How To Obtain A Protective Order

You are a victim of Domestic Violence, if (1) you have actually been physically attacked or injured by an abusive person, or (2) if the acts of the abusive person cause you to honestly believe that you are in immediate danger of physical harm.

The abusing person must be: (1) a current or former spouse; (2) persons of the opposite sex who live together or have lived together; (3) related as parents and children, grandparents and grandchildren. (A person can not obtain a restraining order against a child or grandchild under the age of 16); (4) parties that have a child in common; (5) are current or former household members; or (6) are members of the opposite sex involved in a dating relationship (a casual acquaintance or ordinary fraternization between persons in a business or social context is not a dating relationship).

North Carolina and most other states have enacted laws designed to give an abused spouse simple and quick access to the Courts. These laws are designed to provide immediate protection for abused spouses.

Procedure for Obtaining A Domestic Violence Protective Order.

If you are a victim of domestic violence or abuse, you can fill out and file a Complaint for Domestic Violence with the Clerk of Court in the county where you live. The complaint should tell the Court what the abusing spouse has done to you. The report should be specific as to the acts of domestic violence and the date and times when the acts took place. The complaint should also ask the Court to provide you with protection and you should be specific as to what you want the Court to do to protect you. For example, you might want the abusing person ordered to stay away from you and your children, to stay away from your work or to not telephone you. You may even want ask the Court to remove the abuser from your home and to provide you with the use of the family car. You might ask that the abusing spouse pay your attorney fees to file this action, or ask the Court to make the abusing spouse pay for the support of your children pending a final resolution of the domestic issues in a conventional family law action. You can ask the Court to award temporary custody of your children to you and to award temporary child support to you until a permanent action can be filed and heard by the District Court.

The Court can grant all of these requests and the abuser will be subject to immediate arrest without further Court appearance for violation of any of the terms of a Restraining Order.

A judge will hear the initial complaint, usually on the same day that it is filed, in what is known as an Ex-Parte hearing. If you have been abused you will receive a Temporary Order for protection without the other person being present or involved in the initial hearing. This Order is known as an Ex-Parte Order (because it was granted without contact with the other person). This is a temporary Order and generally is only effective for a period of ten (10) days. The other party will be served with the Restraining Order by the sheriff. A full hearing will be held within ten (10) days of the granting of the Temporary Order, and the other party will then be given the opportunity to present evidence in his or her defense. If your request for protection is granted during this ten (10) day hearing, an Order for your protection will be entered and the other person will be arrested immediately without further hearing, if he or she violates the terms of the Order. The Order is valid for a period of one year and at the end of said year can be renewed, if desired, for one additional year.

Your attorney or the Clerk of Courts Office will assist you in filing the complaint and guide you in the steps that you must take to obtain protection from the Court.

This procedure is a very powerful tool to protect you against abuse. Most cases that are filed are legitimate cases of domestic violence, but on rare occasions a person may file for protection in order to gain an advantage in the ongoing domestic action for divorce or custody. If you are wrongly accused of domestic violence you should seek the assistance of a qualified attorney who can help you to defend against the false claims of the other party. Sometimes the attorney can assist you in getting the Court to order that the person filing the false claim against you must pay your attorney fees in defending against the false claim.

There are many other sources of support for abused persons, such as " The Shelter for Battered Men and Women, support groups and free legal advice. Contact your attorney for assistance in getting the protection and support that you need to protect you against acts of abuse and domestic violence.