Protective Order – 50B
A. A Domestic Violence Protective Order (sometimes commonly referred to as a “restraining order” or a “50B order”) is a restraining order that is designed specifically for victims of domestic violence to give them the protection they need from the abuser. It is different from a general restraining order because it allows a judge to order more specific forms of protection for a victim and law enforcement also has the power to enforce it by charging an abuser criminally if the abuser violates the DVPO.
A. In order to file for a DVPO against the abuser, you must have a “personal relationship” with the abuser. North Carolina law defines only certain categories of relationships as meeting the definition of a “personal relationship” for the purpose of being able to file a DVPO. Below are the current categories:
- Are current or former spouses;
- Are persons of opposite sex who live together or have lived together;
- Are related as parents and children, including others acting in loco parentis to a minor child, or as grandparents and grandchildren. For purposes of this subdivision, an aggrieved party may not obtain an order of protection against a child or grandchild under the age of 16;
- Have a child in common;
- Are current or former household members;
- Are persons of the opposite sex who are in a dating relationship or have been in a dating relationship. For purposes of this subdivision, a dating relationship is one wherein the parties are romantically involved over time and on a continuous basis during the course of the relationship. A casual acquaintance or ordinary fraternization between persons in a business or social context is not a dating relationship.
Although domestic violence occurs at the same rate in same sex dating relationships as in opposite sex, currently NC law does not allow for same sex dating partners who have never been household members and who are not or have not been married to each other to file for a DVPO. If you are a victim of domestic violence in a same-sex dating relationship and don’t qualify for a DVPO, you may be able to file for a different type of restraining order called a “Civil No-Contact Order” or a “50C.” Click here for more information
A: No. It is free to file for a 50B.
A: North Carolina law requires that the person requesting the DVPO (the Plaintiff), prove that s/he has been the victim of “domestic violence.” The law defines “domestic violence” for the purpose of obtaining a DVPO as:
- Domestic violence means the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the aggrieved party has or has had a personal relationship, but does not include acts of self-defense:
- Attempting to cause bodily injury, or intentionally causing bodily injury; or
- Placing the aggrieved party or a member of the aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment, as defined in G.S. 14-277.3A, that rises to such a level as to inflict substantial emotional distress; or
- Committing any act defined in G.S. 14-27.2 through G.S. 14-27.7. (Note: These are the statutes that criminalize rape and sex offenses)
A: If a judge grants you a DVPO, the judge has many options for types of “relief” or specific things the judge can order as part of the DVPO. The most common types of relief include:
- Ordering the abuser to have no contact with you
- Ordering the abuser to refrain from threatening, abusing, following, harassing, or otherwise interfering with you or your minor child(ren)
- Ordering the abuser to not threaten your family or household member
- Granting you temporary possession (not ownership) of a residence and excluding the abuser
- Ordering the eviction of the abuser from the residence and assisting you in returning to it
- Ordering the abuser to not cruelly treat or abuse an animal
- Granting you possession (not ownership) of an animal
- Ordering the abuser to stay away order from certain places such as your residence, workplace, school, your children’s daycare or school, or to stay a certain distance (ex. 500 feet) away from you at all times.
- Granting you temporary possession (not ownership) of a vehicle
- Prohibiting the abuser from possessing or purchasing a firearm
- Ordering the abuser to surrender current firearms and ammunition
- Ordering the abuser to complete a certified batterer intervention program
- Ordering temporary custody of minor children and establishment of visitation rights
- Ordering any additional prohibitions or requirements deemed necessary to protect you
A: The judge will listen to all the facts and apply the law. The judge has to determine that you 1) have a personal relationship with the abuser and 2) have suffered an act of domestic violence. The judge has to find these things by a “preponderance of the evidence” which is a legal term that means the judge has to believe it is more likely than not that these things are true. It is the Plaintiff’s responsibility or burden to prove these things to the judge.
