Domestic Violence

I understand a lot more about domestic violence now, after more than 35 years of practicing law, than I did when I was a new attorney. I don’t think I understand the law any better, I just understand the victim. Back in my 20’s, I just didn’t understand why a person would have two good legs and not walk away. Now I understand that part of the danger of being in an abusive relationship is the toll it takes on you as a person, it makes you think that the other person is right, that things are your fault, that there is no place safe but with the abuser. It may not make sense, but I understand it. When you are living on the edge, either financially, emotionally or physically, it is harder to think of something you can do that doesn’t involve some sort of risk. For this reason, I am glad that there are places such as Interact and Legal Aid which provide services to victims of domestic violence.

Domestic ViolenceUnfortunately, the present domestic violence statutes have been given a bad reputation by those who use the court as a way to harass and manipulate the other party. Everybody is for peace and against domestic violence. It is not okay for someone to hurt you, ever. It is not okay for someone to threaten you, abuse you physically, abuse you emotionally, or threaten harm to your child or another member of your family. If such a thing should happen to you or someone you know, there are things that can be done.

On the other hand, separation and divorce are highly charged issues. Sometimes those emotions boil over. If a person who has never before been violent makes an error of judgment in the heat of the moment and you believe that this error will never be repeated, think before you go to court. This suggestion in no way infers that abuse should be tolerated, only that you know your spouse or significant other. If you believe that this one act (and not a series of acts) is not going to be repeated, you may wish to note that it happened and move on. If it happens again, understand that something has changed with the other party and do what is necessary to make certain that you and your children are safe.

A person can file an action for a Domestic Violence Protective Order, often called a DVPO or a 50b, if a person with whom they have had a present or past relationship has committed acts of violence or threatened acts of violence against that person or a family member. A DVPO is a civil action, which means that the abusive party will not have a criminal record. However, the party can be arrested for any violations of the order.

While often times the assistance of an attorney or domestic violence prevention group can be helpful to a Plaintiff, the process has been designed so that a person can fill out the AOC forms and proceed to court without an attorney. In addition, in Wake County and many other counties in North Carolina, domestic violence prevention groups generally have a representative available in the domestic violence courtroom to provide assistance. In order to file an action for a protective order follow these steps: [Note: these steps are for actions in Wake County, other counties have similar, but not necessarily the same, required steps.]

1. Download the domestic violence petition or go to the Domestic Violence Unit in room 525 on the 5th floor of the Wake County Courthouse, and fill out the forms. You should write down the acts of violence which have occurred, starting with the most recent occurrence. File the forms with the Clerk of Court in the Domestic Violence Unit on the fifth floor of the courthouse.

2. At 2:00 on the day you file your action (or the following day if it is after the 2:00 calendar) go to Courtroom 5A and wait for the judge to call your name. You will then go up to the witness stand and tell the judge what acts of domestic violence have occurred and why you are afraid that such conduct may be repeated. The judge will either grant or deny your ex parte protection order (DVPO).“Ex parte” means that the other side was not present. Usually these orders require the other party, the Defendant, to be removed from the home for not more than 10 days. If the person is known to own guns, the Deputy sheriff will remove those as well.

3. If the ex parte order is denied, you can still proceed to court on your matter, there will just not be any immediate order. If the ex parte order is granted you will be required to return to court in 10 days for the hearing to see whether the order will be continued for a year. Either way, you will take the complaint and have it served by the sheriff’s deputy on the Defendant and, if the Defendant is required to leave the house, the Deputy will insure that he or she leaves the home without further risk of violence.

4. On the date set by the court for you to return, you will go back to courtroom 5A. If you and the Defendant have been able to work out an agreement, you can enter a consent order. If the Defendant has not yet been served, your matter will be continued to another date in hopes that the defendant will be served by then. If you believe that you are not in danger of any further violence and you wish to dismiss your action, you may do so at that time.

5. If the Defendant has been served and no other settlement has been reached, the court will hold a hearing to determine if an act of domestic violence has occurred. Both sides are given an opportunity to testify and present evidence in support of their positions. Even if you wish to modify the terms it is often helpful to keep the restraining order in effect and require the other party to attend classes to learn ways to channel anger into more effective and acceptable ways.

6. If the Judge finds that domestic violence has occurred that judge may enter a protective order which may, but does not have to, grant possession of the home to the Plaintiff, grant Plaintiff possession of a vehicle, set out a temporary custody order, require the Defendant to turn in all firearms, and other remedies allowed under NCGS §50B-3. Such as preventing the Defendant from purchasing a firearm or ordering the Defendant to participate in an abuser treatment program. This Order is valid for one year, at which time the Plaintiff can move to have it extended for good cause.

7. If the parties have minor children, the court can make an award of temporary custody and establish visitation rights, as well as provide for temporary child support. The orders can provide for limited contact between the parties only as it relates to the children. These custody orders are not meant to be the permanent; the court encourages parties to file a Chapter 50 action to resolve the custody and support matters.

While no amount of violence is acceptable, before proceeding to court, consider the situation and the seriousness of the violence. Domestic Violence actions should not be used as an easy way to remove someone from the house, or as a substitute for a counselor. It is not violence to threaten to take someone to court, or to fight for custody, or to do any other legal act. Be aware that the Defendant who is found to have committed acts of domestic violence could lose a security clearance or could lose employment or not be granted employment. These are the very acts that the legislature tried to eliminate by creating the civil domestic violence protective orders. There may also be problems with immigration if a party violates that DVPO.

Finally, Defendants beware: You will be placed in jail and will face criminal charges for violating a restraining order. The Plaintiff cannot tell you that the you can “come over” or you can “go out together”.  If the Plaintiff has any desire to resume contact with the Defendant, the Plaintiff must ask the court to revise it’s order or to dismiss it entirely. There is a form the plaintiff may use to either set aside a domestic violence protective order or to renew it so that it does not expire.  AOC-CV-313. The only way the Defendant can be relieved of the terms of the restraining order is by the judge modifying or dismissing the order, or the order expiring after one year.