Violence or threats of violence may have been present in the relationship before filing for divorce or after separation. When an act of domestic violence has occurred, the court may grant a protective order that restrains a spouse from contacting the other, entering the household, and other prohibited acts.
If one spouse is being harmed by the other or there are threats of harm, that spouse can seek a protection order. If a spouse is served notice of a restraining order against them during a divorce, that spouse should consult an experienced family law and criminal defense attorney to understand how the restraining order can affect their rights in a divorce.
Obtaining a Protective Order During a Divorce
Domestic violence in North Carolina can involve both criminal and civil laws. If a spouse is a victim of domestic violence, they can seek a protective order (also called a restraining order). A Domestic Violence Protective Order (DVPO) is a court order that requires the alleged perpetrator to stay away from the victim experiencing violence.
A DVPO can be obtained after the plaintiff shows the defendant committed an act of domestic violence against the plaintiff or a child in the plaintiff's custody, including:
- Cause or attempt to cause physical injury;
- Place in fear of imminent serious bodily injury;
- Continued harassment involving at least two wrongful acts; or
- Sexual assault.
A DVPO can be filed against anyone with whom you had a qualifying relationship, including:
- Spouse or ex-spouse;
- Live or lived in the same household;
- Person with whom you have a child;
- Person in a dating relationship;
- Parent or grandparent; or
- Child or grandchild.
Individuals seeking a protection order can generally file for an order at their local courthouse. You can contact your North Carolina family law attorney for help in filing a protection order during a divorce.
Restrictions in a Protective Order
The restrictions involved in a protection order may depend on the individual situation. Generally, protective orders prohibit contact between the parties, going within a certain distance of the other, or showing up at certain locations. Prohibited contact can include contact by phone, email, text, or social media posts. A protection order may include any of the following:
- Direct a party to refrain from acts of violence, threats, abuse, or harassment.
- Grant to a party possession of the residence or household and exclude the other party.
- Require a party to provide a spouse and his or her children suitable alternate housing.
- Award temporary custody of minor children and establish temporary visitation rights.
- Order eviction from a residence or household and assistance to the victim in returning to it.
- Order either party to make payments for the support of a minor child.
- Order either party to make payments for the support of a spouse.
- Provide for possession of personal property of the parties, including the care, custody, and control of a pet.
- Award attorney's fees to either party.
- Prohibit a party from purchasing a firearm for a time fixed in the order.
- Attend and complete an abuser treatment program.
- Any additional prohibitions or requirements the court deems necessary to protect any party or any minor child.
Protective Order and Child Custody or Visitation
A restraining order or protection order can change your parenting visitation schedule and child custody options. A protection order could prohibit contact with your child or provide for supervised visitation. Even if a protection order does not prohibit contact with the child, if the order prohibits direct contact with the other parent, the parents may have to communicate through an attorney or another third party. Talk to your North Carolina child custody attorney about how a protective order could impact your parenting rights.
Penalties for Violating a Protective Order in North Carolina
If the subject of the protection order violates the order, the court can hold the defendant in contempt. Violating a protection order in North Carolina can lead to criminal charges. Knowingly violating a protection order is a Class A1 misdemeanor. Violating a protection order after two prior violations can be a Class H felony.
If the individual was committing a felony at the time of violating a protection order (such as burglary or aggravated assault), the penalties for the felony can be increased in light of the protective order violation.
Divorce Attorneys in Shelby, North Carolina
If you have any questions about a restraining order during your divorce in North Carolina, contact the experienced divorce attorneys at Caulder & Valentine Law Firm, PLLC. Contact us online or by phone 704-470-2440 today for a consultation.