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Family Law / Domestic Violence and Restraining Orders
Restraining Orders


Protective Orders

Domestic Violence and Restraining Orders

If you, or someone you know, have been the victim of domestic abuse, harassment, or other forms of stalking, you have the right to seek one of several protective or “restraining” orders. A protective order, commonlyknown as a restraining order, would normally consist of a Domestic Violence Protective Order (DVPO) or a Civil No-Contact Order, to prevent further harassment or abuse.

While the two documents provide protection, they differ in the protections the order provides as well as how the order is enforced. Most significantly, a DVPO typically applies to current or former spouses or close relationships, (for example, dating relationships, parent-child relationships, etc.) and can be enforced by calling the police. A Civil No-Contact Order (“Restraining Order”) is requested by people who don’t have such a close relationship such as neighbor conflicts or harassing coworkers and you must file a Motion to Show Cause.

Understanding what’s in a protective order (if one is filed against you) and what goes into a protective order (if you are the victim) is crucial to your case. Consulting with an experienced attorney to help you, whether you are a Plaintiff or Defendant, should be your first step when filing or being served with a protective order. Whether you intend to file for a protective order or if you were served documents and require representation as the Defendant, we invite you to give us a call for a free consultation so we can thoroughly explain your options.


Understanding the Process

Understanding the Process in 3 Steps

Something that we see in court when people are representing themselves (otherwise known as pro se litigants) is that people don’t really know what to do from start to finish. Most of the time, this is the first time in court for the Plaintiff and Defendant, so how can you really prepare?

Since our firm primarily practices in Wake County, NC, we will go through the process for Wake County.

3 Steps

If you are filing a complaint, it is imperative to provide your attorney with all of the details of all events you are alleging.

This means that after the victim/Plaintiff files for a protective order they will go before a judge (likely that same day without the accused/Defendant present) to try to get emergency relief.

You have what’s called the permanent or 10-day hearing (a hearing that takes place 10 days after the granting/denial of a restraining order). Although there is a chance of a continuance at this hearing (due to the calendar being full, either side having just recently hired an attorney, etc.), you and your attorney always want to come prepared as if you will be heard that day. There is a chance that the permanent hearing may get continued. Typically, if a continuance is granted, the emergency order stays in place until the next hearing unless the case is continued for longer than 10 days. When the case is finally heard, the Judge will hear all the evidence from both parties and determine whether enough evidence was presented to have a 12-month protective order put in place or not.

The standard of proof applied in these cases ‘is by a greater weight of the evidence.’ This standard is one of the lowest standards of proof in the legal system. This means that, in the hearing, the plaintiff has to prove that there was at least a 50% chance the act or event(s) happened. The Defendant will also put on evidence attempting to show the likelihood of the accused actions actually did not happen. It's important to have an experienced attorney review your case to weigh all of your options as well as the strength of your case as soon as possible and prior to your court date.

While the steps above were based on Wake County, if you live in other surrounding counties such as Durham, Nash, or Johnston we may be able to consult with you as well.However, the process should not be very different from county to county.

It is strongly recommended that you hire an attorney because protective orders are very sensitive and emotionally charged situations whether you are the victim or the accused. Most of the time, you are doing all that you can to keep your composure, much less deal with needing to know all of the rules of civil procedure or know the rules of evidence. This trial can either result in an order for your protection when you are in fear for your life or a seeking a dismissal for claims that have been falsely brought against you.



What to expect as a victim

What To Expect As A Victim

If you are a victim of Domestic Violence, Stalking, Sexual Assault, or other forms of harassment, we want you to know that we are truly sorry that you are in this situation, and we are prepared to fight for you. Experiencing any form of domestic violence or harassment already takes everything out of you emotionally, let alone attempting to navigate this process on your own. Please call our office if you need a consultation about representation as we have a very understanding staff who are ready to help take your call.

Since our firm primarily practices in Wake County, NC, we will go through the process for Wake County.

The first step is filing. If you are filing a complaint, it is imperative to provide your attorney with all of the details of all events you are alleging. *In Wake County, there is a time constraint, and each side will only have 30 minutes to present everything. Providing your attorney with details of all of the events in chronological order will help you be more efficient with the limited time we are given.

Helpful tips for you as the victim - Please read the section called “Understanding the Process” so you can apply the following tips to each relevant stage of obtaining a DVPO.

