Restraining Orders - 50C and R65
Most people when referring to a “restraining order” are actually describing what is called a Domestic Violence Protective order. These orders are often referenced as a “50B”, a reference to the specific statute that addresses domestic violence that takes place between individuals that have a personal relationship. This component of having a personal relationship with the other individual is actually one of the requirements for being successful in obtaining a 50B. But what if you need protection from a person with whom you do not have a personal relationship with? This scenario was what legislatures had in mind when drafting in passing the domestic violence protective order known as a “50C”.50C’s
For those who do not have the personal relationship required to get a 50B, you are not without available remedies: 50C’s cover situations where a person is victimized by “unlawful conduct,” even if no physical injury is present. North Carolina Gen. Stat. § 50C-1 defines “unlawful conduct” as it pertains to 50C’s as “nonconsensual sexual conduct” and “stalking.” Click the following links for a more substantive discussion of stalking and cyberstalking. The process by which a person gets a 50C is almost identical to the way in which one gets a 50B: application is made to the court for a temporary (“ex parte”) restraining order that remains in effect for ten (10) days until the more permanent hearing.
After the court is satisfied with the applicant’s showing it may impose restrictions on the defendant; however, while some of the restrictions it may impose mirror those of 50B’s, there are significantly less options at the court’s disposal (given the lack of personal relationship between the parties). Some conditions which may be imposed on the defendant are that they not interfere, stalk, harass, abuse, contact, or be near the victim. 50C’s also give the court flexibility to impose “other” relief necessary to protect the applicant, including ordering attorney fees be paid by the defendant. One main difference which reflects the heightened sense of protection the laws afford those in personal relationships is that violation of a 50C is punishable by only contempt, whereas violation of a 50B is punishable by a criminal charge.R 65 Temporary Restraining Orders (TRO’s) and Injunctions
Lastly, there is another way by which you can petition the court to protect you and prevent the other party from being near you or from doing certain things. Rule 65 of the North Carolina Rules of Civil Procedure is extremely similar to 50C’s, in that emergency “ex parte” temporary orders may be granted without the other party being notified only after the court is satisfied: 1. that the moving party has certified an “irreparable” harm will result before the other side can be heard and, 2: the applicant delineates the efforts made to give notice to the opposing party. These temporary orders may only be in existence for a maximum of ten (10) days unless the court is convinced of a good reason why it should be extended or the other party consents to it being made in effect for longer (which would obviously require their being notified).
When the TRO is granted without notice and the moving party also asks for a preliminary injunction, the case is set for the next available day (and takes precedence over everything other than older similar motions) and the applicant must proceed with their motion for a preliminary injunction. In the event they do not do so, the TRO terminates due to their inaction. If they are successful in their motion, the other party will be enjoined from doing something or required to do something for a more substantial period of time. However, subsection (a) of Rule 65 states that a party will not be granted a preliminary injunction if notice to the other party has not occurred.
If the defending party wishes to petition the court to change or terminate the TRO that was previously granted, they must give the party who petitioned for the TRO two (2) day’s notice, unless the Court authorizes a shorter period of time. When the defending party is granted the hearing, the motion must be heard and a ruling rendered “as expeditiously as the ends of justice require.” If the defending party is successful, an award of damages could be ordered pursuant to subsection (e) of Rule 65.
Before the court grants the preliminary injunction or restraining order, in some cases the moving party has to post a security in the event harm is inflicted on the defending party (similar to a bond). The purpose for doing so is if, unlike what the applicant stated in their Motion, harm is actually inflicted on the defending party by the granting of the TRO or Preliminary Injunction, they should compensate for that harm. However, subsection (c) of Rule 65 states that neither the State (nor someone acting on its behalf) nor those in certain domestic disputes shall be required to post the security. After the required security has been made, the court is then authorized to set forth the specific acts it is preventing, which can include no contact.
If the TRO or preliminary injunction is granted, what must Judges include in the Order? First, it must state why the Order was granted; second, it must be detailed in its terms, and lastly it must describe “in reasonable detail” what is required to be done or not done. TRO’s and preliminary injunctions are only binding (i.e. enforceable) against the parties, as well as a variety of people working for them or with them.
One oddity of the Rule: when the injunction or TRO expires, the order or judgment may award damages against the applicant (and any sureties) even if there is no evidence of “malice or want of probable cause” in the application. Arguably, no matter the reasons for requesting it, and no matter the reasons for it being granted, there may be a basis to request damages against the person who sought the court’s protection without any showing. However, requesting damages is one thing, and having them ordered is another, and so a petition without any evidence of wrongdoing will most likely fall on deaf ears.Conclusion:
Clearly, given the complexities by which one can try and keep another person away, as well as the various methods by which the end can be achieved (and the corresponding risks entailed in each avenue), contacting an attorney or having an attorney represent you may be in your best interests. Regardless of whether you are seeking the court’s protection or defending against a baseless motion against you, at Arnold & Smith, PLLC, we have Attorneys who are competent in handling whatever you are faced with.Related Articles: