Charlotte Domestic Violence Family Lawyer
What Is Considered Domestic Violence in North Carolina?
In another section of this website, we discussed the issue of what constitutes a legal separation, and how that concept relates to obtaining a divorce in the State of North Carolina. Unfortunately, domestic violence is frequently a component of divorce and the dissolution of other domestic relationships involving children. Specifically, it is often the case that an incident of domestic violence is the underlying cause of a legal separation of a married couple (or even the cause of a separation of two unmarried persons living together who have children in common).
In brief, an incident of domestic violence usually involves:
- A situation whereby one party has attempted to cause bodily injury, or has intentionally caused bodily injury, to the other party or to another member of the household; or
- A situation whereby one party has placed the other party, or another member of the household, in fear of imminent bodily injury; or
- A situation whereby there is an ongoing and continuous infliction of harassment that rises to such a level that the affected party suffers substantial emotional distress.
It is important to note that an act of domestic violence is not confined by the Courts to an incident whereby there was a physical assault. Rather, words alone can rise to the level of an act of domestic violence if the affected party feels that he/she may be subject to imminent bodily injury.
Domestic Violence Protective Orders
In the event that a party feels that he/she has suffered through an act of domestic violence, or ongoing domestic violence, there is a certain process for obtaining a domestic violence protective order.
Specifically, the first step requires that you proceed to your local courthouse (or the magistrate's office if it is after hours) immediately following the incident of concern. We say "immediately" because the longer you wait to file your claim, the more likely it is that the judicial official who reviews your claim will question whether the incident truly occurred or whether you are truly in fear of imminent bodily injury. Once you arrive at the courthouse or the magistrate's office, you will be asked to fill out a Complaint for Ex Parte Domestic Violence Protective Order (it is called "Ex Parte" because you are asking for relief to be temporarily granted without the testimony of the offending party).
In the Complaint, you set forth the details of the incident and the action(s) of the other party which either caused injury to your body, or the body of another household member, and/or those action(s) or words which placed you, or another household member, in imminent fear for your safety. The Judge or the magistrate will then review your Complaint and ask you to testify as to the events and details set forth in your Complaint. At that point, the Judge or magistrate will either deny your request for an Ex Parte Domestic Violence Protective Order or, in the alternative, the Judge or magistrate will grant your request.
If your Complaint is granted, an Ex Parte Domestic Violence Protective Order will be entered by the Court and served by a Sheriff upon the party who is alleged to have committed the act of domestic violence. This Order will usually require that the Defendant leave the residence, surrender any firearms to the Sheriff, not have any contact with the Plaintiff, and that they appear for a hearing in approximately ten days (this is why family law attorneys informally call this a "10 day Domestic Violence Protective Order").
The next hearing will be where the Defendant has his/her first opportunity to tell the Court his/her side of the story through testimony, the introduction of evidence to the contrary, and by offering witnesses for consideration by the Court. Of course, you will also have to testify in support of your Complaint and you will be subject to cross-examination by the Defendant.
At the conclusion of the hearing, the Court will either deny your Complaint (and the restrictions imposed upon the Defendant will be lifted) or, in the alternative, your Complaint will be granted. If granted, an Order will be entered which requires the Defendant to have no contact with you for one year. Further, the Order will usually grant you possession of the residence where you resided with the Defendant. Additionally, the Order may contain specific terms for how the Defendant will exercise visitation with your children in common, and/or how you and the Defendant may communicate regarding issues affecting your children in common.
The Serious Implications of a Protective Order
Obviously, the issuance of a domestic violence protective order is a very serious matter. Specifically, it can serve to eject a party from his/her residence for at least one year, and it can have a serious temporary impact upon that party's ability to participate in the lives of his/her children. As such, Coggin Law routinely caution clients that they should not proceed in this manner for any improper purpose (such as filing a Complaint made up of false allegations merely so he/she may obtain a separation from his/her spouse).
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