Where: The fifth floor of the Wake County Courthouse at 316 Fayetteville St. in Raleigh, NC. Hearings are held in Courtroom 5A. (Note: during the COVID-19 pandemic, many of these hearings are being held via WebEx.)
When: Court begins at 9 a.m. If you are late, your case might be dismissed (if you’re the plaintiff) or an order might be entered against you without the opportunity to be heard (if you’re the defendant.)
What is a DVPO: A DVPO stands for “Domestic Violence Protective Order.” It is often referred to as a “50B” because the laws regarding DVPOs are listed under NCGS 50B. Many think of them as restraining orders.
What Does a DVPO Do? Let’s say Jane files a petition against John claiming he committed an act of domestic violence against her. If the order is entered, it will be in effect for one year. It will likely forbid John from coming within 100 yards of Jane; it will forbid John from contacting Jane in any manner; it might award a shared residence to Jane; and it will remove all firearms from John and forbid him from possessing a firearm for the next year.
What is an Ex-Parte? When a plaintiff initially files a DVPO complaint, they will appear in front of a judge to testify as to why an order should be entered. If the judge agrees an order should be entered, the judge will issue a 10-day ex-parte order. The defendant should be served by the Sheriff within those 10 days with a date and time to appear in court. The defendant will also receive a copy of the complaint that sets out the allegations. If the defendant is not served within the 10 days, the hearing will be continued to a new date and time.
Can I Violate a DVPO if I Haven’t Been Served? If you have no notice or knowledge that there is a DVPO against you, you technically can not be arrested for violating it.
Can I File a DVPO Against the Plaintiff? Yes, although your attorney might advise you not to because it can often hurt your case. Speak to an attorney before you do this if possible.
What Happens if a DVPO is Violated? If the defendant willfully violates the Order, they will be arrested and criminally charged.
What if a DVPO is Entered and the Plaintiff Contacts Me? You cannot respond; you will be arrested. A plaintiff cannot give you permission to violate the DVPO — a court must first set aside the DVPO.
Can a DVPO be Renewed? Yes, a DVPO can be renewed for good cause for up to two years at a time. The petitioner must file for renewal before the DVPO expires.
What is Good Cause? Good cause is a very low burden the petitioner/plaintiff must prove for renewal. An act of domestic violence is not necessary within the last year for a renewal.
Are Most DVPOs Renewed? Many petitioners/plaintiffs do not file for a renewal before the one year order expires. However, if the petitioner does file for a renewal, many times the renewals are entered.
Can I Fight a DVPO? Yes, absolutely. You can have a hearing in front of a judge where you are able to present your account of what occurred as well as call any witnesses and attempt to enter evidence. The plaintiff has a chance to do the same.
Should I Fight a DVPO? Maybe. Sometimes it’s better not to fight and just enter into a Consent Order. Talk to your attorney about the pros and cons.
What is a Hearing Like? The plaintiff (the person who filed for the order) goes first. They will testify and have a chance to call witnesses and present evidence. You (or your attorney) will be able to cross-examine each witness. At the close of their evidence, you will have the chance to testify, call witnesses and present evidence. The plaintiff (or their attorney) will cross-examine you and the witnesses. Both sides will then present closing arguments.
Do the Rule of Evidence Apply? Yes, the North Carolina Rules of Evidence apply. This means (most) hearsay will not be admissible, speculation is generally not permitted, and so on. The Rules of Evidence can make or break a case.
What is a Consent Order? A Consent Order is a DVPO where both sides agree to enter an order. There are no findings of fact or conclusions of law necessary, which means the details of what allegedly happened are not enumerated in the court file. A Consent Order has the same restrictions, meaning the defendant will be forbidden from contacting the plaintiff and the order will be good for one year.
Can I Consent to a Renewal? No. There must be findings of fact to support the good cause.
What if the Plaintiff Has My Stuff? You may be given the chance when served to arrange a time with a Wake County Sheriff Deputy to enter the residence of the plaintiff to gather your clothing, hygiene items, and tools of the trade. This does not mean you can grab furniture, televisions, etc. — only necessary items. You will also likely be given this chance if a DVPO is entered against you if you hadn’t had the chance already.
What if We Have Kids Together? If you do not have a family court judge assigned to you in Wake, the hearing will be held in 5A and the judge presiding can order custody arrangements until you are able to reach something more permanent in family court. If you do have a family court judge assigned, your case will likely be heard in front of that judge. You may be best served hiring a family law attorney to handle your DVPO if your case is in front of your family court judge.
Can I Appeal a DVPO? Yes, if you go to hearing and lose, you can appeal to the Court of Appeals. Speak to an appellate attorney about this.
What If There is a Criminal Case Attached? Proceed with caution. Anything said in 5A can be used against you in criminal court. Your attorney will advise you whether it’s best to continue the DVPO case or enter into a Consent Order.
What is a Show Cause? A show cause, in the DVPO context, is a motion by one of the parties to show why you shouldn’t be held in contempt of the order. This could carry a court fine or jail time if you are found to have violated the order.
Can I Be Charged With a DVPO Violation and Subpoenaed For a Show Cause? Technically, you shouldn’t be because of double jeopardy concerns if the conduct alleged in the criminal case and the show cause are the same.
Do I Need a Lawyer? Yes, probably. A DVPO can have strong consequences, such as going to jail if a violation accusation is made; loss of firearms for a year; and loss of custody.
What If I Forget the Court Date? If you forget to attend the date you are subpoenaed for, the DVPO might be entered against you without you having the chance to be heard. If you are the plaintiff and fail to appear, the DVPO will likely be dismissed.
How Much Does it Cost to File a DVPO? There is no cost.
What If I Want to Drop the DVPO? You can file a Motion to Set Aside. You will be given a court date where the judge will question you on why you want to drop the DVPO. Both the plaintiff and defendant can file this, although the chances of a defendant winning this motion is slim to impossible if opposed.
Can I Get a Court-Appointed Attorney? No. You can only ask for a court-appointed attorney if you have been subpoenaed for a Show Cause because a Show Cause contempt finding can carry jail time.
Will There Be a Jury? No. DVPOs are heard in front of a judge.
How Can I Help My Attorney Fight My DVPO? Make sure to screenshot any interactions with the plaintiff and send it to your attorney, especially if the plaintiff has tried to contact you after the ex-parte was entered.
If you have been served with a domestic violence protective order in Wake County, contact William Pruden at 919-880-2124 for more information.