Domestic violence is a pattern of abusive behavior that occurs between family members or intimate partners. It is not only the number one public health issue facing women and children in our communities, but also a frightening social problem of epic proportions and an important human rights issue. It takes many forms and can happen once in a while or all the time. It does not discriminate and may take the form of threats, physical attacks, rapes, or sexual assaults directed at the victim, the victim's children, family members, or property. It crosses ethnic, racial, age, national origin, religious, and socioeconomic lines.

It should never happen to anyone. Not ever. Not even once. Period. But it does.  If you are a victim of domestic violence or afraid you may become a victim there is help. Visit www.charmeck.org/Departments/Womens+Commission/Home.htm for more information.

North Carolina General Statutes define Domestic Violence as:

• attempting to cause bodily injury, or
• intentionally causing bodily injury, or
• placing the party seeking the order (the victim) or a member of the victim's family or household in fear of imminent serious bodily injury, or
• committing, or attempting to commit, rape, a sexual offense or a
• sexual offense with a minor child living in the household.

 

• PROTECTIVE ORDERS
• DVPO QUALIFICATIONS
• REQUESTING A DVPO
• FILING A DVPO
• HEARING PREPARATION

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DOMESTIC VIOLENCE PROTECTION ORDERS

North Carolina General Statutes Chapter 50B provides that victims of domestic violence can get an order of protection from the court. Domestic Violence Restraining Orders ("50B", restraining orders, or DVPO's) are civil orders limiting the contact a person may have with a victim and the statutes provide for two types:

An emergency order, also called an ex parte order, is available if there is a danger of serious and immediate injury to a qualifying adult or to a minor child. Such an order may be applied for at the Clerk of Superior Court's during normal hours and the victim will be required to appear before a judge to explain the need for an order of protection. If a judge finds that there is danger to the victim or a minor child, the judge can issue an emergency ex parte order of protection with any provisions the judge feels is needed to protect the victim or the minor child. Such an order is good for 10 days.

If an ex parte order is requested and the judge feels it is not an emergency, a hearing date will be set. This hearing will allow the judge to decide if an order of protection should be issued without the other party being present. If the judge issues an emergency ex parte order, a hearing will still be required in order that the judge to may decide whether another order, one lasting for one year, is necessary.

If a victim wishes to ask the judge for the year-long order, he or she will be required to come to court again. Otherwise, the judge will not grant the longer lasting order and the emergency order will expire. Once granted, this order becomes effective in every county of the state. Nevertheless, it is important that the victim keep a copy with them so that law enforcement officers in another county will be able to determine that such an order is in effect.

If the police are called, and if they have probable cause to believe that the person against whom the order is written has violated it, Section 50B-4(b) requires that they take the person into custody. He or she will be brought before a magistrate and a Magistrate's Order for Violation of a 50B obtained. Defendant will then be subject to the restrictive conditions of the "48-hour" rule and its bond and conditions of release quidelines will apply.

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QUALIFICATIONS FOR A DV PROTECTIVE ORDER

To qualify for such an order, the parties must be in one of the following relationships:

• a spouse or ex-spouse
• members of the opposite sex who are living or have lived, as if married
• parties who have a child, or parties who are parents, grandparents or others acting in place of parents of a minor child
• current or former household members
• parties who are dating or have dated in the past.

Once qualified the victim may ask the Court for an order which may:

• order the offender to refrain from the acts,
• grant possession of the home and keep the offender from the home,
• require the offender to provide the victim and the victim's children a suitable place to stay away from the home,
• award temporary custody of minor children to the victim and establish visitation rights,
• order the eviction of the party from the home and order assistance to the victim in returning to the home,
• order child support payments by either party,
• order spousal support payments (if the law provides for it),
• order that either party be given possession of personal property

The court may also order an offender to refrain from doing any or all of the following acts:

• threatening, abusing or following the other party
• harassing the other party by telephone, visiting the home or workplace
• or other means, or
• otherwise interfering with the other party
• award costs and attorney's fees to either party,
• prohibit a party from purchasing a firearm for a specified period of time,
• order the party who is committing the domestic violence to attend an
• abuser treatment program,
• order anything else the judge feels is necessary to assure the safety of
• a minor child or any party.