A: Each case is different, and oftentimes victims want to consult an attorney for assistance in proving their case. However, everyone has a right to file a DVPO on their own and represent themselves. Typical types of evidence that might be presented in a hearing include:
- Testimony from other witnesses such as law enforcement who responded to 911 calls for help, neighbors or friends who have witnessed the abuser’s actions or have seen your injuries or others who can corroborate the abuser’s domestic violence towards you
- Phone records
- Medical records
- Social media posts
- Text messages
A: If you do not have the financial ability to hire an attorney, Legal Aid of North Carolina might be able to assist you. Legal Aid of North Carolina is a statewide program, which provides free legal services in civil matters to low-income persons. One of their priority civil cases is Domestic Violence Protective Orders. However, due to funding cuts, Legal Aid often does not have the resources to serve every low-income victim who needs representation in their Domestic Violence Protective Order case. You can find out if you are eligible and if Legal Aid has the resources to represent you by calling Legal Aid’s intake line: 1-866-219-5262.
In addition, many of the community-based domestic violence agencies may have legal resources- whether it is a direct referral program to their local Legal Aid office, relationships with other attorneys in the community who are willing to represent victims for free or low cost, or occasionally who have attorneys on staff. You can find the number to your community-based domestic violence agency here:http://www.councilforwomen.nc.gov/displayprograms-dv.aspx.
If you have the financial means to hire an attorney, the NC Bar Association offers a Lawyer Referral Service. You can learn more about this service on their website: http://www.ncbar.org/public-resources/find-a-lawyer/ or call the referral service number at 1-800-662-7660. Finally, you have the right to file for a DVPO yourself, without an attorney. Filing without an attorney, or representing yourself, is called “pro se.”
A: You can file a DVPO in the civil clerk’s office in the county where you reside, the county where the act of domestic violence occurred, or the county where the abuser resides. You can locate the phone number to the civil clerk’s office in your county by using the Administrative Office of the Courts website: www.nccourts.org, selecting “Courts,” selecting “Court Information by County,” selecting your county, and then selecting “Court Telephone Directory” on the left-hand side. This usually brings up a list of phone numbers, including the clerk’s office, magistrate, district attorney, and other numbers for court personnel. You can also find the address to the courthouse in your county using this link: http://www.nccourts.org/Courts/CRS/NCMap/Courthouse.asp. However, every county has local practices that determine when judges are available to accept filings, whether other court officials such as magistrates can also accept filings etc. Therefore, you might call the clerk’s office before going to the courthouse to try to learn more information about the process in your county. In addition, you can seek support from the community-based domestic violence agency in your county which employs advocates knowledgeable about the local practices and who can often provide court advocacy through the process of filing for a DVPO. For instance in Alamance County, victims can file electronically from the community-based domestic violence agency rather than having to go to the courthouse at all.
A: When you go the clerk’s office or the community-based domestic violence agency, you will be given the necessary paperwork to complete. The Administrative Office of the Courts has produced an “Instructions for Domestic Violence Forms” (AOC-CV-303): (English: http://www.nccourts.org/forms/documents/220.pdf; Spanish: http://www.nccourts.org/forms/documents/1640.pdf) where you can read about the forms you will need to complete. Each of these forms can be accessed individually online through the AOC’s website at www.nccourts.org by typing in the form number in the box (for example, type “AOC-CV-303” into the search bar to get the instructions). In addition to the forms listed in the instructions, you will need to have an Affidavit under the Servicemembers Civil Relief Act, which is AOC-G-250. Although the deputy clerks and the advocates at community-based agencies both can provide these forms and are able to try to explain the court process, they are not attorneys and will not be able to provide legal advice on what you should include on the forms or what is best to write.
A: A judge (or magistrate depending on the county) will review the paperwork you filed and why you believe you need a DVPO. The judge will then decide based on the facts you presented and the law whether s/he is able to grant you a DVPO. This first stage is often called “ex parte” because the abuser is not present. If the judge grants you the order, the Sheriff’s department in your county will be responsible for “serving” the abuser with the DVPO. The abuser doesn’t have to follow the order until the abuser is served with the paperwork- because that is when the abuser “officially” knows about the order. Because the abuser is not present when you ask the court for your initial DVPO, this first DVPO is very short-term and the judge must set a court date for you to return within 10 days so that the abuser has a chance to be present. Our court system values each person’s right to come to court and tell his/her side of the story. When you return to court, you have the opportunity to ask the judge to keep the DVPO in place for up to one year. Even if the judge doesn’t grant you the initial DVPO, you will have the choice whether to dismiss your complaint for a DVPO or whether you want to come back with the abuser present and try a second time to ask the judge for a DVPO that lasts for up to one year- but you will not have a DVPO during the time when you initially asked for one and when the hearing is- so you will not be protected during that time in between.
