Restraining Orders - Civil Methods of Relief
Even if you are the victim of a criminal case and you have the protections of bond conditions, it may be in your best interest to also pursue civil remedies to ensure additional security. What type of civil remedy you pursue depends on your case, and the following discussion is simply an outline of three (3) such remedies: restraining orders and Rule 65 Injunctions.
To get a restraining order, the first thing you need to figure out is whether the relationship you have with the person you are trying to avoid amounts to a “personal relationship.” If you have a personal relationship (as defined in North Carolina Gen. Stat. § 50B-1) then a 50B is the more appropriate restraining order, but if you do not then a 50C is the avenue you should probably pursue.50B’s:
Domestic Violence is a growing problem in the United States, and in North Carolina it is no different; the Legislature has reacted appropriately and afforded citizens, who are either in fear of domestic violence or are the actual victims of it, a means by which to protect themselves or their children. If a “personal relationship” exists (meaning you are or were spouses, roommates, are related in providing care to a minor, have a child together, or dated) and there is “danger of serious and immediate injury” to either a child in the applicants care or the applicant themselves, you can ask the court for emergency relief. If there is a “danger of acts of domestic violence” to the child or the applicant, you can petition for an “ex parte” order, which is a way to gain protection until the Domestic Violence Protective Order “one year” hearing occurs. For both ex parte and emergency applications, in most scenarios the defendant is not present, and the hearing only requires the applicant to satisfy the court that a need for protection exists until the more permanent “one year” hearing.
If the court is satisfied with the showing presented, during the pendency of the “ex parte” or emergency order the court has the ability to tailor conditions it imposes on the defendant to ensure the applicant (and any others the order covers) are sufficiently protected. Examples of things that can be included are:
- That the defendant not (among other things) “interfere” with the plaintiff or any minor(s) living with the plaintiff. Of note with this specific condition is that a police officer who has probable cause to think the defendant violates this subsection shall arrest the defendant;
- That the applicant is given exclusive use of the shared residence of the parties. This means that the defendant has to sleep and live somewhere else until the matter is resolved;
- That the applicant is given exclusive use of any pets the parties may have, or any vehicles the parties may own;
- That the defendant “stay away” from the residence of the applicant or anywhere they are sleeping, where they work, or anywhere else they may lawfully be. As for where the plaintiff sleeps, if a police officer has probable cause to think the defendant is in violation of this condition, they shall arrest the defendant;
- Temporary custody of any children can be given to the applicant;
- The defendant can be precluded from having any firearms (and they must turn them in), even if they are a member of the armed forces or a law enforcement officer; or
During the pendency of the ex parte or emergency order, the defendant can open themselves up to additional criminal charges if they are found in violation of any of its conditions, even if the ex parte or emergency order is later found baseless at the “one year” hearing. Further discussion of the impacts of Domestic Violence Protective Order Violation is discussed here. After the “one year” hearing is set and the defendant receives notice, the applicant must show to the court that acts of domestic violence actually occurred (whether it be physical violence or sufficient emotional injury). Domestic violence is defined as attempting to or actually causing bodily injury, placing the applicant or a member of their family or house in fear of injury or continued harassment to such an extent that it places them in “substantial emotional distress,” or any act as defined in North Carolina Gen. Stat. § 14-27.2 through North Carolina Gen. Stat. § 14-27.7 (which encompass criminal charges like rapes and other sexual offenses). If the court is satisfied with the showing, the order can be entered (with additional or less conditions as those set forth in the ex parte or emergency order) for no more than one year, although the 50B can be renewed for additional time-periods.
The attorneys at Arnold & Smith, PLLC have years of experience dealing with domestic violence protective order’s, 50b’s and 50c’s. Our experienced Divorce attorneys including a North Carolina Board Certified Specialist in Family Law are here to help with this and other civil related matters. Contact us today to schedule a consultation at 704-370-2828 or view additional family law related articles and frequently asked question videos here: http://www.arnoldsmithlaw.com/family-law-and-divorce.htmlRelated Articles: