Scharff Law Firm provides victims with guidance on how to move forward.
No one should have to feel afraid for their safety. Suffering harm, domestic violence, or stalking from another person is often a frightening, stressful, and life-changing experience. If you are feeling fearful of another person you may feel powerless to stop it. This other person may be causing you serious emotional or physical harm and you need assistance in determining how to best protect yourself. You may have questions about filing for and enforcing a restraining order or about whether you should contact the police. The legal system is often confusing and understandably harder to navigate when you’re in crisis.
Attorney Amily McCool has been assisting victims of domestic violence and stalking for 18 years. She maintains her own blog on domestic violence issues at ncdomesticviolence.com. Amily understands more than just your legal options, but also the dynamics of relationships where one person is abusive, and the community resources available to victims. She wants to re-empower you by deciding together what the best path forward is and then zealously advocating on your behalf. At the Scharff Law Firm – we know that you are more than just this experience. We want to work with you to create solutions that honor your entire person and use the law and community resources to best meet your goals and keep you safe.
Below you can read a little more about some of the options available in North Carolina and about how Amily can assist you. If you’ve been the victim of domestic violence or stalking you can contact Amily at the Scharff Law Firm to explore your options for protection. Whether you are trying to decide if you should file for a restraining order, you’ve already filed and need assistance at an upcoming hearing, or you need guidance on whether or how to renew, modify, or enforce a protective order, we have the resources, compassion, and expertise to assist you in both the legal and non-legal aspects of your case in your time of need.
Different Types of Restraining Orders in North Carolina
North Carolina offers victims of domestic violence, stalking, and sexual assault different types of restraining orders. All of these restraining orders are similar in that they are free to file and offer specific remedies, or things a victim can ask of the judge to be included in the order to help keep them safe. However, the legal rules about which type of order you can file and the type of protection that each order grants varies.
- Domestic Violence Protective Order (DVPO/50B): This restraining order is available to persons who have 1) experienced domestic violence and 2) who have a “personal relationship” with the person who hurt them. Both “domestic violence” and “personal relationship” are defined by North Carolina law.
- Civil No-Contact Order (50C): This restraining order is available to persons who have experienced 1) stalking or nonconsensual sexual conduct and 2) who do not have a “personal relationship” with the person who hurt them. Stalking and nonconsensual sexual conduct are defined by North Carolina law.
- Permanent Civil No-Contact Order Against a Sex Offender (50D): This restraining order is only available to persons who have been the victims of a sex offense where the offender has been convicted of the crime and the victim did not receive a criminal no contact order as part of the criminal case.
What is a Domestic Violence Protective Order (50B)?
A Domestic Violence Protective Order (DVPO) is a restraining order that is designed specifically for victims of domestic violence to give them the protection they need from the person who is hurting them. It is different from a general restraining order because it allows a judge to order more specific forms of protection and importantly, it grants law enforcement the power to enforce it by charging the defendant criminally if they violate the order.
In order to file for a DVPO against the person hurting you, you must have a “personal relationship” with them. North Carolina law defines only certain categories of relationships as meeting the definition of a “personal relationship” for the purpose of being able to file a DVPO.
Personal relationship is currently defined under North Carolina General Statute 50B-1(b) as:
- Current or former spouses;
- Persons of opposite sex who live together or have lived together;
- Persons related as parents and children, including others acting as a parent to a minor child, or as grandparents and grandchildren. (However a person cannot obtain an order of protection against a child or grandchild under the age of 16)
- Have a child in common;
- Current or former household members;
- Persons of the opposite sex who are in a dating relationship or have been in a dating relationship. Dating relationship is one where the parties are romantically involved over time and on a continuous basis during the course of the relationship. A casual acquaintance or ordinary fraternization between persons in a business or social context is not a dating relationship.
Although domestic violence occurs at the same rate in same sex dating relationships as in opposite sex, currently NC law specifically discriminates against victims in same sex dating relationships as it excludes protection for same sex dating partners who have never been household members and who are not or have not been married to each other. If you are a victim in a same-sex relationship you may encounter even more barriers to accessing the court system and legal remedies. Amily is familiar with the options available to LGBTQ folks and is an LGBTQ-affirming attorney who can help you think through what will work best for you.
In addition to having a “personal relationship” you will be required to prove to a court that you have experienced domestic violence as it’s defined in North Carolina law.
