Can I Get a Protective Order Without My Spouse in Court?
In NC, there are two types of domestic violence protective orders:
Ex parte/Temporary protective orders
Final domestic violence protective orders, often called a 50B order or a restraining order
Ex parte simply means that one party appears before the judge and the other party is not present. An ex parte order is temporary and a full hearing must take place to determine the final relief.
If you are a victim of domestic violence you can file a civil action or a motion if there is already a current case pending and request a protective order. Prior to the hearing, if the court finds that there is a danger of domestic violence to the aggrieved party or to a minor child the judge can issue an order to protect the party or child. This can include a temporary order for custody ex parte prior to the service of process on the other party. However, the judge can only issue a temporary custody order if he/she finds that the child is exposed to a substantial risk of physical or emotional injury or sexual abuse. If the judge finds that the child is at risk of the above, the judge can order the child returned to the parent requesting relief, forbid the other parent from visiting with the child, or order the child not be taken from the parent requesting relief if it is in the best interest of the child. The judge can also order supervised visitation. If a judge issues an ex parte order, a hearing will be held within 10 days from the date of issuance of the order or within seven days from the date of service of process on the other party, whichever occurs later.
Under § 50B‑3 the court including a magistrate can order the following relief:
(a) If the court, including magistrates as authorized under G.S. 50B‑2(c1), finds that an act of domestic violence has occurred, the court shall grant a protective order restraining the defendant from further acts of domestic violence. A protective order may include any of the following types of relief:
(1) Direct a party to refrain from such acts.
(2) Grant to a party possession of the residence or household of the parties and exclude the other party from the residence or household.
(3) Require a party to provide a spouse and his or her children suitable alternate housing.
(4) Award temporary custody of minor children and establish temporary visitation rights pursuant to G.S. 50B‑2 if the order is granted ex parte, and pursuant to subsection (a1) of this section if the order is granted after notice or service of process.
(5) Order the eviction of a party from the residence or household and assistance to the victim in returning to it.
(6) Order either party to make payments for the support of a minor child as required by law.
(7) Order either party to make payments for the support of a spouse as required by law.
(8) Provide for possession of personal property of the parties, including the care, custody, and control of any animal owned, possessed, kept, or held as a pet by either party or minor child residing in the household.
(9) Order a party to refrain from doing any or all of the following:
a. Threatening, abusing, or following the other party.
b. Harassing the other party, including by telephone, visiting the home or workplace, or other means.
b1. Cruelly treating or abusing an animal owned, possessed, kept, or held as a pet by either party or minor child residing in the household.
c. Otherwise interfering with the other party.
(10) Award attorney’s fees to either party.
(11) Prohibit a party from purchasing a firearm for a time fixed in the order.
(12) Order any party the court finds is responsible for acts of domestic violence to attend and complete an abuser treatment program if the program is approved by the Domestic Violence Commission.
(13) Include any additional prohibitions or requirements the court deems necessary to protect any party or any minor child.