  1. Seek an attorney as soon as possible. The longer you wait, the less time your attorney has to prepare and pursue your claim. Continuances aren’t always guaranteed, especially if you choose to retain an attorney after your case has already been continued once.
  2. If you can hire an attorney before you file, even if it’s to read through your complaint, then your attorney can make sure all the relevant facts, circumstances, and your timeline are included and correct.
  3. Unless you hire an attorney prior to or at the time of filing, you will likely go before the Judge for the ex parte hearing on your own.
  4. If you have children that have been exposed to the domestic violence alleged in the Complaint, it is important to speak with your attorney about a potential custody arrangement assuming the DVPO is granted.


What To Expect If Accused

What To Expect If Accused

If you are being accused of domestic violence, stalking, harassment, or sexual assault, it is important to consult with an attorney immediately after you have been served. The longer you wait to consult with and hire an attorney, the less time your attorney will have to prepare your defense. *This is especially important if you were arrested and charged with Assault on a Female or other criminal charges related to the incident(s) alleged in the protective order! Please note that anything said in the civil courtroom can be used against you in the criminal courtroom. If you communicate with the person who brought the restraining order and the protective order is granted, you could be changed with a misdemeanor violation of a Domestic Violence Protective Order. If a Civil No-Contact Order is granted and you continue to or attempt to speak with the moving party (the Plaintiff), even through a third party, then you could be held in contempt.

There are other potential risks involved, but fortunately, our office is qualified to not only handle the civil claim that has been brought against you, but we can also handle the potential criminal charges that were brought against you as well.

Helpful tips for you as the accused - Please read the section called “Understanding the Process” so you can apply the following tips to each relevant stage of defending against a DVPO.

  1. Communication: WHEN YOU ARE SERVED DO NOT SAY ANYTHING TO THE PLAINTIFF! This means that if you live in the same residence as the Plaintiff, that you leave quietly and do not confront the person who filed against you. Call us for more information about ways to avoid communication with the Plaintiff since this may be beneficial for your case.
  2. Contact an attorney to begin immediate preparations for a hearing.
  3. Keep in contact with your attorney and regularly discuss your options with them as new things unfold.
  4. You will most likely lose your guns and need to surrender them to the sheriff if the ex parte or the permanent order is entered. They are not automatically returned to you. There is a small time frame that your guns can be returned to you, so speak with your lawyer about your immediate options as soon as possible so you do not lose your guns forever.
  5. There are other considerations to discuss with your attorney because the Plaintiff may request that you attend an anger management course, temporary custody, possession of the house, or even vehicles. If these are areas of concern, speak with your attorney about what each of these mean and what your options are at the outset of the hearing.


Domestic Violence Children

Domestic Violence Children

When considering whether you should file for a protective order or seek defense from a protective order, it’s important to consider whether you both have children. The type of attorney you would want to represent you is one that has a family law background so they can fully advise you on any adverse impacts this may have regarding your potential child custody case.

If a protective order is granted, then a temporary child custody protective order supersedes your current child custody schedule if you already had a child custody order in place. If this is the first time you’ve been to court regarding issues of child custody, then a temporary order can be entered that may be more restrictive than you would normally get from a Chapter 50 child custody case, depending on the facts and circumstances.

Another issue that needs to be discussed is how the alleged domestic violence will help or hurt your case for child custody even if custody hasn’t formally been filed yet or if you are seeking to modify custody. Domestic violence is specific here because instances of domestic violence are a factor the courts can consider in family court.



Domestic Violence Protective Order v. Restraining Orders

Domestic Violence Protective Order vs Restraining Orders

To obtain a domestic violence protective order (DVPO), you need to prove that there was an existing or previously existing close relationship such as a romantic relationship, marriage, familial connection, or roommates. A restraining order, on the other hand, can be used against a stranger or coworker that has been harassing you. A DVPO has more restrictions than a restraining order (calling the police for immediate enforcement vs. filing a motion to show cause). Despite that, a restraining order can still be very helpful in keeping an individual away that has been harassing you.

It would be to your benefit to contact a lawyer to try to get one of these protective orders if you believe you need one. Likewise, if you have been accused, you will want a strong defense against the imposition of one of these orders, do not delay in contacting a lawyer to assist you.