Domestic violence. Behind closed doors, it secretly bruises the lives of millions of spouses, children, relatives, and friends each year. We’ve all seen the statistics: an estimated 10 million people in the United States are battered each year by their partners. If this is happening to you, rest assured that you are not alone and that you can get help.
Studies show that violence occurs at least once in two-thirds of all marriages. Approximately 95 percent of the victims of domestic violence are women. And roughly 40 percent of all physically abused children have also witnessed physical violence between their parents. Many of those abused children, or those who witness their mothers’ abuse, grow up to become either perpetrators or victims of domestic violence.
How can you break the cycle? Fortunately, North Carolina has special laws that can provide quick and effective, if short-term, relief for victims of domestic violence. These laws specify exactly what domestic violence is and establish a remedy that can help combat it: domestic violence protective orders.
In this chapter, we’ll be looking at:
- what domestic violence is from a legal perspective,
- what domestic violence protective orders do,
- how to get a domestic violence protective order,
- what to do first, and
- how victims of domestic violence can keep themselves, and their children, safe.
Let’s start by setting out the definitions we’ll use throughout this chapter.
What Does the Law Consider Domestic Violence?
To obtain legal protection through a domestic violence protective order (“DVPO”), you’ll need to show that an act of domestic violence occurred.
There are two parts to the legal definition of domestic violence in North Carolina. First, there’s the “domestic” part: there must be a “personal relationship” between the aggressor and the victim. Second, there must be at least one specific act of violence. Let’s look at each of those elements in turn.
Under North Carolina law, a personal relationship is one between:
- current or former spouses,
- two people of the opposite sex who live together or used to live together,
- parents and children or grandparents and grandchildren,
- two people who have a child or children together,
- current or former household members, or
- two people of the opposite sex who are currently or were formerly in a dating relationship.
If you have children with your abuser, you shouldn’t have any difficulty establishing that you have a personal relationship.
Turning to the second element, an act of domestic violence can be:
- intentionally causing or attempting to cause bodily injury;
- making the victim or a member of their family or household be in fear of imminent serious bodily injury;
- making the victim or a member of their family or household be in fear of continued harassment to a level which inflicts substantial emotional distress; or
- committing rape or other criminal sex offense.
To apply for protection under the law using a DVPO, you only need to show that one of those four possible acts of domestic violence occurred. And while it may have occurred many times, you only need to show that one act of violence happened one time.
Note that you don’t need physical proof of an injury—in fact, you don’t even need to have been injured—to apply for a DVPO. Most of the time, victims “show” that an act of violence occurred by explaining what happened, under oath, to a court.
But what if you did one of these things yourself in self-defense? Will you get in trouble if you accuse your ex of domestic violence when you fought back? Don’t worry: anything done in self-defense is specifically excluded from the legal definition of acts of domestic violence.
However you define it, please be aware that domestic violence doesn’t just affect its direct victims. Children, even if they’re not themselves abused, suffer tremendously from living in an environment of domestic violence. As we noted at the beginning of the chapter, almost half of children who are abused or who witness abuse eventually recreate those same dynamics in their own marriages and partnerships. Don’t let that happen to your kids.
What Can a Domestic Violence Protective Order Do for You?
Let’s be clear from the outset: a DVPO is a piece of paper. It gives you certain temporary rights, but it cannot keep you safe. Yes, you probably want to obtain one so you get the rights that you’re entitled to, but don’t put too much faith in the DVPO itself to protect you.
That said, it’s commonly known that a DVPO prohibits an aggressor from contacting their victim. But that’s not all DVPOs do. A DVPO can also offer other forms of relief, including:
- prohibiting the aggressor from showing up at the victim’s home, workplace, and/or school;
- prohibiting the aggressor from showing up at the victim’s children’s school and/or daycare;
- prohibiting the aggressor from contacting children in the care of the victim;
- prohibiting the aggressor from threatening the victim’s family or household members;
- prohibiting the aggressor from abusing the victim’s animals or pets;
- granting the victim possession of their animals or pets;
- granting the victim possession of their residence and evicting the aggressor;
- granting the victim possession of their car;
- requiring the aggressor to pay the victim temporary child support;
- prohibiting the aggressor from possessing or purchasing a gun;
- requiring the aggressor to surrender all firearms, ammunition, and gun permits; and
- requiring the aggressor to attend a treatment program.
This is not an exhaustive list. A judge may add additional remedies or order a combination of these options.
But wait a second: what about custody? You can get your dog, your residence, your car, and temporary child support, but can you use a DVPO to get custody of your children?
Yes, but only temporarily. If you successfully obtain a DVPO, you can ask for temporary custody of your children. This can be particularly helpful when you or your kids are in immediate danger.
However, you should not rely on a DVPO to obtain permanent custody or to initiate a new custody proceeding. A domestic violence action does not, by itself, establish a solid claim for permanent custody. This is true for child support and alimony claims as well; a DVPO can get you temporary relief, but you’ll still need to follow the standard procedures for permanent arrangements.
That’s why, if you need a DVPO and you also need to have the court determine child custody, child support, and/or alimony, you should file two separate complaints. One of those should be custom-tailored to the sorts of permanent arrangements you are asking for. The other specifically seeks the short-term solution of a DVPO. Let’s look at how that process works.
How Do You Obtain a Domestic Violence Protective Order?
Okay, you’ve determined that you will likely qualify for a DVPO, and you’ve decided that you need one. What do you do next to actually obtain the order? If you’ve never dealt with the court system before, or even if you have, filing motions and obtaining orders can seem like a daunting task.
Fortunately, North Carolina provides a pre-printed form, the Complaint and Motion for Domestic Violence Protective Order. This form tells the court what you’re complaining about (domestic violence) and what you’re asking or moving for (a DVPO). It is available on the North Carolina courts website as well as from the office of the Clerk of Superior Court for each county. You may also be able to get a copy from your lawyer or the police.
Once you have that pre-printed form, you can check the applicable boxes and fill in the specifics of your situation. Be specific and clear as you fill in the form. List all the facts that are directly related to the violent acts. You want the judge who will be reviewing your paperwork to clearly see the act or acts of domestic violence that have happened to you.
The form will also ask you to check particular boxes related to what you think the appropriate relief is. This is your chance to let the judge know what you need from the courts to feel safe. You may ask for temporary possession of the marital residence and/or temporary custody of the children. You may also ask that your spouse stay away from your work and/or your children’s daycare, that your spouse attend a treatment program, or something else that’s unique to your situation.
When you’ve filled out the form completely, you’ll need to file it at the courthouse. You may or may not be directed to a courtroom, and you may or may not speak to the judge.
The judge will then review your paperwork. If the judge believes you’ve met the qualifications, he or she will issue an Ex Parte Domestic Violence Order of Protection. An “ex parte order” is an order that the court enters when only one party has appeared and presented its side. Ex parte orders are used in emergency situations, like domestic violence, and are always temporary in nature.
If you are granted an Ex Parte Domestic Violence Order of Protection, you will automatically be given a court date to return. This court date will be within 10 days of the date the judge issued the ex parte order. The person you’ve accused of domestic violence—who is now called the defendant—must be properly served with the form you filled out and the court’s ex parte order. A sheriff’s deputy will serve the defendant at the address you provided. This gives that person actual notice of the ex parte order against them and tells them that they can no longer contact you in any way.
On your return court date, the court will hold a hearing on the issues you’ve raised in your complaint. The judge will need to hear from both parties. This is your chance to more fully and completely present your case, and it’s the defendant’s chance to present his or her side and be heard about the allegations. You’ll probably both be required to testify. Again, you will want to be as specific and clear as possible so the judge can understand what happened. Try to stay calm and factual, and don’t exaggerate.
If you have them, you can use medical reports, photographs, and other physical evidence to supplement your testimony. Similarly, if you have visible injuries, point them out to the judge. Try to keep your testimony, and your evidence, organized and clear. Focus on the important facts, and don’t waste time on trivial disagreements or arguments.