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REQUESTING A DV PROTECTIVE ORDER

Requesting a DVPO is not a complicated process, but it is an involved one, and attention to detail is an important consideration. To begin, an applicant (Plaintiff) will need the following forms:

• two yellow and one white Civil Summons
  
• a Complaint and Motion
  
• an Ex Parte an Identifying Information About Defendant
  
• one Affidavit as to Status of Minor Child for each child for whom the applicant and Defendant are parents, guardians, or custodians.

Note that some of the forms require a signature. Unless otherwise indicated here, forms should be signed in the presence of the Clerk of Court. The Clerk will then witness the signature and notarize the forms without charge.

There is a $56 filing fee and a $5 service fee associated with these forms. If the applicant does not have the money the appropriate box on the Complaint and Motion should be checked.

CIVIL SUMMONS (AOC-CV-317)

• Provide the name of the county where the forms will be filed.
• Provide Plaintiff's first name, middle name, and last name. (The Plaintiff's address is not required if this information is to be kept from Defendant).
• Provide Defendant's full name
• Provide Defendant's full name again, along with his/her address
• Complete each civil summons (two yellow, one white) in this way. Do not substitute photo copies.

COMPLAINT AND MOTION (AOC-CV-303)

• Provide the name of the county where the forms will be filed.
• Provide Plaintiff's first name, middle initial, and last name.
• Provide the first name, middle name (or initial), and last name of Defendant and his/her address. (The Defendant's address is required in order to file these papers. If Defendant's home address is not known, a current work address is permitted).
  1. Provide the name of the county where the forms will be filed.
  2. Check all boxes that describe Plaintiff's relationship with Defendant.
  3. Check the first box if there are criminal charges, or other civil charges between Plaintiff and Defendant. Describe the charges (Ex: Assault, Custody, Divorce, etc.), the county where the charges are being heard, and the court date (if known). If there are no charges check the second box.
  4. Check this box and describe the events that lead to the belief Defendant may harm Plaintiff. Provide dates and quote threats made (Ex: "If you leave me, I will kill you."). Describe any physical injury that Plaintiff has received (Ex: "He/she hit me with his/her fist on the right side of my face"). Additional pages may be attached.
  5. Check this box if Defendant has threatened, or has injured Plaintiff's
     child(ren). Describe threats or injuries as in #4.
  6. Check this box if there is a risk of serious & immediate danger to Plaintiff, or to Plaintiff's child(ren).
  7. Check this box if Plaintiff is requesting that the judge consider give Plaintiff temporary custory of the child(ren) who also belong to Defendant. Fill in the full name and date of birth for each child belonging to Plaintiff and Defendant.
  8. Check this box if Plaintiff is unable to pay the cost of filing these forms. ($61 Complaint and Motion).

Complete the following section checking each box that applies to any and all relief that Plaintiff is requesting from the court.

2. Check this box if Plaintiff is requesting a Temporary Order (Ex-Parte) granting emergency protection until the day of the hearing.
3. Check this box if Plaintiff is requesting that Defendant be denied contact with Plaintiff and/or Plaintiff's children.
4. Check this box if Plaintiff wants to remain in the home he/she shares with Defendant, even if Plaintiff is not named on the lease, mortgage, or does not own the home. (Be aware that this order does not require that Defendant continue to pay rent, or make mortgage payments on the residence.) List the address of the residence if Plaintiff and Defendant share it and Plaintiff wants Defendant to leave.
5. Check this box if Plaintiff requires the Court evict Defendant from the residence.
6. Check this box if Plaintiff requests the common household property to remain in the home at this time. (This will not include clothing, toiletries, or work items belonging to Defendant. Defendant can file an order in civil court separate from this requesting the household items)
7. Check appropriate boxes if Plaintiff is requesting that Defendant be restricted from specific locations. (Additional locations may be listed in the space available).
8. Check this box if Plaintiff is requesting that Defendant be denied contact with Plaintiff.
9. Check this box if Plaintiff requests possession of a vehicle belonging to Plaintiff and/or Defendant. (Be sure to list the make, year and model of the vehicle).
10. Check this box if Plaintiff is requesting temporary custody of the child(ren) listed in box #7 on the front. (The court must be informed if someone already has legal custody of the child(ren)).
11. Check this box if there is no child support order already in place and Plaintiff would like the court to consider this.
12. Check this box if Plaintiff is requesting the court deny Defendant possessing or purchasing any type of firearm.
13. Check this box if Plaintiff is requesting the court consider ordering Defendant to attend an abuser treatment program.
14. Check this box if Plaintiff is seeking any other relief. (Please list these items specifically).

A Domestic Violence Protective Order is not to be used as a means of obtaining the custody of children and the court tries to avoid this. Custody is usually given only when it serves to protect the child. Custody is generally not given in a temporary order. Any custody which is granted is temporary and must be pursued further in family court.

EX PARTE (AOC-CV-304)

1. Provide the name of the county where the forms will be filed.
2. Provide your name of Plaintiff.
3. Provide the name of Defendant.

Do not complete any more of this form. The judge will complete the form at the time you file.

AFFIDAVIT AS TO STATUS OF MINOR CHILD (AOC-CV-609)

If you listed child(ren) in box 7 of the Complaint and Motion for the DVPO, then you must complete one of these forms for each child listed.

1. Provide the name of the county where the forms will be filed.
2. Provide Plaintiff's first name, middle initial, and last name. (Plaintiff's address is not required if this information is to be kept from Defendant).
3. Provide the first name, middle name (or initial) of Defendant and his/her address.
4. Provide the full name of the minor child.
5. Provide the birthdate of the child.
6. Provide the county of the child's birth.
7. Provide, in chronological order, each place the child has lived, with whom the child has lived, and the present address of those persons. (List with the current address and work backwards accounting for the last 5 years).
8. Check this box if Plaintiff has been involved in any other custody matters concerning this child and provide requested information.
9. Check this box if Plaintiff has knowledge of another pending custody proceeding. Include the name and address of the court where the hearing is to be held and appropriate details.
10. Check this box if Plaintiff knows of any person having legal custody of the child and check appropriate custody or visitation rights box.

IDENTIFYING INFORMATION ABOUT DEFENDANT (AOC-CV-312)

1. Provide the name of the county where the forms are being filed.
2. Provide Defendant's full name and address.
3. Provide the requested information about the Defendant. If specific information is unknown to Plaintiff, leave blank.
4. Indicate whether Defendant has a driver's license, the state in which it was issued, and the license number, if known.
5. Provide Defendant's Social Security number, if known.
6. Provide Defendant's telephone number, if known.
7. Provide Defendant's current work information, if known.
8. Check this box if Defendant has a permit to purchase a handgun or crossbow and identify the state that issued the permit, if known.
9. Check this box if Defendant has a permit to carry a concealed handgun and identify the state that issued the permit, if known.
10. Check this box if law enforcement should consider Defendant a potential threat and specify reasons.
11. Provide the requested Plaintiff information. Date and provide Plaintiff's signature.

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FILING A DV PROTECTIVE ORDER

1. Obtain forms from the Clerk of Court's office.
   • Civil Summons - one white & 2 yellow
   • Complaint and Motion
   • Ex Parte
   • Identifying Information about Defendant
   • Affidavit as to the Status of Minor Child (one for each child for whom you and Defendant are parents, guardians, or custodians.)
2. Complete the forms.
3. Present completed forms Clerk of Civil Court for filing.
4. Following filing, the Clerk of Civil Court will provide copies for Plaintiff and copies to be served on Defendant.
   • Go to the your county Sheriff's Office where the Temporary Order can be entered. If Defendant lives in your county, Sheriff's personnel the copy to be served on Defendant.
   • If Defendant does not live in your county, Plaintiff will need to go to the Sheriff's Office and present forms in order that data may be entered in the police information computer.
   • If Defendant does not live in your county Plaintiff must give the copy to be served on Defendant to the Sheriff of the county where Defendant lives. (This may either be hand-delivered or mailed. If mailed, it is recommended that it be by Overnight or Registered mail.
   • A copy of the temporary order should be provided to Plaintiff's local Police Department in order that have a copy may be filed.
5. Plaintiff should make sure there are copies of the temporary order kept in easily accessable places, and also in locations where they may be needed. (Ex: Plaintiff's car, workplace, on Plaintiff's person, and in locations noted on the order - daycare, family members homes).

