Subscribe
Share
Share
Embed
In this episode, Sarah J. Hink and Ava K. Jennette from New Direction Family Law discuss the procedural steps involved in obtaining a domestic violence protective order (DVPO) in North Carolina. They offer advice on resources such as local domestic violence resource centers and highlight the essential details needed in the complaint form, including specific allegations and dates. The discussion includes what to expect during the ex parte hearing, service of the abuser, and the return hearing. They also cover the potential consequences of violating a DVPO, the importance of including all relevant incidents in the complaint, and the role of Legal Aid in assisting victims. The episode provides comprehensive guidance for those looking to pursue or defend against a DVPO, emphasizing the importance of legal representation.
00:00 Introduction to the Episode
00:30 Understanding Domestic Violence Protective Orders
01:39 Filing for a Protective Order
02:25 Details and Allegations in the Complaint
06:30 The Ex Parte Order Process
08:47 Preparing for the Return Hearing
09:57 Defending Against False Allegations
13:17 Consequences of Violating a Protective Order
17:56 Renewing a Protective Order
19:56 Final Advice and Resources
Learn more about New Direction Family Law: https://newdirectionfamilylaw.com/contact-us-today/
Creators and Guests
Host
Ava K. Jennette
Associate Attorney Focus Areas: Family Law, Child Custody, Child Support, Post Separation Support, Alimony, Property Division, Domestic Violence Protective Orders, Family Law Litigation, Separation Agreements, Prenuptial Agreements, and more. Experience: Over 2 years Practice Areas: Wake, Durham, Johnston, and Harnett counties
What is Ex-it Strategy?
Your no bullsh$t guide to divorce with experienced attorneys from New Direction Family Law and guests and professionals who have been there. Unfiltered discussions to help you move from victim to victorious and from bitter to better.
[00:00:00]
Sarah J. Hink: I'm Sarah Hink from the Attorneys at New Direction Family Law.
I have with me again on this episode. Ava Jeanette, another attorney and new direction family law. Welcome Ava.
Ava K. Jennette: Thank you.
Sarah J. Hink: Elizabeth is still in her trial. . As of 20 minutes ago, we recorded the last episode, , but we are here to talk to you today about the topic we have discussed in the past, domestic violence.
Um, but today we're gonna go more about the procedural side of it and obtaining a domestic violence protective order. Um, obviously there's a lot of issues that surround domestic violence since we have those past episodes. I think it's good for people to listen to them if they're in the scenario because it deals with, you know, all aspects of domestic violence, the cycle abuse [00:01:00] resources out there.
But today we're gonna try and stay within the procedural side just to give people some knowledge if this is something they wanna pursue on their own, if they don't have the funds to hire an attorney, um, and what they can do out there. In any other counties in North Carolina if we don't practice there.
So tell us a little bit about, uh, your experience with domestic violence, protective orders.
Ava K. Jennette: Yeah, so, um, I have been practicing for about two years and I've done quite a few of these. I've both, you know, been on the side where we're asking for one and defended against a few of them as well. Um, and they're always, you know, difficult cases I think on both sides.
Sarah J. Hink: Mm-hmm
, let's start with, if you're pursuing a domestic violence protective order, um, you know, where do people start? Where, where can we give people some resources to start in moving forward with that?
Ava K. Jennette: Yeah, so I would say if you're, um. In Wake Orly, Johnston County, um, or other North Carolina counties, I would reach out [00:02:00] to um, your local domestic violence resource center in Wake.
It's interact in Johnston County, it's Harbor. I believe Harnett has one as well and I'm sure most counties have some sort of resource, so I would reach out to them first 'cause they can give you information on filling out the paperwork. Um, and they can also give you a lot of resources for like. How to leave safely and counseling, like all sorts of stuff.
So I would definitely reach out to them first.
Sarah J. Hink: Yeah. A lot of those resources out there do have, um, advocates to assist with completing the complaint for domestic violence protective order. The complaint is generally an a OC form, as we call it. It's just a standardized form that is available from the state for people to fill out, and it'll ask basic questions for you to, you know, answer, you know, allegations that you need to include.
One of 'em is your relationship to the defendant, you know, husband, wife, roommates, um, you know, yeah. Share a, a child in common. There's also, you know, mother, father is an option as well. Mm-hmm . Uh, [00:03:00] and you can file on behalf of a minor child as well. Have you had those cases?
Ava K. Jennette: I have. Um, I'm trying to think. I don't think I have.
Had where I was representing a victim, but I did defend against one where we had a minor child as the person seeking the DVPO.
Sarah J. Hink: So procedurally, when you represent a child in a domestic violence protect protective order, there are some issues that can complicate that. So if you're listening and that is falling into your area, definitely speak to an attorney about how to do that, whether or not you need to have, be appointed as a guardian ad litem for the child when you file.
