Domestic Violence
Definition
Domestic Violence has a specific definition in North Carolina.
It is the commission of one or more of the following acts upon
an aggrieved party or upon a minor child residing with or in the
custody of the aggrieved party by a person with whom the
aggrieved party has or has had a personal relationship:
(1) Attempting to cause bodily injury or intentionally causing
bodily injury; or
(2) 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 by statute and that
rises to such a level as to inflict substantial emotional distress);
or
(3) Committing any act defined in G.S. 14-27.2 through G.S.
14-27.7.
Domestic violence does not include acts of self-defense.
Domestic violence is distinguished from other violent offenses in
that there must be a personal relationship between the person
alleged to have committed the violent act and the party
aggrieved by the violence.
Taking Action as a Victim of Domestic Violence
Any person who resides in North Carolina can file a civil action
or can file a motion in an existing domestic action alleging acts
of domestic violence against him/herself or a minor child who
resides with or who is in the custody of such person. You are
entitled to file this action without an attorney's assistance. If
you live in Johnston County, North Carolina, forms are
available in the Office of the Clerk of Superior Court in
Smithfield. No court costs are assessed to file, issue, register,
or serve a domestic violence protective order or petition for a
protective order or witness subpoena.
You do not have to proceed with an attorney, but you are also
not entitled to a court appointed attorney. If you can afford an
attorney, it is a good idea to consult with one and have one
represent you at the return hearing. If you cannot afford an
attorney, there are a number of agencies that may be able to
assist you.
Because hearings on domestic violence are handled rather
quickly, you should not delay in contacting an attorney. As
often happens, the day of the return hearing, you will see that
the defendant has an attorney. The court may not grant you a
continuance on the day of the return hearing in order to give
you time to hire an attorney. Marie Mobley has the experience
to assist you in court.
Emergency Relief
A party may move the court for emergency relief if he or she
believes there is a danger of serious and immediate injury to
him/herself or a minor child. A hearing on the motion for
emergency relief, where no ex parte order is entered, shall be
held after 5 days notice of the hearing to the other party or
after 5 days from the date of service of process on the other
party.
Prior to the hearing, if it clearly appears to the court from
specific facts shown that there is a danger of acts of domestic
violence against the aggrieved party or a minor child, the court
may enter orders as it deems necessary to protect the
aggrieved party or minor child. A temporary order for custody
entered ex parte and prior to service of process and notice
shall not be entered unless the court finds that the child is
exposed to a substantial risk of physical or emotional injury or
sexual abuse.
If the court enters an ex parte order, the court shall hold a
hearing within 10 days from the date the order is issued.
Other Relief
If the court finds that domestic violence has occurred, the court
shall grant a protective order (DVPO) restraining the defendant
from further acts of domestic violence. The court can order
several types of relief, including:
(1) Directing a party to refrain from acts of domestic violence;
(2) Granting a party possession of the residence of the parties
and excluding the other party from the residence;
(3) Requiring a party to provide a spouse or his/her children
suitable alternate housing;
(4) Awarding temporary custody of minor children and
establishing temporary visitation rights;
(5) Ordering the eviction of a party from the residence and
assistance to the victim in returning to it;
(6) Ordering either party to make payments for support of a
minor child as required by law;
(7) Ordering either party to make payments for the support of
a spouse as required by law;
(8) Providing for possession of personal property of the parties;
(9) Ordering a party to refrain from threatening, abusing, or
following the other party; harassing the other party; or
otherwise interfering with the other party;
(10) Awarding attorney's fees to either party;
(11) Prohibiting a party from purchasing a firearm for a time
fixed in the order;
(12) Ordering any party the court finds is responsible for
domestic violence to attend and complete an abuser treatment
program;
(13) Including additional prohibitions or requirements that the
court deems necessary to protect any party or any minor child.
DVPOs shall be for a fixed period of time, not to exceed two
years. The court may renew a protective order for a fixed
period of time, upon a motion by the aggrieved party filed
before the expiration of the current order and upon a showing
of good cause. The defendant does not have to commit an act
of domestic violence since the entry of the original order in
order for you to get the order renewed. However, a
temporary custody award entered as part of a DVPO may not
be renewed.
You should keep a copy of the current DVPO with you at all
times.
If You're Accused of Domestic Violence
If you are accused of domestic violence and served with an ex
parte domestic violence protective order, you have several
reasons to seek the assistance of an attorney. If you are in the
United States with a Visa or as a Permanent Resident Alien or
desire to be a citizen of this country, you have even more
reasons to seek the assistance of an attorney.
You may have already been evicted from your home and given
only a few minutes to gather enough personal items to last you
a few days. You may have already lost possession of your
vehicle and been ordered to surrender any firearms you own to
the local Sheriff. You may have even lost custody and/or
visitation of your children. Contrary to how it may seem, you
do still have rights, both procedural and substantive. By law,
the court only has a few days within which to hold a hearing on
the allegations made against you. The court may not grant you
a continuance the day of court. As soon as possible after you
are served, contact Marie Mobley to discuss representation.
