In North Carolina, the law provides a quick and crucial way to protect victims of domestic violence through something called an Ex Parte Domestic Violence Protective Order (DVPO). When someone is in immediate danger due to domestic abuse, they can ask for this order.
Let’s look more in-depth at an ex parte hearing, what happens there, and who can get relief from abuse by filing the order.
The DVPO Process in North Carolina: Key Steps
When someone files an ex parte application, the court acts quickly, setting up an emergency hearing within 72 hours or by the next court day.
During the hearing, if the presiding judge finds that the person accused of domestic violence has firearms, they must give them up. This rule is to ensure the safety of those at risk.
An ex parte court hearing is more than just a legal step. It’s a crucial protection for people facing domestic violence in North Carolina.
1- Filing a Complaint and Requesting an Ex Parte Order
In North Carolina, if you’re facing domestic abuse, you may file a Complaint for a Domestic Violence Protective Order (DVPO), also known as a 50B order.
Along with this Complaint, you may request an Emergency Ex Parte Order. Ex parte orders are temporary orders granted without the defendant’s presence (the abusive individual).
This Ex Parte Order motion is often processed the same day you file the Complaint. The court clerk (judge) then schedules a hearing within 10 days to decide what will happen in the future after the ex parte court order expires.
2- Service of the Defendant
The defendant must be formally notified of the hearing and the Ex Parte Order. This sheriff typically does this. The defendant must receive notice before the hearing date, or the court will postpone the hearing to a later date.
3- The “Return” or “10-Day” Hearing
Within 10 days of the Ex Parte Order, a hearing takes place to determine if this order should be extended as a DVPO for up to a year.
One of the following scenarios can unfold at this hearing:
- The defendant (the opposing party) contests the order, a hearing occurs where both parties present their evidence, and the judge decides whether to continue or dismiss the DVPO
- The order is dropped if the plaintiff doesn’t attend, and the Ex Parte Order becomes invalid. (You are the plaintiff if you filed the ex parte order. If you don’t attend the hearing, you lose the protections of the ex parte orders.)
- If the defendant doesn’t attend, the judge usually extends the DVPO for one year with terms similar to the Ex Parte Order.
- The defendant attends but doesn’t contest the order. The judge often extends the order for one year without a trial or testimony.
4- Types of Orders in a DVPO
A DVPO can command the abuser to take various actions or refrain from certain behaviors. These include staying away from the victim, ceasing all contact, vacating shared living spaces, and not committing any further abuse. Sometimes, the DVPO may also involve temporary custody issues or visitation arrangements.
This process reflects North Carolina’s commitment to addressing domestic violence with urgency and providing immediate protection to victims.
Child Custody in Ex Parte Hearings and DVPO Hearings
Ex Parte Hearings and Temporary Custody Order
During an ex parte hearing, the court can make temporary child custody decisions if there’s evidence showing the child is at substantial risk of physical or emotional harm.
These temporary orders are designed to protect the child until a full hearing occurs, usually within 10 days.
DVPO Hearings and Custody Decisions
At the DVPO hearing, the court examines the situation in more detail, considering evidence from both parties. The judge can make more permanent custody decisions, always prioritizing the child’s safety and well-being.
These decisions may include who gets custody, visitation rights, and any necessary conditions to ensure the child’s safety.
Importance of Legal Advice
Given the complexity and sensitivity of child custody issues, seeking legal advice is crucial. A lawyer can help present your case effectively and ensure the best interests of the child are at the forefront of any custody decisions.
In both ex parte and DVPO hearings, the primary focus is on the safety and welfare of the child. The court’s decisions aim to provide immediate and longer-term protection in the context of domestic violence.
Enforcement and Consequences of Violating a DVPO in North Carolina
General Enforcement of DVPOs
In the courts in North Carolina, DVPOs, also known as 50B orders, are court orders mandating the abuser to stay away from the victim. For a DVPO violation, law enforcement officers can arrest the perpetrator immediately.
While a DVPO is not a criminal conviction and doesn’t appear on the defendant’s criminal record, violating it can lead to arrest and criminal charges.
Criminal Consequences of Violating a DVPO
- A basic violation of a DVPO, where a person knowingly breaches a valid order, is a Class A1 misdemeanor under G.S. 50B-4.1.
- Committing a felony in violation of a DVPO is a more serious offense. If the individual commits a felony while a valid DVPO prohibits such behavior, the offense is classified one class higher than the committed felony. For example, a Class F felony would be elevated to a Class D felony.
- If a person violates a DVPO for the third time, it is deemed a Class H felony.
- Violating a stay-away condition of a DVPO while in possession of a deadly weapon is also a Class H felony.
- Illegally entering a safe house where the protected person resides under a DVPO is another Class H felony.
- G.S. 14-269.8 makes it a Class H felony to possess, purchase, or attempt to possess or purchase a firearm or related permits while a DVPO is in effect.
- Under the Cyberstalking statute (G.S. 14-196.3(b)(5)), using an electronic tracking device to track someone’s location while under a DVPO is a Class 2 misdemeanor.
Preparing for an Ex Parte Hearing in North Carolina
When filing a DVPO and asking for an ex parte hearing, one party files the petition, and the other is the defendant who responds.
Working with a legal professional who can represent you in the hearing gives you the best chance of a good outcome. They understand what the court clerk needs to hear in an oral argument. They also have experience knowing what will help and hurt your case.
However, if you decide to go through the legal proceeding alone, prepare with these steps to ensure you present the best case you know how.
1- Gathering Evidence
Collect all relevant evidence that supports your case. This includes any documentation of abuse, such as photos, messages, medical records, or police reports filed.
2- Filling Out Necessary Forms
Complete all required forms accurately and thoroughly. These forms are usually available at your local courthouse or online at the North Carolina Judicial Branch.
3- Writing a Clear Statement:
Prepare a clear and concise statement detailing domestic abuse incidents. Stick to the facts and be as specific as possible about the incidents’ dates, times, and nature.
4- Understanding Your Rights and Responsibilities:
Familiarize yourself with your rights and what the hearing entails. You have the right to ask for certain protections, like keeping the abuser away from you, your home, or your workplace.
5- Seeking Legal Advice:
Consider consulting a lawyer experienced in domestic violence cases. They can guide you through the process and represent you in court.
6- Arranging for Safety:
Plan for the safety of yourself and any child and, if necessary, find a safe place to stay, especially if you share a residence with the abuser.
7- Preparing for the Hearing:
Know what to expect at the hearing. You will need to present your evidence and statement to the judge. Be prepared to answer questions from the judge or the opposing or other party’s lawyer.
8- Knowing What to Ask For:
Be clear about what you want from the hearing, whether it’s a no-contact order, removal of the abuser from your shared home, or temporary custody arrangements.
By thoroughly preparing for your ex parte hearing, you increase the chances of obtaining the necessary protection and legal relief in North Carolina.
During the Hearing: What to Expect
Knowing how a hearing will play out can help you feel more prepared. Working with your attorney is one way to feel calm and confident. However, if you decide to represent yourself, the order in the courtroom will go something like the following step:
1- Presentation of Your Case:
You will present your evidence and statement to the judge. It’s essential to be clear, factual, and concise.
2- Questions from the Judge:
The judge may ask you questions to clarify details of your case. Answer these questions directly and honestly.
3- Opposition’s Response:
If the defendant is present, they might contest your allegations. Be prepared to respond to their statements, but focus on maintaining your composure and sticking to the facts.
4- Judge’s Deliberation:
After hearing both sides, the judge will deliberate. They will review and consider the evidence and arguments presented before making a decision.
5- Issuance of the Order:
If the judge rules in your favor, they will issue an ex parte order outlining specific protections, such as no-contact directives or temporary custody arrangements.
6- Understanding the Order:
Listen carefully to the judge’s instructions and understand the terms of the order. Ask questions if anything is unclear.
7- Next Steps:
If the ex parte order is granted, you will receive instructions on what to do next, including how the order will be enforced and what to do if the abuser violates it.
Remember, the goal of the hearing is to ensure your safety and the safety of any children involved. Being well-prepared and understanding the process can help you effectively navigate this critical step in North Carolina’s legal system for addressing domestic violence.
After the Hearing: Outcomes and Next Steps
If the judge grants you an ex parte and then a DVPO order, your protection remains in effect for a specific period, often up to a year. Make sure you understand the duration and terms of the order.
Receiving Official Documentation:
You will receive a copy of documents regarding the order. Keep this document safe; you might need to present it to law enforcement or in future legal proceedings.
Enforcing the Order:
If the abuser violates the ex parte order, you should report it to the police immediately. The order is legally binding, and violations can lead to legal consequences for the abuser.
Planning for Long-Term Safety:
Consider developing a long-term safety plan. This may include changing your daily routine, securing your residence, and maintaining contact with supportive friends, family, or a domestic violence advocate.
Seeking Further Legal Assistance:
If you need to extend the order or address other legal matters like child custody or divorce, consider consulting with a legal professional.
Accessing Support Services:
Utilize available support services for domestic violence survivors. These may include counseling, support groups, or assistance with housing and financial stability.
Navigating the period after an ex parte hearing is crucial for your continued safety and well-being. Stay informed about your legal rights and available resources in North Carolina.
We Can Help
At Plekan Law, our experienced DVPO attorneys understand the complexities and sensitivities involved in domestic violence cases. We provide compassionate, comprehensive legal support to help you confidently navigate the legal system.
Our team guides you through every step of the petition process, from filing necessary paperwork to representing you in court. We’re here to ensure your voice is heard and your rights are protected.
Let us advocate for you in this challenging time, offering the legal expertise and emotional support you need. Get in touch today for compassionate and legally sound advice.