Overall, make sure that all of your evidence supports your claim of an act or acts of domestic violence against you.
If you’re successful in obtaining a “permanent” DVPO, be aware that it isn’t actually permanent. A DVPO only lasts for one year from the date it is granted. The first page of your DVPO will tell you the exact date that it expires.
What if you still need the protection of a DVPO a year later? You can request to have the DVPO renewed, but you must do so before the initial order expires. To start the renewal process, you must file a Motion to Renew. You’ll again be assigned a court date and again be asked to testify and explain your reasons for renewal. A judge will renew a DVPO for up to two additional years if you can show good cause for the extension.
What if you have a current, valid DVPO, and your ex violates it? First, call 911. Tell the police that you have a DVPO and describe how it’s being violated.
Keep in mind that a DVPO prohibits both direct and indirect contact. Direct contact may be a phone call, text message, or other communication sent directly to you. Indirect contact is when the aggressor uses someone else to call you or communicate with you on behalf of the aggressor.
In general, a knowing violation of a valid DVPO, even an initial ex parte DVPO, is a Class A1 misdemeanor crime. This is the most serious class of misdemeanors; it can be punished by up to 150 days in jail. More serious violations and repeated violations may be punishable as felonies.
What to Do First
If you’re a victim of domestic violence, you know you need to do something to protect yourself and your children. Most importantly, you need to have the courage to make those first steps. But what do you do first?
Depending on your situation, your first steps may be to talk with a lawyer, leave the house, file for a DVPO, or all of the above.
If at all possible—and if you can do so safely—try to meet with a lawyer before you leave to be sure that you’re protecting all of your rights.
When you decide that it’s time to leave, you need to get yourself to a safe place. You may decide to call law enforcement to help you. You can also call your local domestic violence center; these centers often have extensive resources and a dedicated staff of people who will be glad to help you.
You may find that you need to leave your house to reach a safe place. You’ll probably want to take the children with you to keep them safe as well. Just be mindful that leaving without a good legal reason can affect your future alimony and can make it difficult to return and retrieve property from within the house. In addition, be sure you’re not violating any existing court orders by taking the children with you if you need to leave the house.
Once you’re safe, whether that’s at home or elsewhere, then you can begin the process of filing for a DVPO. If you’ve met with a lawyer, your lawyer might help you file the complaint.
How to Keep Yourself, and Your Children, Safe
Numerous resources are available for victims of domestic violence, from shelters and local centers to websites and national organizations. Take advantage of their collected wisdom about strategies to stay safe. In cases of severe abuse, or if your children were also abused, you may not be able to share custody.
If you do have shared custody, though, consider these tips to keep yourself, and your kids, safe.
Create rules for communication. Establish ahead of time how you’ll communicate about custody or childcare issues and then stick to those rules. You may decide that you’ll only call each other or only exchange text messages. Clarify when you can communicate and what topics you should or shouldn’t discuss.
Create rules for custody schedules. Similarly, this isn’t the time to just assume that you’ll be able to work out an ongoing custody schedule. Instead, set clear rules about the day-to-day schedules that will apply during the school year, school vacations, and holidays.
Exchange custody at the children’s school or in a public place. You probably don’t want to invite your abuser into your home. Keeping custody exchanges visible and public is a good way to keep everyone on their best behavior.
Make sure your children have someone they can tell if they experience further abuse. Whether it’s you or another trusted adult, be sure that your children feel safe reporting any continued abuse. This may be abuse perpetrated against them or against another household member, such as a new girlfriend.
Don’t unload on the kids. You may need to seek therapy to understand how you have been affected by domestic violence—but your kids aren’t your therapist. Avoid dumping on them or telling them about your frustrations. You can be honest about why you’re no longer in a relationship, but be fair, factual, and brief.
Hopefully, you now have a better idea of the protections that the legal system affords to the victims of domestic violence. For more help, call the National Domestic Violence Hotline at 1-800-799-7233.
Let’s turn from an unfortunately common problem to a much rarer situation: international child custody issues, including cross-border abduction. That’s what we’ll take up in the next chapter.
