A restraining order refers to a court order issued by a judge that prevents someone from doing something. In some cases these court orders will forbid them from contacting or interacting with the person who requested the restraining order. If domestic abuse is involved, it can prevent the abuser from living within a certain distance of that person, or even from purchasing a firearm.
There are several different types of restraining orders depending on the situation they’re needed for. In North Carolina, there are two different kinds of restraining orders, a Domestic Violence Protective Order (DVPO) or a civil no-contact. In this article we’ll go over these two types, and also provide a step by step guide for how to have a restraining order issued.
Types of Restraining Orders
A Domestic Violence Protective Order, which is intended for victims of domestic violence. The judge can give specific protection for victims, but in this case law enforcement can enforce the order. If the offender violates it they can be charged. This restraining order only be filed against someone the victim has a personal relationship with.
A civil no-contact order is for victims of stalking and sexual assault who don’t have a relationship with their offender. It will protect the person from unwanted, nonconsensual sexual contact from a coworker, acquaintance, neighbor, stranger or any other person who isn’t a member of their family.
With this type of restraining order, judges can determine specific protection for victims, but it differs from a DVPO because law enforcement doesn’t have full ability to enforce it.
Domestic Violence Protective Orders (DVPO) (“50B orders”)
A Domestic Protective Order is also known as a 50B order. This is because it has been authorized by the North Carolina General Statutes Chapter 50B. An order of this type is usually issued for one year, but it can be renewed for an additional year.
This is a Class A1 misdemeanor in North Carolina and violating this type of an order is a serious offense. The person who violates this order can be put in jail for a maximum of 150 days and also may have to pay a fine.
Domestic violence occurs in North Carolina when someone that a person has or had a personal relationship causes bodily harm intentionally, or causes bodily injury to them, or to a minor child. The abuser may have also placed the person, a member of the household or the family in fear of severe bodily injury or harm.
They may continue to carry out threats of harassment to a level that it inflicts severe emotional stress, or they may have even commit a type of sexual offense or rape.
A Domestic Violence Protection order can restrict the abuser from doing certain things. It also gives the person who filed the request certain rights, depending on what the facts of the case are. The protective order can order the abuser not to threaten, abuse, follow, assault, or harass the victim.
It can prevent them from contacting the person at work, in person or by any other means. It prevents the person from interfering with the filer and/or the children. The order may require the abuser to move out of a shared home and not return, no matter whose name is on the mortgage or rental agreement.
It can also force the abuser to provide suitable temporary housing for the person who filed. They police may be have to remove the abuser from the property, which will allow the person who filed to return home. The victim may then be granted back their personal property, including a car and personal belongings.
The DVPO can order the abuser to stay away from places the victim doesn’t want them to be. This might include the children’s school, work, homes of friends and family or anywhere the victim is seeking shelter.
It can order the abuser not to harm any pets, give the victim temporary custody of a minor child, and order the abuser to pay child support and attorney’s fees. If the abuser is the parent of the child, it can establish temporary visitation and have the abuser pay temporary child support.
It can make the abuser hand over any firearms and prevent them from purchasing any new ones. The DVPO can also force an abuser into a treatment program.
Civil No-Contact Orders
A Civil No-Contact order could be granted under Chapter 50C or Chapter 50D of the North Carolina Statutes. This order provides a person protection from stalking or nonconsensual sexual conduct from a stranger, acquaintance, coworker, neighbor or any person who isn’t a member of the family. A 50D order provides a person protection for victims of registered sex offenders.
In North Carolina, nonconsensual sexual conduct refers to intentional sexual acts that aperson doesn’t consent to. When someone repeatedly harasses or follows a person with the intent to cause fear for the safety of the person or their family, or causes emotional distress, that is stalking.
A Civil No-Contact order can prevent the respondent from doing many things, such as assaulting, molesting, visiting or interfering with the victim in any way. It will prevent the abuser from contacting the victim via written communication, electronic means, by telephone, or on social media websites.
This order will stop the respondent from injuring or abusing the person, and from or stalking or harassing the person in places including the workplace.
It will force the abuser to stay away from the workplace, residence, school or any specific place that the victim is present. The abuser will be prevented from doing anything the court thinks may compromise the safety of the victim. The respondent will also be forced to pay all legal fees.
Civil No-Contact Orders for Victims of Registered Sex Offenders
If a person lives in North Carolina and is the victim of a sex offense or a similar crime done by a registered sex offender, that person may be able to file a 50D civil no-contact order. For this type of restraining order the abuser has to be convicted of an offense and then also has to be registered as a sex offender. A 50D no-contact order can also be filed on behalf of a minor child or an adult who is incompetent.
