Victims
of domestic violence are protected
in our state under Chapter 50B
of the North Carolina General
Statutes. This is known as the
Domestic Violence Act. Section
50B-1 defines domestic violence
as follows:
-
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 bodily
injury or
continued harassment that
rises to the level as to
inflict
substantial emotional distress;
or
-
Committing the criminal acts
of first and second rape, and
first and second degree sexual
offense.
Our
state domestic violence statutes
protect you against physical
abuse and the threat of physical
abuse. If you are placed in
fear of imminent or immediate
bodily injury by certain persons
related to you, then you are
a victim of domestic violence
just as much as if you had
been punched and thrown to
the floor.
Acts
of domestic violence also
constitute the crimes of
assault and battery under
our state criminal statues.
If convicted, your abuser
will face criminal penalties.
No, marriage to your abuser is
not a requirement to bringing
an action against him or her
under the Domestic Violence Act.
A victim of domestic violence
can be related to his or her
abuser in different ways. Following
is a list of persons who, if
related to you and committing
violent acts against you, can
be guilty of domestic violence:
- A current or former spouse;
- A person of the opposite sex
who has lived with you or
is living with you;
- Persons who are related
as parents and children or
as grandparents
and grandchildren (You may
not, however, obtain an order
for
protection against a child
or grandchild under the age
of 16.);
- A person who is the parent
of your child;
- A current or former household
member; and
- A person you are dating
or have dated.
Children are also protected
from domestic violence from
their parents, or live-in partners
of their parents, or any individual
who is acting as their parent.
What should I do if I am a victim of domestic violence?
If you, or members of your family, are in real
physical danger from your abuser, then call the
police. You can also contact your county domestic
violence agency or local mental health center for
information on local shelters if you believe an
emergency exists and you must to leave your residence
as soon as possible. Both of these organizations
can also give you general advice on what measures
you should take to deal with the threat of domestic
violence in your home.
Unless you are in immediate and real danger,
it is advisable to consult with a family law
attorney before you leave your house and essentially
give up its possession to your abuser. Once you
have left possession of your residence to your
abuser, it may take considerable time or be to
regain possession of your residence through legal
actions.
The police must respond to requests for emergency
assistance in domestic violence cases as soon
as it is possible. There is one exception to
this general rule. If there have been a number
of complaints from the same person within a 48-hour
period and police have good reason to believe
that no emergency exists, the police are not
obligated to respond as soon as it is possible.
If the police do come to your home, they are
entitled to take whatever steps are necessary
to protect you from immediate harm. They can
arrest your abuser on the spot if the police
witness an act of domestic violence. If the police
do not witness an act of domestic violence, then
you will have to go to the magistrate’s
office or the county courthouse to press criminal
charges or file a civil action for a protective
order.
The police can also give you advice on local
shelters, counseling services and medical care.
The police may transport you or your children
to appropriate shelter facilities, a hospital,
or magistrate=s office to file for a domestic
violence protective order. The police can accompany
you into your home in order to remove personal
items for you and your children.
When you are safe, you can proceed to file for
a civil action for a domestic violence protective
order and/or file criminal charges against
your abuser for assault and battery. If you
file criminal charges, you will go to the magistrate=s
office. The magistrate will listen to the facts
and issue a criminal summons or warrant for
your abuser if the magistrate is convinced
that an act of domestic violence took place.
The summons will order your abuser to appear
in court on a particular date. A warrant obligates
the police to arrest your abuser and take him
or her before a judge or magistrate for a bond
hearing and to set a trial date. If your abuser
can post bond, then he or she will be released
until the trial. You can also request at this
bond hearing that a domestic violence protective
order be issued to protect you from you abuser
during the interim period before the trial.
If you need a protective order, then you should
demand that the magistrate inform you of the
bond hearing date and attend that hearing.
At the bond hearing, you should ask the court
to prohibit your abuser from assaulting you,
coming to your home or workplace, damaging
your property, or any other form of protection
that you believe should be made part of your
protective order.
If you file a civil action, you may hire an
attorney or represent yourself. In the latter
case, you should seek assistance from your local
Clerk of Superior Court to guide you in completing
and filing your Complaint and Motion for a Domestic
Violence Protective Order. This is a printed
form prepared by the Administrative Office of
the Courts (AOC) and available through the Clerk
of Superior Court. To complete it, you will fill
in the blanks providing detailed information
about yourself, your relationship to your abuser
and the acts of domestic violence. You are also
able to indicate on your complaint and motion
the relief that you want from the court. Please
refer to domestic violence
forms for a preview
of the Complaint and Motion for Domestic Violence
Protective Order and other forms filed with the
court in domestic violence cases as well as a
page of general instructions on completing the
forms.
What kind of protection will I get from the court
if I file a Complaint and Motion for a Domestic
Violence Protective Order?
Your Complaint and Motion for Domestic Violence
Protective Order allows you to choose among different
types of relief to request from the court. You
can request any or all of the following relief:
- Emergency relief;
- An ex parte order before notice of a hearing
is given to your alleged abuser because of
the danger of acts of domestic violence against
you
or your children;
- A court order directing your abuser not to
assault, follow, threaten, abuse, harass or
interfere with
you or your children;
- Exclusive possession of the your residence
or household and a court order directing your
abuser
to move from and not return to your residence;
- A court order evicting your abuser from your
residence and giving you assistance in returning
to the residence;
- Possession of your personal property such
as clothing or household goods;
- A court order directing your abuser not
to come to your residence, your place of
work,
your children’s
day care facility or schools, your domestic
violence shelter,or any other place you
may frequent;
- A court order directing your abuser not to
have any contact with you;
- Possession of a certain vehicle;
- A court order directing your abuser to pay
temporary child support or spousal support;
- A court order awarding you temporary custody
of your children;
- A court order prohibiting your abuser from
possessing or purchasing a firearm;
- A court order directing your abuser to attend
an abuser treatment program;
- A court order requiring your abuser to provide
you and your children with suitable alternate
housing;
- A court order requiring your abuser to
pay your attorney’s fees
You may also add any additional forms of relief
that you may want or need from the court that
do not appear on the printed AOC form. And the
court can always, upon its own initiative, add
any additional prohibitions or requirements that
the court deems necessary to protect you or any
minor child. It must be pointed out that if you
are seeking spousal support, child support or
child custody from the court, you should consult
with a family law attorney. The Complaint and
Motion for Domestic Violence Protective Order
printed by the Administrative Office of the Courts
for use by pro se litigants (Pro se litigants
are not represented by an attorney.) does not
provide the needed space to make the allegations
required under our state statutes to establish
a solid claim for custody or support. You will
need the advice of a family law attorney to draft
your complaint and motion tailor-made to your
claims for support and custody.
You should be prepared to testify to your need
for the relief you are requesting from the court.
If for example, you are seeking spousal or child
support, you should be prepared to present to
the court details on your monthly financial needs
and expenses. If you are seeking custody of your
child, you should be prepared to testify as to
any visitation plans by which the other party
would be able to visit with your child and any
arrangements that may be needed to allow for
the safe exchange of your child for purposes
of visitation.
If
I press criminal charges against
my abuser, what will happen at
trial?
At
the trial on your criminal charges,
you will be represented by a
district attorney.
You
should contact the district attorney’s
office well in advance of the
trial date to ask for instructions
and to inform the prosecutor
of any evidence photographs or
medical records of your injuries,
torn or bloodied clothing as
a result of your injuries, witnesses
to the acts of domestic violence
that you have to support your
case.
You
can also discuss with the district
attorney the criminal penalties
being sought. The maximum sentence
for misdemeanor assault is
2 years imprisonment and a
fine. The sentence for felony
assault is up to 20 years imprisonment
and a fine. A person who is
a repeat convicted offender
may receive more severe sentences.
Even if found guilty, your
abuser may be given a suspended
sentence and put on probation.
If so, you can ask the court
for various forms of protection
from your abuser as a condition
of his or her probation.
On
the date of trial, you should
be present in court at the
correct time. Frequently,
a trial may be postponed
because of crowded court
calendars. However, if you
are absent on the date of
your trial, your case can
be dismissed. During the
trial you will probably be
called to the stand to recount
in detail the episodes of
domestic violence. You can
discuss your testimony with
your district attorney in
advance of the trial.