North Carolina General Statute 50B-1(a) defines domestic violence for the purpose of obtaining a DVPO as:
- Attempting to cause bodily injury, or intentionally causing bodily injury; or
- Placing the aggrieved party or a member of the aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment, as defined in G.S. 14-277.3A (NC’s stalking statute), that rises to such a level as to inflict substantial emotional distress; or
- Committing any act defined in G.S. 14-27.21 through G.S. 14-27.33. (The statutes which criminalize rape and sex offenses)
What Protections Do I Have With a DVPO?
A domestic violence protective order may give you numerous protections, including:
- Ordering the person harming you to have no contact with you of any kind, directly or through third parties
- Prohibiting the other person from assaulting, threatening, abusing, following, harassing, or otherwise interfering with you or your children by any means, including in person, through social media, at work, or on the telephone.
- Ordering the other person to move out and not return from the home where both of you may have been living – no matter who owns or leases the home.
- Giving the police permission to remove the other person from your home.
- Giving you possession of personal property including a car.
- Ordering the other person to stay a fixed distance away from any place you request, such as your work, your children’s school, your friends’ homes, and any other place where you may be seeking shelter.
- Giving you temporary custody of a minor child
- Giving you possession of your pet and ordering the other person not to harm your pet.
- Ordering the other person to surrender firearms and not be able to purchase firearms
- Ordering any other prohibitions or requirements that the court feels necessary to keep you safe.
What Happens if The Defendant Violates the DVPO (50B)?
The DVPO is in place to keep this person from harming you. If the defendant violates it, they have broken the law and you have the right to enforce the DVPO. However, you may have questions about what the best option is for how to enforce the DVPO or even whether to enforce it at all. There’s no one right option that works for everyone as each person’s situation is different.
If the defendant violates the DVPO, you have several legal options for enforcing it. One of the unique powerful tools that a DVPO grants you is that it is enforceable by law enforcement. A violation of the order is at a minimum, an A1 misdemeanor (the most serious misdemeanor crime in NC), and in some circumstances, a felony. Therefore, you have the option of reporting the violation to law enforcement. Sometimes, there are many reasons why you may not want to involve the criminal justice system. You also have the option of trying to enforce the DVPO by going back to civil court and asking that the judge hold the defendant in either civil or criminal contempt of court. Our laws do not allow a defendant to both be convicted of a criminal violation of a DVPO and also to be held in contempt of court for the same behavior. Therefore, you will have to choose which method you want to use to enforce the order since you can’t do both. If you would like assistance in trying to determine whether and how to enforce your DVPO, please call Amily at the Scharff Law Firm and she would be happy to talk to you about what option might be best for you.
What is a Civil No-Contact (50C) Order?
A Civil No-Contact (50C) Order is a restraining order that is designed specifically for victims of sexual assault or stalking who do not have a “personal relationship” with the person who harmed them. It is different from a general restraining order because it allows a judge to order more specific forms of protection for a victim. However, it gives less protection than a Domestic Violence Protective Order (DVPO) because law enforcement has less ability to enforce it than they do a DVPO. It also has less protections that you can ask a judge for than a DVPO. Nonetheless it can be an effective tool for ordering someone who you do not have a personal relationship with to stay away from you.
In order to file for a Civil No-Contact Order, you must not have a “personal relationship” with the person who harmed you and you must have been the victim of “unlawful conduct.”
“Unlawful conduct” is defined in North Carolina General Statute 50C-1 as either nonconsensual sexual conduct or stalking committed by a person 16 years of age or older. Nonconsensual sexual conduct includes single incidences. Stalking is defined as “on more than one occasion, following or otherwise harassing another person without legal purpose with the intent to” either “place the person in reasonable fear either for the person’s safety or the safety of the person’s immediate family or close personal associates” or “cause that person to suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment and that in fact causes that person substantial emotional distress.”
A civil no-contact order protects victims from stalkers or abusers by:
- Ordering them not to visit, assault, molest, or interfere with you
- Ordering them to stop stalking or harassing you
- Ordering them not to abuse and/or injure you
- Ordering them to prohibit any contact, including by telephone, written communications, social media, or other means
- Ordering them to stay away from any venues where you may be present, including your home, school, work, or other specified locations
What Happens When They Violate a 50C Order?
With a Domestic Violence Protective Order, if someone violates it, law enforcement is mandated to arrest them for a crime called “violation of a domestic violence protective order.” However, there is no such parallel crime for violation of a 50C. Nonetheless, law enforcement can still charge the person harming you if they are committing a crime such as harassing phone calls, communicating threats, or stalking. Further, if the person harming you is stalking you while you have a Civil No-Contact Order (50C), then law enforcement can charge them with Felony Stalking rather than just misdemeanor stalking because they are stalking you in violation of a court order.
