Domestic violence protective orders

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Jim Siemens

Certified Family Law Specialist

Domestic Violence Protective Order

Domestic Violence consists of a pattern of behavior that one person uses to control another person with whom they have a relationship.  We are sensitive to the fact that in some situations, simple separation is not an available option without first considering the health and safety of all parties who are likely to be affected by it.  The purpose of this blog entry is to discuss an initial civil legal remedy available to individuals seeking to protect themselves and their children as they leave an abusive relationship.  If you believe you are involved in an abusive relationship, or are concerned about a friend in this situation, contact the local domestic violence protection agency (in Buncombe County, Helpmate, (828) 254-2968; elsewhere, call the National Domestic Violence Hotline, (800)799-SAFE).

WHAT IS DOMESTIC VIOLENCE UNDER NORTH CAROLINA LAW?

Although being party to an abusive relationship generally means that there is a pattern of behavior present on the part of the abuser, a single act as described by N.C.G.S §50B can be grounds for a protective order (also known as “restraining order” or “50B”).  An act of “domestic violence” can be:

• an attempt to cause bodily injury; or

• intentionally (not accidentally) causing bodily injury; or

• otherwise placing you or a member of your family or household in fear of imminent serious bodily injury; or

• committing an act of sexual abuse; or

• continued harassment which has the purpose of intimidating or tormenting and rises to such a level as to inflict substantial emotional distress.

WHAT IS A DOMESTIC VIOLENCE PROTECTIVE ORDER?

A Domestic Violence Protective Order is a restraining order which is designed to prevent an abuser from being violent toward you again, usually by ordering that they not assault, threaten, abuse, follow, harass, or even contact you.

A Domestic Violence Protective Order is different from a criminal warrant or a restraining order that a judge might have given you at a criminal court hearing.  This is a civil action that is designed to protect you from further acts of domestic violence by your abuser.  Your abuser will not be sent to jail just because you have a 50B order.  However, once you have a 50B, an abuser may be arrested for violating it.

This restraining order is NOT an action for custody, divorce, or dividing marital property, although each of these issues can be addressed, on a temporary basis, in the restraining order.  A Domestic Violence Protective Order should only be used as a way of protecting you or your children from domestic violence.

What Can a RESTRAINING ORDER Do?

A 50B usually orders the abuser to stay away from and to not assault, threaten, abuse, follow, or harass the victim and her children.  A judge, at his or her discretion, can also give you any of the following additional emergency assistance if he or she believes it will help protect you and/or your children from further violence:

• Grant possession of the residence or household and exclude the abuser from the residence or household.

• Require an abuser to provide a spouse and his or her children suitable alternate housing.

• Award temporary custody of minor children and establish temporary safe housing.

• Award temporary custody of minor children and establish a temporary safe visitation plan.

• Order the eviction of the abuser from the residence and order assistance to the victim returning to the home.

• Order an abuser to make child support payments.

• Order an abuser to make spousal support payments.

• Provide for possession of personal property of the parties (such as the more reliable car).

• Order the abuser to refrain from doing any or all of the following:

1. Threatening, abusing, or following the other party;

2. Harassing the other party, including by telephone, visiting the home or workplace, or other means

3. Interfering with the other party

• Order the abuser to stay away from the victim’s school and places where the children live or go to daycare or school.

• Award either party court costs and attorney’s fees.

• Order the abuser not to possess or purchase any firearms for a time fixed in the order.

• Order the abuser to attend and complete an abuser treatment program.

• Include any additional prohibitions or requirements the court believes are necessary to protect any victim or any minor child.

A judge is not required to give any or all of the relief listed above.  In Buncombe County, economic remedies are rarely awarded.  If the judge does award any of the things listed above such as custody or possession of the house, it is only temporary and will expire when the order expires.  Bear in mind, however, that with a protective order in place, other civil actions are available to help you resolve the common issues to divorce.