What will happen if I file a
civil action ask for an ex
parte domestic violence protective
order on my Complaint and Motion
for Domestic Violence Protective
Order?
Your complaint and motion requesting
an ex parte protective order
will be heard in domestic violence
court. This hearing will take
place without your abuser being
present. Based on your testimony
and evidence, the court may issue
an ex parte domestic violence
protective order. ( The legal
term ex parte indicates that
the court order was issued without
the opposing party being present
in court to present his or her
side of the story.)
At this hearing, you should
testify in detail to the acts
of domestic violence alleged
in your complaint. Remember
that the domestic violence
statute does not limit the
incidents of domestic violence
to any particular time period.
You may testify to past and
current acts of domestic violence.
You should also testify in
detail to the fear you experienced
and to the injuries you received.
If the court issues an ex
parte domestic violence protective
order, the court must schedule
a return hearing on a date
within 10 days of the issuance
of the ex parte order or within
seven days of the day your
alleged abuser is served a
copy of the order and your
complaint, whichever date occurs
later in time. The court will
also issue the notice of hearing.
You will then be instructed
by the court to have the local
sheriff’s department
serve the ex parte order, your
complaint, and notice of the
return hearing on your abuser.
At the 10- day return hearing
both you (the plaintiff) and
your alleged abuser (the defendant)
will testify and present evidence
on the alleged acts of domestic
violence. If the court determines
that acts of domestic violence
took place, the court will
issue a ‘permanent’ domestic
violence protective order.
The domestic violence protective
order is for a fixed period
of time not to exceed one year.
To renew the protective order,
you will have to return to
court to testify as to why
the protective order should
remain in effect for another
year. There is no statutory
limitation as to the number
of renewals you can obtain
from the court.
If the court issues you a
domestic violence protective
order against your abuser,
you should provide both your
abuser and your local police
or sheriff’s department
with copies of the order
What happens if I do not get
an ex parte domestic violence
protective order at my domestic
violence hearing in domestic
court ? Or what happens if
I only request emergency relief
on my Complaint and Motion
for Domestic Violence Protective
Order.
If the court does not enter an
ex parte order, you may move
the court for emergency relief
if you believe there is a danger
of serious and immediate injury
to yourself or a minor child.
A hearing on your motion for
emergency relief, where no ex
parte order is entered, must
be held after five days notice
of the hearing to the other party
(your alleged abuser) or after
five days from the date of service
of process on the other party,
whichever occurs first was issued
by the court. Your alleged abuser
will be given five days notice
of the hearing.
What should I do to prepare
for the hearing on my Complaint
and Motion for a Domestic Violence
Protective Order?
At your hearing, you will
be asked to testify to the
episode or episodes of domestic
violence that have occurred.
You should testify to any injuries
that you suffered and/or the
fear that you experienced.
If there were witnesses to
the episode(s) of domestic
violence, you should ask them
to attend the hearing to testify
in your behalf. If you have
medical records, photographs
of your injuries, torn or bloodied
clothing that can supplement
and support your testimony
regarding your injuries, you
should bring these documents
to your hearing to introduce
as evidence.
What can I do if I have a domestic violence protective
order and my abuser violates the order?
If your abuser has violated your domestic violence
protective order, you have an action for contempt
against him or her under the Domestic Violence
Act. This law also allows for the arrest and taking
into custody of your abuser without a warrant,
if the police have probable cause to believe that
the person has knowingly violated a valid protective
order excluding that person from your residence
or household or directing the person to refrain
from doing any or all of the acts specifically
enumerated in your protective order. This is why
it is important to give your local police department
a copy of your domestic violence protective order
and to have a copy on hand to show to any policeman
who is called to your residence. Any person who
knowingly violates a valid protective order is
guilty of a misdemeanor. And if that person commits
additional crimes while in violation of a valid
protective order, there are more severe criminal
penalties imposed for his or her criminal acts.
If I am separated from my spouse,
or ex-spouse, or from my
former live-in partner, can
I prevent him or her from
coming to my residence?
Yes. If you are physically
separated from your spouse,
ex-spouse or former live-in
partner, then he or she is
guilty of criminal domestic
trespass if he or she enters
your residence or refuses to
leave after you have asked
him or her to leave.
