from being nearby or doing certain things. Under North Carolina’s Rules of Civil Procedure 65 (R65), an emergency temporary restraining order may be granted without the other party being notified – referred to as “ex parte.” The court must be satisfied that the moving party has certified that an irreparable harm will result prior to the other side being heard, and he or she lists and describes the efforts made to give notice to the other side. Just like a 50C, the R65 temporary restraining order may be in effect for 10 days. The court may extend this time, however, if it is convinced of a good reason to do so or if the other side is notified and consents to the extension. If a moving party seeks a temporary restraining order (TSO) and a preliminary injunction – or an order for the other person not to do something – the case is set for a hearing on the next available day.

If you or someone you know is in danger and needs a restraining order in Waxhaw - or if you have had a restraining order placed against you - contact the experienced family law lawyers at Arnold & Smith, PLLC today.