A: If the abuser has not been served with the DVPO when you return to court then the judge will have no choice but to continue the case for the Sheriff to try again to serve the abuser. The judge cannot grant you a one-year order until the abuser has been served with the DVPO, has notice that you have filed this restraining order against him/her and has an opportunity to come to court to tell his/her side of the story. It can be very frustrating for victims to have to repeatedly take off work or make other arrangements to come to court and the abuser not be served. You can help the Sheriff locate the abuser by providing as much detail as possible on the “Identifying Information About the Defendant” form (AOC-CV-312), including where the abuser works, lives, hangs out, etc. In addition, in between the court dates, if you know where the abuser is at a particular time and you know that the abuser will be there for a least an hour or two, you can call the Sheriff’s department and inform them of the abuser’s location and that there is a DVPO that needs to be served on him/her. These things will assist the Sheriff’s department in locating the abuser to serve the necessary paperwork.
A: If the abuser was served with the DVPO, then s/he had notice of the DVPO and knew to come to court. Therefore if the abuser doesn’t come to court, the Judge will just hear from you. The judge will still listen to the facts you present and apply the facts to the law. If you were initially granted the Ex Parte DVPO, and the abuser was served and does not appear, the judge will almost certainly grant you the DVPO at the return hearing and the terms you request if your requests are reasonable.
A: Although practices differ some from county to county, in almost every circumstance, if you do not appear for your return hearing, the Domestic Violence Protective Order (DVPO) that you filed against the abuser will be dismissed. If you have any questions about the practice in your county, or you have extreme circumstances, you can call the clerk’s office in your county. You can find the number to the clerk’s office in your county by using the Administrative Office of the Courts website: www.nccourts.org, selecting “Courts,” selecting “Court Information by County,” selecting your county, and then selecting “Court Telephone Directory” on the left-hand side. This usually brings up a list of phone numbers, including the clerk’s office, magistrate, district attorney, and other numbers for court personnel. However, you should expect that if you cannot appear at the return hearing, the case will be dismissed since you filed the DVPO and you are not appearing in your own case.
A: You have a right to tell the judge whether you agree to a continuance or object to a continuance, but the judge is the one who decides whether or not to continue a case. The judge has to consider what is fair to both people, not just you, even if you are the victim. Oftentimes if the abuser wants a continuance, the judge will grant one, even if you object, especially on the first return hearing. This is because the short period of time between when the abuser is served with the DVPO and when the court date is scheduled does not allow very much time for someone to do things such as hire an attorney or prepare a defense. Although it’s possible that a judge will deny an abuser’s request for a continuance, you should be prepared for the possibility that the judge will continue the case if the abuser requests it. Although the judge, together with the clerk of court, will choose the date to reschedule the case, you have the right to tell the judge if certain dates are more convenient for you or certain dates absolutely won’t work in the hopes that the judge and clerk can take that into consideration when rescheduling the case. In almost all cases, if you were granted an “ex parte DVPO” originally, the judge will keep your DVPO in place so you will still protected by the restraining order until the next hearing. In addition, the law states that “A continuance shall be limited to one extension of no more than 10 days unless all parties consent or good cause is shown.” Therefore, if the abuser tries to get a second continuance and you object, the judge has to find “good cause” before the judge will continue the case. What is considered “good cause” is up to each judge.
A: You can always ask the judge for a continuance. The abuser has a right to tell the judge whether he/she agrees to your continuance or objects to the continuance. The judge is the one who decides whether or not to continue a case. However, if the abuser is objecting to your continuance, the judge may decide to deny your request to continue the case and tell you that you must proceed that day. This is often because the abuser has a restraining order against him/her that is “one-sided” because it was granted after only you told your side. The judge has to consider what is fair to both people and the judge might believe it is unfair to continue the case and allow you to keep a one-sided order when the abuser is there and asking to have his/her side heard.
