It isn’t unusual for clients in family law cases to approach me with questions about protective or restraining orders. Sometimes the client has been the victim of domestic abuse or is being harassed by an ex. Sometimes the client has just been served with a protective order by a sheriff’s deputy and want to know how this impacts their rights. In both cases, the situation is complicated because most people’s knowledge of protective orders is mainly shaped by what they’ve seen on television– and North Carolina law is not always the same as the law on your favorite crime drama.
A Bit of Background
In North Carolina there are a couple of different laws under which a person can obtain an order requiring another person to refrain from contacting them. Here I will be focusing on domestic violence protective orders, which are controlled by North Carolina General Statute 50B (and are hence sometimes called “50B Orders”). 50B orders apply in cases where the petitioner (the person who wants to get the protective order) has a personal relationship with the defendant (the person against whom the petitioner is seeking the order).
Under this law, “personal relationship” means more than friendship. You have a personal relationship with someone if you are (or were) married, if you have a child in common, if you are of the opposite sex and dating, if you have a parent/child or grandparent/grandchild relationship, or if you are housemates or former housemates. Notice that under current North Carolina law, to get a protective order against someone that you are dating, the other person must be of the opposite sex. Same-sex couples who are dating are not eligible for a protective order unless they are living together (housemates can apply for a protective order against each other under 50B regardless of gender) or have a child in common.
If you have a personal relationship, you can request a protective order if the other party has:
- Intentionally caused you bodily injury
- Attempted to cause you bodily injury
- Placed you in fear of imminent, serious bodily injury
- Subjected you to continued harassment that causes substantial emotional distress
- Commit a sexual offense against you
- Done any of the above to a minor child under your care
Filing for a Protective Order
If you and the other party have a personal relationship as outlined above, you may be eligible to request a protective order. The first step is to go to the clerk of court for your county. They will have the necessary forms for you to fill out to file for the order, but the clerk cannot offer you legal advice. If you aren’t sure if you have the right type of relationship to the other party, or if you have questions about whether what the other party has done to you is enough to get a protective order, or if you find the whole process confusing and need help sorting out and telling your story, you need to talk to a professional familiar with protective orders who can offer you expert advice. This means finding an attorney with 50B experience.
Once you’ve filled out the request for a protective order and summons that calls the other party to court to answer the petition, the sheriff’s office will serve the order on the other party. It might take several days for the court to hear your case and decide on whether or not to grant the order. In the meantime, you can request an emergency hearing before the judge without the other party present. At the emergency hearing, you will have the opportunity to convince the judge that either you or your children are in immediate danger and need a temporary order in place. This temporary order will protect you from the other party until the court date.
For a long term protective order to be entered, the other party will have to have a chance to present his or her side of the story. On your hearing date, you will have a chance to explain to the judge why you need a year-long protective order. You can testify yourself about what the other party has done, call witnesses to testify for you, and offer other physical evidence such as phone records and text messages. The defendant will also have a chance to put on his or her own evidence, to call witnesses, and to ask you questions about your own testimony.
Many times I’ve seen petitioners who had strong cases denied their protective order because they did not know how to present their case. Often petitioners do not know how to tell their story in a way that will persuade the judge, and few petitioners fully understand the court’s rules on what evidence is and is not allowed. An experienced attorney will be able to help you organize your story and collect the evidence you’ll need to have the best chance at getting an order.
What Good Will it Do?
Many personal safety experts are very suspicious of protective orders, rightly pointing out that a piece of paper cannot actually stop an abuser from hurting you. A 50B order, however, does offer several protections that are very helpful in some cases. For example, a protective order can require an abuser to refrain from contacting you and to stay a certain distance away from you and your children. If your order forbids the other party from contacting you and he calls you on the phone to threaten you, or sends you harassing text messages (or initiates any type of contact at all), you can contact the police and have him arrested for violating the order. If the order requires him to stay a certain distance away from your home and you see him driving past, you can contact the police and have him arrested for violating the order. This gives you a chance of stopping an abuser before he can hurt you or your family again.
Perhaps most importantly, a protective order can forbid the other party from obtaining guns and require that he surrender any guns that he owns to the police. A victim is much more likely to be hurt or killed if the abuser has access to firearms, and disarming an abuser will make you and your family far safer.
If you are dealing with domestic violence or threats of domestic violence and want to take the steps necessary to protect your family, I suggest that you contact an attorney with 50B order experience. Your attorney can help you decide if a 50B order is right for your situation, organize your case and help you prepare evidence to maximize your chance of getting the order, and advocate for you throughout the process.