In the context of family law, restraining orders in North Carolina are commonly handled pursuant to general statute 50B and the institution of a civil action.
To be clear, criminal charges may also be a legal option in addition to relief sought pursuant to a protection order.
As such, the very same allegations as set forth in a criminal warrant or summons may also serve as a basis for a Domestic Violence Protective Order or “DVPO.”
It is not considered Double Jeopardy to seek both. There are no 5th Amendment protections against filing a 50B and criminal charges based on the same fact-pattern and allegations in the appropriate circumstances.
It’s common for people to be a bit confused about what to call such prayers for relief. Domestic violence attorneys often use the terms DVPO, 50B, and/or a Protective Order, meaning the same thing.
It doesn’t much matter what you call it. Just remember what we’re essentially talking about is a type restraining order and legal protection backed up by a Court Order to prevent further harm, injury, or emotional distress.How to Get a Restraining Order?
There are different types of restraining orders in NC.
Orders of protection between people outside a domestic relationship are often subject to what lawyers may refer to as a 50C - Civil No Contact Order. That’s different than a Chapter 50B DVPO.
Both a Domestic Violence Protective Order, under Chapter 50B, and a No Contact Order, under Chapter 50C, require the filing a paperwork in CIVIL COURT.
A Civil Complaint is required. The “Complaint and Motion” is technically a lawsuit that requires setting forth formal allegations, a Civil Summons, Service of Process (and notice of a hearing) much like lawsuits involving car wrecks or contract disputes.
The standard of proof is different than criminal charges, only requiring proof by a greater weight of the evidence. That’s the standard used for many, if not most civil lawsuits.
Proof Beyond a Reasonable Doubt is a protection afforded under the Constitution of the United States and North Carolina. The Burden of Proof for Civil Complaints is a substantially lower legal standard than for Criminal Charges.Can a Lawyer Help File a 50B? Do I Need a Lawyer for a 50B?
In both instances, the answer is yes. We purposely choose not to limit who we help. We want to put our substantial experience to work for you and your legal cause.
As such, our law firm helps victims of Domestic Violence. We also serve as legal counsel to clients facing allegations of assaults, battery, and other DVPO issues in both criminal court and civil court.
We’re courtroom lawyers. We enjoy helping people with legal issues in court. And 50B Orders tend to be some of the most hotly litigated legal issues in Mecklenburg County.
It makes sense to retain a lawyer who is regularly in the courtroom and who understands the nuances, interaction between, and implications of restraining orders in both civil and criminal court.How to File a Restraining Order?
Under Chapter 50B-2 anyone who resides in North Carolina may seek a legal remedy, relief, and protection by filing a civil action. As such, that type of restraining order requires filing a lawsuit or “Complaint.”
Such matters are handled in District Court by a Judge, not a jury.
As is the case with other types of lawsuits, in addition to a Complaint (lawsuit), a Civil Summons must be issued and served on the person accused of acts of domestic violence.
Once properly served with the Complaint, a hearing must be held within 10 days to address the Ex Parte Order. Such emergency relief, given the implications, is purposely temporary in nature.
If properly served with the Motion for DVPO (Domestic Violence Protection Order), violation of the terms of a valid Court Order can subject the Defendant (Respondent) to a criminal charge called Violation of Valid Protective Order.
Punishment for such a violation is as a Class A1 Misdemeanor, the highest level of misdemeanor criminal charge in North Carolina. It subjects the defendant to a maximum 150 day period of confinement.What are Ex Parte Orders? What is Required?
The complaining party to the 50B civil action may seek temporary emergency relief when they believe they are in danger of serious, immediate injury to themselves and/or a minor child.
The Court reviewing an emergency Motion for protective order may issue an Order, and terms pursuant to said Order, when it believes it appropriate to protect the Plaintiff and any minor children from the danger of acts of domestic violence.
The Court must conduct an initial hearing, which is held outside the presence of the Defendant.
That’s what “Ex Parte” means: In the interests of only one party.
The Judge hears only evidence from the Plaintiff. The Defendant does not have the opportunity to be heard on whether the 10 day Ex Parte Order is issued.
In fact, in some jurisdictions in North Carolina, application for a DVPO and the hearing itself may be handled remotely, electronically, via video conference. “E-Filing” is not yet universally available in NC.Child Custody Orders and Emergency Orders
Such Ex Parte Orders for Child Custody cannot be entered unless the District Court Judge makes an official finding that there is a substantial risk of sexual abuse, emotional injury, or physical injury to the child.
In the event the Judge makes findings that the minor child is exposed to a risk, which must be substantial, of sexual abuse, physical or emotional injury, it Court may:
- Order the Defendant (Responding Party) to stay away from the child
- Return the child to the physical care of the other parent or person acting in loco parentis
- Not remove the minor child from the other parent or other person acting in loco parentis
The Court must issue such Orders in the best interest of the minor child or children, using steps necessary to protect and otherwise ensure the safety of the children.
The Judge is given broad discretion in determining the terms and conditions of Child Custody Orders.Domestic Violence Lawyer – Bill Powers
If you have legal questions involving domestic violence, we’re here to help. Bill Powers has substantial experience helping both victims of domestic violence as well as people wrongfully accused of criminal charges.
Call Bill Powers NOW: 704-342-4357
You may also email Bill directly at: Bill@CarolinaAttorneys.com
**Consultation fees apply in civil actions involving Separation, Divorce, Child Custody, Support, and 50B DVPO Domestic Violence Orders.