A: No- you don’t have to have a trial if the abuser “consents” or agrees to the DVPO. Sometimes abusers are willing to agree to the terms of the DVPO, particularly to orders that are entered “without findings of fact and conclusions of law.” These are orders which don’t state specifically what the abuser did to you that was domestic violence. Rather the order simply says that the abuser agrees that you are entitled to a DVPO and that he/she agrees to the terms of the order and that it is enforceable.
A: There is a wide variety of local practices in every district so it is impossible to say exactly how hearings will be held in your county. However, some things about hearings, or “trials” are typically the same. Because it is your case, as the Plaintiff, it is your job to “prove” the case to the judge. You will need to prove that it is “more likely than not” that you have a “personal relationship” with the abuser and that the abuser committed an act of “domestic violence” against you or your minor child.
You will put your evidence on first, starting usually with you taking the stand and testifying about what has happened. You will testify about what you wrote in your complaint and anything else that is relevant to the abuser’s actions towards you that show you are afraid of him/her and that he/she committed an act or acts of domestic violence toward you. After you finish testifying, the abuser, or his/her attorney if the abuser has one, will have the opportunity to ask you questions. This is called cross-examination. When you take the stand, you swear to tell the truth. Therefore, you should always answer questions honestly, even if you think it will “make you look bad.” After the cross-examination, the judge will usually give you a chance to say anything else you want to follow-up on.
After you testify you have the opportunity to present any other evidence to help prove your case, such as other witnesses. In addition, if you have evidence such as photos, videos, voicemails, text messages, social media messages, etc. those are considered evidence and you should try to present them to the court during your testimony as well. There are many rules the judge has to follow about what types of testimony and evidence the judge is allowed to consider. Therefore there may be times when the judge has to tell you that you can’t talk about certain things or the judge can’t look at something you brought. The judge is not trying to be mean, but is trying to follow legal rules that you may not be familiar with.
After you are done presenting all of your evidence, the abuser has a chance to present his/her evidence in the same way. You will have a chance to ask any of the abuser’s witnesses (including the abuser if the abuser testifies) questions on cross-examination. You must ask questions, and cannot argue with the abuser or the abuser’s witnesses during this time. After the abuser is done presenting his/her case, the judge may give you and the abuser (or abuser’s attorney) a chance to make a “closing statement.” If the abuser put on any evidence, then you can decide to make your closing statement last- that way you can hear what the abuser argues first before you argue to the judge. The closing statement is very short, usually only 5 minutes or less, and is a chance for you to summarize for the judge why you proved your case and should be granted a DVPO. After the judge has heard all of the evidence and closing statements, the judge will consider everything s/he heard and decide whether to grant you a DVPO, and if so, what specific terms are appropriate.
A: Once the judge determines you have proven your case, the judge has to decide which specific protections she/he will grant you as part of the DVPO. A judge has a variety of legal options or “remedies” that the law allows that the judge can put in place to protect you and your children. The judge will only put protections in place that the judge feels are reasonable and are necessary for your protection and to make the domestic violence stop.
A: The judge can grant you a DVPO for up to one year from the date of your return hearing. In most circumstances, when a judge grants a DVPO, s/he typically grants it for a full year. However, the judge can order the DVPO for less than a year (for example, 6 months) if the judge feels for some reason that the DVPO is not needed for an entire year. It also means that you can ask that the order be in place for less than a year if for any reason you want the order in place for less than a year. But one year is the longest the judge can issue the original DVPO under any circumstance.
A: There is no one right option for what to do when an abuser violates a DVPO. But if the abuser violates the DVPO, you have several legal options for enforcing the DVPO. One of the unique powerful tools that a DVPO grants you is that it is enforceable by law enforcement. A violation of the order is at a minimum, an A1 misdemeanor (the most serious misdemeanor crime in NC), and in some circumstances, a felony. Therefore you have the option of reporting the violation to law enforcement (see more about your rights under criminal processes).
However, there are many reasons why sometimes victims do not want to involve the criminal justice system. You also have the option of trying to enforce the DVPO by going back to civil court yourself and asking that the judge hold the abuser in either civil or criminal contempt of court. Similar to when you filed the original DVPO, you will need to go the civil clerk’s office in your county to get the appropriate paperwork to complete. The Administrative Office of the Courts has developed a form for you to fill out and file with the clerk’s office called a “Motion for Order to Show Cause Domestic Violence Protective Order” (AOC-CV-307). The second page of this form gives you instructions on how to complete this form. This form has to be notarized before it can be filed with the clerk’s office, so if you have access to the internet and a printer, you may want to print it out, complete it, and have it notarized before you go to the clerk’s office in order to save yourself multiple trips. You can access the form here: http://nccourts.org/Forms/Documents/228.pdf. Further, our laws do not allow an abuser to both be convicted of a criminal violation of a DVPO and also to be held in contempt of court for the same behavior. Therefore, you will have to choose which method you want to use to enforce the order since you can’t do both.
A: Yes, you can file a motion and ask the judge to renew the DVPO. Similar to when you filed the original DVPO, you will need to go the civil clerk’s office in your county to get the appropriate paperwork to complete. The Administrative Office of the Courts has developed a form for you to fill out and file with the clerk’s office called a “Motion to Renew a Domestic Violence Protective Order” (AOC-CV-313). You would complete this form, stating the reasons you wish to renew the DVPO. The motion to renew the DVPO will then be set for a hearing before a judge. The abuser will be mailed notice of the hearing. It will be up to the judge whether or not to renew the DVPO. This time when the judge is considering whether to keep the DVPO in place, the judge determines whether there is “good cause” to renew the DVPO. The judge can find good cause, even if the abuser did not violate the DVPO. In addition, the DVPO can be renewed for up to 2 years. If you want to renew your DVPO, it is very important that you file the motion to renew it BEFORE your current DVPO expires. Clerks offices usually recommend filing the motion approximately one month before your current DVPO expires- but it is probably best to check with your local clerk’s office. You can locate the phone number to the civil clerk’s office in your county by using the Administrative Office of the Courts website: www.nccourts.org, selecting “Courts,” selecting “Court Information by County,” selecting your county, and then selecting “Court Telephone Directory” on the left-hand side. This usually brings up a list of phone numbers, including the clerk’s office, magistrate, district attorney, and other numbers for court personnel.
There is no limit to how many times you can renew your DVPO, as long as a judge finds there is good cause. If the order expires before you file your motion to renew, you will no longer have a DVPO in place. You would need to file a new complaint for a DVPO and start the process over again if your previous order expires. In addition, if your old DVPO expired and you are filing a new complaint, the court will likely require that some new act of domestic violence has occurred since the time the court entered the last DVPO in order for you to get a new DVPO.
A: You should allow plenty of time to arrive at the courthouse, find parking, get through security, find the courtroom, and be seated before the time court starts. You want to be sure you are there before they start calling the calendar of cases. Courtrooms are formal and you should dress as if you were attending church or some other formal occasion. If at all possible, find childcare for your children unless they are necessary to the case. Courtrooms are generally not appropriate places for children and judges often will ask that they not be inside the courtroom, particularly domestic violence courtrooms due to the sensitive matters that are discussed. When your name/case is called you should stand up and speak loudly and let the judge know that you are present. You should always stand when talking to the judge. You should be respectful of the judge and all court personnel even when you do not agree with them. There is typically a deputy/bailiff in the courtroom. Therefore if the abuser violates the order, speaks to you, threatens you, or tries to intimidate you in any way, you can speak to the deputy/bailiff about your concerns for your safety. You can also speak to the deputy/bailiff to request an escort to your car after you are finished in court.
A: Sometimes victims reconcile with their partners after a DVPO has been put into place. This happens for a range of reasons, from victims hoping that an abuser has changed, to a desire to keep families together, to victims being forced by their abuser through threats or power and control tactics. Regardless of the reason, we would encourage any victim who is considering reuniting with an abusive partner to work with their community-based domestic violence agency on safety planning. If you want to have contact again with the person who you currently have a DVPO against, the Administrative Office of the Courts provide a form for you to fill out and file with the clerk’s office called a “Motion to Set Aside a Domestic Violence Protective Order” (AOC-CV-313). You would complete this form, stating the reasons you no longer want the DVPO in place. The motion to set aside the DVPO will then be set for a hearing before a judge. It will be up to the judge whether or not to set aside the DVPO and allow your former partner to have contact with you again. Until a judge rules, your former partner is still subject to the DVPO. You can’t give him/her permission to violate the order and law enforcement can and will still hold him/her accountable to the order.