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Montgomery Family Law
Divorce & Family Law > Domestic Violence

North Carolina Domestic Violence Facts

  • What is domestic violence? 

    • 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:
      1. Attempting to cause bodily injury, or intentionally causing bodily injury; or
      2. 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
      3. 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.
  • Does my abuser have to be my spouse? 

    • 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:
      1. A current or former spouse;
      2. A person of the opposite sex who has lived with you or is living with you;
      3. 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.);
      4. A person who is the parent of your child;
      5. A current or former household member; and
      6. 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:
      1. Emergency relief;
      2. 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;
      3. A court order directing your abuser not to assault, follow, threaten, abuse, harass or interfere with you or your children;
      4. Exclusive possession of the your residence or household and a court order directing your abuser to move from and not return to your residence;
      5. A court order evicting your abuser from your residence and giving you assistance in returning to the residence;
      6. Possession of your personal property such as clothing or household goods;
      7. 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;
      8. A court order directing your abuser not to have any contact with you;
      9. Possession of a certain vehicle;
      10. A court order directing your abuser to pay temporary child support or spousal support;
      11. A court order awarding you temporary custody of your children;
      12. A court order prohibiting your abuser from possessing or purchasing a firearm;
      13. A court order directing your abuser to attend an abuser treatment program;
      14. A court order requiring your abuser to provide you and your children with suitable alternate housing;
      15. 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.