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PREPARING FOR A DV HEARING

At the Domestic Violence Protection Order hearing, a judge will consider Plaintiff's request and decide whether or not to sign it and put it into effect.

Plaintiffs may find the following resources useful in presenting requests to the judge:

1. POLICE REPORTS/ARREST RECORDS. Reports detailing incidents between Plaintiff and Defendant can be obtained from the police department that responded to the scene. The Police Department will only provide a cover sheet, however, which states that an incident took place. To receive a descriptive narrative Plaintiff should consult the Clerk of Court referencing subpoena of the record.
2. MEDICAL DOCUMENTATION. Records of injuries, emergency room and medical treatment, and any pictures of injuries resulting from the violence can be obtained from the care provider(s). Examples of useful documentation may be billing statements and/or medical records by the attending physician. If police took pictures at the time of the assault, Plaintiff should arrange to get copies.
3. WITNESSES. If others have witnessed violence by Defendant, or if they have heard Defendant make threats, they should be brought to the hearing.
4. RECORDS/EVIDENCE. Any recordings of telephone calls Defendant has made or logs tracking calls or other incidents, and any equipment necessary for presentation with you should be brought to the hearing.
5. AN ATTORNEY. An attorney is not required in order to obtain a Domestic Violence Protective Order. But, if Plaintiff believes Defendant will have an attorney present, or feels that legal assistance/representation would be beneficial, arrangements may be made to have an attorney present. If Plaintiff cannot afford an attorney, he/she may be able to obtain assistance from North State Legal Services. (1-800-672-5834)

Plaintiff's failure to be present at the hearing could result in the request for a Domestic Violence Protective Order being denied. If Plaintiff files a request for an DVPO and later decides that it is unwanted, he/she should still be present at the hearing to request that it be dropped.

If Defendant has not been served by the day of the hearing, or is not present at the first hearing date, the judge may decide to continue protection until another court date. This will require that Plaintiff come to court again.

WHAT TO EXPECT AT THE HEARING

All hearings for DVPO's are held at one time, and only DVPO requests are heard. Plaintiff may bring anyone with him/her needed for support and/or to assistance. It is up to the judge, however, whether or not they will be permitted to speak.

If Defendant is not present the judge will decide how to proceed. The judge may decide to reschedule the hearing and give Defendant another opportunity to be present, or to grant the DVPO. This decision will usually depend on whether Defendant has been served, how long after being served Defendant has had to prepare to come to court, and other factors the judge may consider important.

Either Plaintiff or Defendant may ask the judge to reschedule the hearing for good cause. Good cause may include needing more time for preparation, unavailability of witnesses, etc.

The judge may offer several options for resolving the case prior to the hearing. These may include giving Defendant the opportunity to agree to stay away from Plaintiff and to follow all of the rules outlined in the order without having a hearing. This is known as a "Consent Agreement." If Defendant agrees to this, the order is written by the judge and declared valid Without a Finding of Fact. This means that a finding of Domestic Violence is not entered into the record, but the need for protection remains. Defendant is ordered to stay away from Plaintiff and this agreement is an enforceable official court order.

If the judge decides that a hearing is necessary, it generally follows an informal process. Plaintiff will be asked to tell the judge what has happened, why he/she is afraid of expectations led requesting the order. (It might be helpful for Plaintiff list in chronological order beforehand the experienced incidents of threats or violence, what was said and/or done.)

After testimony is entered, Defendant will be given the opportunity to deny its truth and/or to explain why he/she does not think the order should be granted. It is at this time that Plaintiff would be able to present evidence, records, or witnesses. The judge will then make a determination as to whether a DVPO is necessary. If the judge grants a DVPO, it is said to be based on A Finding of Fact. In other words, a finding of Domestic Violence is entered into the record along with the DVPO.

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ADDITIONAL RESOURCES

For information on offenders monitored by the Statewide Victim Assistance and Notification system (NC-SAVAN): 1-800-627-2826. This system can provide you with information as to whether an offender is currently incarcerated, where, and when released. It can also notify you of an offender's release when it occurs.

Application for monetary reimbursement due to a Domestic Violence situation that resulted in medical expenses and/or lost wages, Crime Victims Compensation Commission, 1-800-826-6200. For application availability, the crime must have been reported to law enforcement within 72 hours.

**Information provided courtesy of the NC Magistrates Association