You may know that you can seek a protective order or restraining order against someone who has threatened you or your family. However, the actual process of seeking a protective order can be complex, creating more stress for those who are already under strain due to threats of violence. Experienced family law attorneys, like Weaver, Bennett & Bland, P.A., work with clients to simplify the process of filing a temporary protective order.
Wondering who can apply for a protective order? Interested in the practical protections these orders provide? Continue reading to learn the specifics of temporary protective orders under North Carolina law.
What Is a Temporary Protective Order?
A temporary protective order (TPO) is designed to protect someone who has been threatened, abused, or harassed by another. There are several different types of protective orders and each type varies based on the relationship between the person seeking the protective order (the Plaintiff) and the person they’re trying to restrain (the Defendant).
TPOs generally prevent the Defendant from contacting the Plaintiff or placing themselves within a certain distance from the Plaintiff (often 500 feet or 1,000 feet). If the Plaintiff and Defendant live together, this will require the Defendant to find alternative living arrangements. If a TPO Defendant is found to have violated the terms of the TPO, they can be arrested and prosecuted.
As the term “temporary” in the name implies, a temporary protective order is designed to be a short-term solution. It’s often issued after a brief emergency hearing, with the judge scheduling a follow-up hearing within the next few weeks to assess whether the TPO should be vacated or converted into a more permanent restraining order.
Types of Protective Orders in North Carolina
There are two types of protective orders available in North Carolina –domestic violence protective orders (DVPOs) or restraining orders, and civil no-contact orders (CNCO).
Ex Parte Temporary Protective Orders
An ex parte (or “on behalf of”) temporary protective order can provide immediate legal protections to those who are at heightened risk of domestic violence.
Generally, constitutional due process protections prevent trial courts from making any decisions or issuing orders without giving all parties notice and a chance to respond. TPOs are an exception to this rule, and they allow a judge to issue an order on an emergency basis if the Plaintiff can show that they’re at serious risk of harm or continued severe harassment. Most DVPOs and many CNCOs commence with an ex parte hearing.
If a judge declines to issue an emergency TPO the same day the petition is filed, they are required to set the matter for a hearing by the end of the next business day (or within 72 hours – whichever comes first). These hearings can be conducted over Zoom or another video conferencing platform.
If a judge does issue an emergency TPO, they will also have to schedule the matter for a court hearing so that the Defendant has an opportunity to be heard before any further action is taken. This hearing should be scheduled within ten days after the day the order is granted (or within seven days after the Defendant is served – whichever is later).
Domestic Violence Protective Orders (DVPOs)
Under North Carolina law, domestic violence occurs when someone with whom you have a “personal relationship” (past or current) commits any of the following acts upon you or your minor child:
- Assault: Threatening actions or words placing you or your household members in fear of serious bodily injury
- Battery: Causing bodily injury to household members
- Harassment: Unwelcome conduct that is severe enough to inflict substantial emotional distress
- Rape or Sexual Offenses: Unlawful sexual activity against the will of household members
If you or your household members have been victimized by acts like these, you may be able to seek an ex parte temporary protective order and a domestic violence protection order (DVPO), also called a “50B” order, against the assailant.
North Carolina law defines “personal relationship” to include:
- Current spouses
- Opposite-sex partners who live together or have lived together in the past
- Opposite-sex partners who are in a dating relationship
- Persons who have a child in common
- Parents, children, grandparents, and grandchildren
- Current or former household members (including same-sex relationships)
Whether a TPO has been issued or you are seeking a final DVPO, the process is largely the same. The matter will be set for a hearing, and you will be asked to present evidence showing that you are entitled to a DVPO. The Defendant will also be allowed to present evidence in their defense.
If the judge determines that you have shown you have a personal relationship with the abuser and have established one or more of the domestic violence acts listed above (assault, battery, rape, or threats), a DVPO can be issued for up to one year (and then renewed for up to an additional two years after that).
If you lack a personal relationship with your abuser under the above definitions, you can still seek a protective order – but it will be a general civil no-contact order instead of a DVPO.
Civil No-Contact Orders (CNCOs)
The process of seeking a civil no-contact order (CNCO), also called a “50C” order, is similar to seeking a DVPO – the key difference is the lack of a “personal relationship” between the Plaintiff and the Defendant. A CNCO may be issued in cases involving stranger or acquaintance violence, school violence or threats, or workplace violence.
As with a DVPO, a CNCO Plaintiff can first seek an emergency ex parte temporary protective order to provide immediate protection, then request a more permanent CNCO lasting one year or longer.
How Can a Temporary Protective Order Help You?
Listed below are a few ways temporary protective orders can provide safety for you and your family. Temporary protective orders:
- Direct the Defendant to refrain from threatening, harassing, following, or abusing the Plaintiff
- Order the Defendant to stay away from the Plaintiff’s home, school, workplace, or childcare facility
- Grant the Plaintiff possession of the residence (if the Defendant also lives there)
- Grant the Plaintiff temporary custody of any minor children
- Restrict or prohibit the Defendant’s visitation with any minor children
- Order spousal support
- Order child support
- Order the Defendant to complete a batterer’s intervention program
- Prohibit the Defendant from purchasing a firearm
- Order that the Defendant’s firearms be temporarily removed from their possession
- The judge may grant additional relief depending on the circumstances of the case.
Who Can Be Restrained by a Protective Order?
A DVPO can apply to a family member, current or former intimate partner, or household member who has engaged in domestic violence (including verbal threats) against you or a member of your household.
A CNCO can apply to anyone who has harassed you, physically abused you, or made threats indicating they plan to harass or abuse you.
Someone who violates a DVPO or CNCO can be charged with a Class A1 misdemeanor, which carries a penalty of up to 60 days in jail. However, if the Defendant commits a crime while also violating a DVPO or CNCO (such as breaking into the Plaintiff’s home), they can be charged with a felony.
Defendants who have two or more convictions for violating a protective order – or who violate an order while possessing a deadly weapon – can also be charged with a Class H felony and sentenced to six months or more in prison.
How to File for a Temporary Protective Order in NC
Plaintiffs can seek a protective order in North Carolina by filing a complaint in the county where the Defendant lives or the county where the Plaintiff lives. If the Defendant lives outside North Carolina, the filing issue can be more complicated – you will likely want to consult an attorney.
The paperwork needed to file a DVPO or CNCO petition should be available at the county clerk’s office. Many county courts have domestic violence programs or clinics that can provide Plaintiffs with assistance in completing the paperwork and give some guidance on next steps.
North Carolina Protective Order Assistance from Family Law Attorneys
Because temporary protective orders are generally sought in emergency situations, courts have made it easier for victims of violence or harassment to seek a TPO without needing an attorney’s assistance. The paperwork a Plaintiff will need can be obtained from the county clerk, and there may even be court staff available to help. There’s no filing fee for a TPO petition.
However, facing your assailant in a court hearing can be a stressful process – especially when your assailant plans to argue that you are not entitled to a protective order or has an attorney representing him/her. Because of the strict timelines associated with protective order hearings, you may not have much time to prepare.
A practiced attorney can help you prepare your strongest legal case for the hearing, gathering evidence and drafting arguments that will help provide the judge with a full picture. By hiring an attorney, you will be better able to focus your energy on moving forward and healing.
If you have additional questions about temporary protective orders, contact the Matthews, NC law office of Weaver, Bennett & Bland. Call us at 704-844-1400 or reach out online to set up a meeting with one of our family law attorneys.