In addition, the Civil No-Contact Order statute, 50C, specifically allows for you to enforce the order through contempt of court. This is done by you going back to civil court and filing a motion for show cause to ask that the judge hold the person who harmed you in either civil or criminal contempt of court. If you would like assistance in trying to determine whether and how to enforce your 50C, please call Amily at the Scharff Law Firm and she would be happy to talk to you about what option might be best for you.
How to File a Protective Order/Restraining Order in North Carolina
If you are considering filing for a protective order against someone who is harming you, it is helpful to know and understand the process as much as possible ahead of time. The court process and paperwork required to complete a protective order can sometimes be overwhelming, especially when you are already experiencing a trauma.
The process for filing for a protective order varies depending on the type of protective order and the county in which you are filing. You can always file for a protective order in the clerk’s office during normal business hours. In some counties, like Wake County, you may be able to file for a Domestic Violence Protective Order remotely at a local domestic violence crisis center using “electronic filing.” If you are seeking a protective order after regular business hours or on weekends, some counties allow you to request a protective order at the magistrate’s office, and others, like Wake County, do not. You can seek non-legal support from the community-based domestic violence agency in your county which employs advocates knowledgeable about the local practices and who can often provide court advocacy through the process of filing for a DVPO. Locate the domestic violence crisis agency nearest you.
You may have questions about initially filing for a protective order that court personnel and community-based advocates can’t answer. Legal questions such as whether you should file a protective order at all, what you should write on the Complaint in order for the Judge to best understand your situation, which type of protective order to file for, and other complicated issues such as custody or specific issues related to the LGBTQ population are often better handled by an attorney. Amily is knowledgeable about these and other issues relating to the protective order process and is happy to support and guide you through this process. Please contact Attorney Amily McCool at the Scharff Law Firm to set up a free consultation today. We would love to talk to you about your situation and help guide you through this process.
Protective Order Hearings
Filing for a protective order is just the first step in the process. In the vast majority of cases, when you initially go before a Judge, you will be requesting an emergency protective order. The person harming you will not be there the first time you go before a Judge asking for protection. If the Judge grants your request for an emergency protective order, the initial order will only be very temporary because the person harming you did not have an opportunity to tell their side of the story. The Judge will give you a date within 10 days to return to court to have a hearing on whether the emergency protective order should be extended for up to a full year. The person harming you will have an opportunity to be present at that hearing, including an opportunity to have an attorney with them, to tell their side of the story. If the Judge does not grant your initial request for an emergency protective order, you will also be given a chance to come back within 10 days to still have a hearing to determine if you should be granted a protective order for up to a year.
While many people file the paperwork for a protective order without the assistance of an attorney, the idea of having to return to court where the process is confusing and the person harming them will be there is often overwhelming and anxiety-producing. There are many benefits to having an attorney at the return hearing only some of which are:
- An attorney can negotiate directly with the person who harmed you or their attorney to try to settle the case without you having to testify at a trial
- Having an attorney will “even the playing field” in the event the person harming you comes to court with an attorney
- An attorney is knowledgeable about the laws which apply to your case and how to argue them in order to best situate you to get the protection you need
- An attorney provides a “buffer” between you and the person who harmed you while in court
- An attorney can strategize with you about the case, including gathering evidence and subpoenaing witnesses
- An attorney is knowledgeable about trial practice in the event that the case goes to hearing
- An attorney can advise you about your legal options, including the various remedies that are available with protective orders
- An attorney can assist you in trying to obtain temporary custody in the best interest of your child(ren) if you have children with the person who harmed you
- An attorney can help you understand unique issues facing LGBTQ victims of domestic violence and stalking
- An attorney can help explain the impact of obtaining a protective order and how to enforce it after you obtain one
Attorney Amily McCool has been assisting victims of domestic violence and stalking for 18 years. She is an experienced trial attorney specifically having been a prosecutor for four years in which she primarily prosecuted domestic violence cases. In addition, she has supervised a staff of attorneys advocating for victims in protective order cases for much of the last 5 years. She has a reputation for fighting zealously for domestic violence victims and would be happy to assist you through the protective order process. Contact her today at the Scharff Law Firm to discuss how she can help you with your protective order or other questions relating to domestic violence and stalking.