How to Get a Restraining Order in NC
A restraining order or protective order is a legal order issued by a state court which requires one person to stop harming another. In North Carolina it is technically called a Domestic Violence Protective Order or a Civil No-Contact Order.
You do not need a lawyer to file a protective order, but having a lawyer could make the process easier.
There are two types of protective orders depending on the circumstances of your case. If you have a personal relationship with the abuser, like a domestic partner or a family member, you can file for a Domestic Violence Protective Order, also known as a 50B order or DVPO.
- These orders can require that the abuser move out of your joint home or pay for other housing for you.
- They can give you temporary custody of your children and pets, as well as require temporary child support and spousal support.
- These orders can prevent your abuser from engaging in certain actions, such as threatening you, coming within a certain distance of you or purchasing a firearm.
- A DVPO could also require the abuser to undergo counseling and treatment.
If you do not have a personal relationship with the abuser, like in the case of an acquaintance or a stranger, you can file for a Civil No-Contact Order, or 50C order.
- These orders apply to cases where you are being stalked or are facing unwanted sexual advances from a person you have not had a relationship with.
- They can be temporary (to provide immediate relief) or permanent (lasting one year).
- These orders can require that the person not contact you and stay away from places where you will be.
In either type of case, a judge may also order the abuser to pay your attorney’s fees if you used one.
You can likely get a temporary protective order, called an ex parte order, very quickly by filling out a complaint. This order can last up to 10 days, after which you will need to go to court to seek a permanent order. To obtain a permanent protective order, you will need to show the person committed one of the following:
- An act of domestic violence
- Nonconsensual sexual conduct
There are no filing fees for requesting a protective order. The process requires to fill out legal documents in as much detail as possible. You will also need to attend a court hearing, where you will have to show that the defendant (or the person you are filing the order against) has committed acts that warrant the protective order.
- Go to the courthouse and get the forms you need. You can find a list of county courthouses on the N.C. Administrative Office of the Court’s website, this is a link to it: http://www.nccourts.org/Courts/CRS/NCMap/Courthouse.asp. Go to the office of the clerk of civil court or the magistrate’s office. Tell them you need to file for a restraining order, protective order, DVPO or Civil No-Contact Order. You can also tell the office that you need to file for an emergency ex parte/temporary protective order.
You will find that deputy clerks and assistant clerks are helpful. They should make sure you get the forms you need. You can also download the DVPO in this link: http://www.nccourts.org/Forms/Documents/696.pdf or the Civil No-Contact Order in this one: (http://www.nccourts.org/forms/Documents/887.pdf) ahead of time.
- Fill out the complaint in detail, but do not sign it until you are before a notary public or clerk of court. Note that this is a civil complaint, you are the plaintiff and the abuser is the defendant.
Provide a brief but complete summary of the most recent abuse you have suffered. Use specific language and details. For example, say whether you were grabbed, punched, kicked or threatened with violent gestures or language. Provide dates. Make sure to state, to your knowledge, whether your abuser owns or possesses any firearms.
The key is to give a clear and concrete picture of the abuse to the judge who will decide your case. You also want the judge to know the relief you are seeking. If children are involved, make sure to request temporary custody.
- Fill out the summons and help the sheriff’s office identify your abuser. (See more below) In addition to being served the complaint, your abuser will need to be served a civil summons to appear in court. If you have it, you must include the abuser’s name, address and other contact information in the summons.
The county sheriff’s office will serve the complaint and summons on to the abuser. The sheriff’s office also will serve the notice of hearing and a copy of the ex parte/temporary protective order (more of this below).
You can help the sheriff’s office by filling out a form that identifies your abuser. This identification can include:
- Physical characteristics (height, weight, race, hair color, eye color)
- Driver’s license number
- Social Security number
- Employment address
- Permit to carry a firearm
You will also need to list your name and a safe mailing address and phone number. If you are staying at a shelter, you can use the shelter’s address and number.
Because the sheriff’s office serves the abuser, you do not need to have contact with him or her. If the sheriff’s office cannot serve your abuser on time, your hearing will be rescheduled.
- Seek an ex parte/temporary protective order. At the time you fill out the complaint and summons, you can also seek an ex parte/temporary protective order. “Ex Parte” means “without the other party”. This means that you can obtain this order without the abuser being present for a hearing.
You can request it by checking a box on your complaint form. You then go before a judge to explain why you or your children are in immediate danger and why this order is needed. (If no judge is available that day, you can see the judge the next day court is in session).
This is an emergency order. Once it is granted, it takes effect immediately and typically lasts 10 days (enough time for you to pursue a permanent order).
Keep this order with you at all times. Leave copies with your employer, your child’s school or daycare, and everywhere else you or your children can be found during a typical day.
- Attend the hearing. When you file the complaint and summons, you will be given a date and time for the hearing on your protective order. Your abuser will receive a notice of the hearing with this information. The hearing date will be within 10 days of the filing of your complaint.
You must attend the hearing. Your abuser has a right to attend as well. If the abuser does not attend, the court may proceed or elect to reschedule the hearing.
You do not need an attorney at the full court hearing, but you may want one, especially if you think the defendant (abuser) will have one. It is recommended that you contact an attorney to make sure that your legal rights are protected. You can get free legal assistance if you contact one of the domestic violence organizations in your area. You may request that an advocate accompany you to court. If you need extra time to obtain one, you can ask the court for a 10-day extension (or continuance) by showing good cause.
At the hearing, you will need to show the court that the abuser has committed an act of domestic violence, stalking or nonconsensual sexual conduct (as defined by North Carolina laws). If the court finds that this has occurred, the court must grant the order.
If you fail to attend the hearing, your ex parte order will expire. If you still wish to pursue a restraining order, you will need to file a new complaint and summons.
- Extend or renew the order (if needed). A protective order lasts for one year from the date it is granted. However, you can seek an extension (or renewal) of the order.
If you believe a renewal is needed, you can follow steps 1-5 above.
If you do not qualify for a DVPO or if your order is not granted, you can still seek protection from the law and assistance from domestic violence organisations.
- Class A1 misdemeanour, Up to 60 days in jail if the defendant has no prior convictions;
- Felony if the defendant commits a crime while subject to a protective order;
- If the defendant has two prior convictions for violating a protective order, or if the defendant violates a stay away provision while possessing a deadly weapon, the new violation is punished as a Class H felony, which carries a presumptive sentence range of five to six months in prison for persons with no prior criminal convictions.