Sexually violent crimes are crimes that necessitate an offender to be registered as a sex offender. These crimes include sexual battery, forcible rape of an adult or child, sexual exploration of a minor, and statuary rape. There are other violent crimes, such as felony peeping, that are sexual in nature. There are also nonsexual offenses against a minor such as felonious restraint, abducting a child, and kidnapping.
If the abuser was convicted in federal court or in another state, the victim could still be eligible to file for a 50D order. This is as long as the offense was similar to the crimes that are registered in North Carolina. To get this type of order, the person needs to prove the abuser had committed a sexual offense against them.
The person also has to prove that they did not seek a permanent no-contact order through the criminal court. The person has to prove they are afraid the abuser will contact them in the future, that the abuser had received notice of the case, and either answered the complaint and had notice of the hearing, or didn’t respond to the complaint.
A 50D protective order can restrict the abuser from threatening, adulting, molesting, visiting, or otherwise interfering with the person. They will be prevented from following the person, including at the workplace where the person is employed.
They won’t be allowed to harass, abuse, or injure the person. They’ll be forbidden from contacting the victim by written communication, electronic means, or telephone.
They won’t be allowed to visit or enter the person’s residence, place of employment, school or other specified places the person is present. And they may be prevented from doing anything else the judge thinks is appropriate and necessary based on the facts of the case.
Steps to File a Restraining Order
There are several steps to filing a restraining order. It can be intimidating, but the laws in North Carolina are in place to protect people from abusers. Below are the steps of how to file a restraining order:
1. Go To the Courthouse
The first step is filing paperwork of the needed forms. Forms can be found at the magistrate’s office or the office of the clerk of civil court. Tell the clerks what’s required and why it’s needed, then they’ll give out the required paperwork. Just remember, the clerks can’t give legal advice so the forms will need to be filed without their assistance.
2. Fill Out the Complaint Forms
Filling out the complaint form is the next step, and the person filing (the victim) needs to put themselves down as the plaintiff. The abuser is the defendant. A complete and detailed description will be required as to why the restraining order is being submitted. The abuse needs to be outlined with specific dates, details, and explicit language.
The judge needs to understand how dangerous this person is and the extent of the abuse. Temporary custody needs to be requested if there are children involved. Fill out the complaint but don’t sign it unless there’s a notary public or clerk of court present.
The victim can also seek a temporary order known as a ex parte. This is an emergency order that takes effect immediately to ensure protection for the person and any minor children. It can be requested by checking the box on the complaint form.
The victim will need to keep the order with them at all times. Copies can be made for work, school, daycare or with any relatives. This order will last ten days and takes effect immediately.
3. Fill Out the Summons
The abuser will need to be served a summons for the next step. The abuser’s name, address and a physical description will be required.
Also the driver’s license, social security number, name, and address of employer, and if they have a permit to carry a firearm. The sheriff will serve the papers, not the victim, so there won’t be any contact between the filer and the abuser.
4. Go To the Hearing
The person filing will receive a date and time for the hearing once the complaint and summons are filed. The hearing date will be within ten days of the complaint being filed. The filer needs to attend the hearing and an attorney for representation is a wise move. An attorney will move through the steps and gather the required documentation to show the court what acts of violence have been committed.
The judge will review all the information before a decision is made whether unlawful conduct happened. If the judge decides that the information is correct, a final protective order will be granted.
Summary & Next Steps
Undergoing something as serious as a restraining order should be dealt with by an attorney. There are many forms to fill out, which can get overwhelming or complicated, so having an experienced attorney can make this process a lot easier.
Although there aren’t any fees when filing a restraining order, and having an attorney isn’t required, knowing that the paperwork is filed correctly can take off some of the pressure.
Plus, there will be a court hearing where it will have to be proven that the abuser committed serious acts that warrant a restraining order. A compassionate and experienced family law attorney can take care of this emotionally charged situation. If extra time is needed to find an attorney, the court can be asked for a 10-day extension if good cause is shown.
If the victim fails to attend the hearing, the ex parte order will expire. Then if a restraining order is still necessary, a new complaint and summons will need to be filed. A protective order will last for one year from the date the court grants it, but an extension of the order can be filed if needed.
Note that if you file a DVPO and move to a different state, it will still be enforceable even if you don’t register it in your new state. Since some states have different rules, it’s a good idea to find out what they are. The arrangements you made with custody, child support, and visitation, are also enforced from state to state. These are federal requirements.
If you move to North Carolina from another state, you can register the restraining order with the Superior Court in your county.
You’ll need a copy of the protection order, and also fill out two forms: the Request and Affidavit to Register and Registration of Out-of-state Domestic Violence Protective Order form, and the “Identifying Information About Defendant Domestic Violence Action” form. You can download both of them here.
Filing a restraining order is something no one ever wants to do, but finding a local attorney can greatly help you deal with this stressful process. So hopefully this difficult situation can be solved and you will be able to move on. Find a lawyer near you here.