What is a Domestic Violence Protection Order (Restraining Order) and Who Can Get One?
A domestic violence protection order is the legal name of what many think of as a restraining order. In North Carolina there are two types of “restraining orders” and depending on your situation, you may only qualify for one type and not the other. The first type is a domestic violence protection order as defined by North Carolina Statute §50b and requires a special type of relationship to receive this type of protection. The other type of protective order is defined by North Carolina Statute §50C and it provides protection for people who may not share a domestic relationship but may work together or know each other from some other type of setting. A §50C protective order mainly covers stalking and nonconsensual sexual conduct. A §50C order is normally more difficult to get than a domestic violence order (§50B). Today I will be mainly talking about the §50B order and who can get this domestic violence protection order.
In North Carolina, the court procedure for getting a domestic violence protective order is as follows:
- File Your Complaint: this is where you file a court form that states your reasons for wanting a protective order.
- Ex Parte Hearing: Ex Parte just means one sided. This hearing usually happens the day you file your complaint, or the next court session if you file in the afternoon. It’s an emergency hearing to get a temporary order of protection for 10 days. You just state the facts to the judge and they will decide without testimony from the other party whether or not they think you deserve a protection order.
- Domestic Violence Protective Order Hearing: This is the hearing where you try to receive your actual protective order which normally lasts one year. You will have to properly serve the defendant, to give them notice of this hearing. Then you will most likely testify as to what happened and present any evidence you may have of the domestic violence the defendant caused.
So what is domestic violence? North Carolina law defines domestic violence as attempting or intentionally causing the victim bodily injury or placing the victim or a member of the victim’s family in fear of imminent serious bodily injury or continued harassment. There is a rather high threshold for harassment to qualify under North Carolina law. It’s more extreme behavior than the defendant continuing to bother the victim. Rape and other non-consensual sex offenses are also acts of domestic violence if a domestic relationship is present.
The very first thing that people may fail to understand about a domestic violence protective order is that it stems from a fear of violence or injury. If that person is calling you and you want them to stop, this may not be the correct legal remedy. Instead, if you have a real subjective fear that the other person may harm you in the near future then you should try to get a protective order. There are some cases where continued harassment rises to a certain level to qualify under this statute but it’s normally in connection with that harassment putting the victim in fear of being injured.
The first thing the court will look at to issue a domestic violence order is whether or not the plaintiff and the defendant share one of the special types of relationship listed in the §50B statute. This statute covers people who are:
- current or former spouses
- those in a dating relationship (of the opposite sex only)
- people related as parents and children (or grandparents)
- current and former household members.
This is a very general overview of the types of relationships covered in §50B and is by no means an exhaustive list, but it should give a general idea. It is important to note that homosexual couples are not covered under the “dating” relationship but normally can get in as either current or former spouses or people that have lived together. The courts have taken a broad view on what is “living together”, so a person from a same-sex couple should still be able to get a protective order even if they are not living together by society’s normal standards.
It is also important to note that not all protective orders are taken out by a woman against a man. As I stated before, many types of relationships can qualify for this type of order. You can have a man take a protective order out on a man, a man take a protective order out on a woman or a woman being protected from another woman. Just because the victim is a man or larger than the woman does not mean he is not entitled to protection. These orders are based upon the subjective fear of the victim. So even if the defendant is 5’2” and 100 pounds and the victim is a 300 pound lineman, that lineman is still entitled to the protective order. It doesn’t matter how things look, but instead if there is an actual fear of harm.
The next thing the court will consider is recent acts of domestic violence against the victim. The key word here is recent. If something happened two years ago you may be able to bolster your case using that as evidence, but there needs to be at least one recent act of domestic violence.
So to summarize, in order to get a domestic violence protective order you must 1) have one of the qualifying types of relationships 2) there must have been a recent act of domestic violence or extreme harassment, and 3) you must actually fear for your safety or fear that the other person will try to harm you.
If you are a victim of domestic violence your first priority should be your safety. A protective order is not a physical barrier that will stop the abuser from attacking you. It is a legal remedy to hopefully help aid in protecting you. There are many local organizations that help victims of domestic violence develop a safety plan and sometimes even obtain protective orders. A great organization in the Charlotte area is Safe Alliance, their website is www.safealliance.org.
Please contact our office at 980-225-1832 or email at Info@DuncanLarsonLaw.com to set up a low-cost consultation if you have questions about your domestic violence case or a related family law issue.