Um, but otherwise, like we said before, it's a form you put the allegations. And what are some certain allegations out there that would fall under domestic violence?
Ava K. Jennette: Yeah, so first of all too, I would be as specific as possible, um, you know, listing dates to the best of your recollection, that sort of thing.
But any list, anything that, um, has, you know, obviously physical violence or threats of physical violence are sort of the most [00:04:00] important thing to put there. Um, but also any. Harassing behavior that has been like really emotionally distressing to you. Mm-hmm . Things like calling you 30 times. I've seen that one pop up before.
Um, things like posting, um, had a case where the other party posted, um, sensitive photos to like the victim's social media, horrible stuff like that. So, yeah. You know, any harassing behavior in addition to any violence is important to put on there.
Sarah J. Hink: Yeah. And like you said, dates be specific. Any, and you can go back in the past.
Yes. You know, the courts definitely wanna hear the most recent act of domestic violence. Um, but you wanna list any dates or anything that's happened in the past as well. And if you don't recall the exact date for some reason, you can always just say August of 2025. We aren't there yet. . So we go back in time, August of 2023 this happened and kind of show this behavior is a pattern because that's obviously a big indication that there is abuse in the relationship.
[00:05:00] If it is an ongoing pattern of harassment, the multiple texts or multiple calls like you stated before. Mm-hmm . Um, throwing things in the house, you know, just slamming their hand on tables, like in these acts of aggression. Mm-hmm . Can be seen as as domestic violence under the statute and also how you perceive them if you're in fear of this person.
Yes.
Ava K. Jennette: Um,
Sarah J. Hink: and the emotional distress they're causing you. So you wanna make sure you fill all that information out on the complaint. And what sort of relief can you ask for on that complaint?
Ava K. Jennette: Yeah, so you can ask for a lot of different stuff. Um, kind of the main thing that comes up a lot is you can get custody of a minor child in these, um, it only lasts for a year, but that is something the court can provide in certain circumstances.
You can get things like, um, custody of a pet. Um, if y'all own a pet together, um, you can have possession of the house that y'all live in in certain circumstances. Um, they, the court can order your abuser to not come [00:06:00] to your place of work, your child's school daycare. Um. Your relative's, homes, all those sorts of things.
Sarah J. Hink: Yeah. And so the possession of the house, that doesn't mean that you get the house Yes. And the equity and all the money if the house is owned, right? Right. Correct. Just means you get to stay there. Mm-hmm . Yeah. Until there's further order of the court. Yes. So say we fill out our complaint, we make all these allegations and we're gonna talk like we're in Wake County 'cause that's where we practice the most.
Mm-hmm . Uh, you know, what's the process for that? You take it down to the courthouse, you file it, then what happens?
Ava K. Jennette: Yeah, so typically what happens is once you file it, the clerks are gonna send you over to a courtroom. And at that point you'll actually go in front of the judge and ask them for something called an ex parte, um, domestic violence protective order.
And that's essentially just like a temporary protective order, but it will give you some protection assuming you get it for roughly 10 days until you come back for the return hearing. Um, so I would be prepared when you go to file, um, [00:07:00] to be ready to talk to a judge and kind of . Explain why you're wanting this.
Um, any evidence that you could have could be useful there too.
Sarah J. Hink: Right? And so the defendant or the abuser is not in the courtroom during this process. It's just the person that's filed the complaint and they, that same day go in front of a judge, judge reads the complaint, ask questions, listens to the person filing the complaint, and based on what they say, they will enter or deny an ex parte order.
Ava K. Jennette: Right?
Sarah J. Hink: So we get our ex parte order, then what happens?
Ava K. Jennette: Yeah. So like I said, about 10 days later, it could be shorter, but, um, you'll come back for a return hearing assuming that your abuser has been served. So, um, this is one thing I like to prepare people for, um, 'cause it could influence what you need to do for the rest of the day, but, um, typically the sheriff's office will try to serve them fairly quickly.
So I would be prepared to like be away from the home where they're [00:08:00] gonna be served or mm-hmm . Um, just sort of be aware that that could happen within, I'd say like they're fairly fast. Maybe 24 hours isn't uncommon. Um, yeah, typically.
Sarah J. Hink: Yeah. Well of course the last one that I filed took like three days. Of course
Yeah. But, um, it should be pretty quick and, you know, have the kids outta the house. Yeah. The sheriff's gonna come. Uh, you don't wanna be around them if you don't need to be. Right.
Ava K. Jennette: Or
Sarah J. Hink: if the kids are with them, like perhaps you've already separated and it's his custodial time. Mm-hmm . Or her custodial time, you know, make sure that you are available to take the kids.
Right. Absolutely. In that situation. So we get service and then the court date, we'll know the court date when we get the ex parte order mm-hmm . And then the defendant will know the court date 'cause he'll be on the paperwork served. Correct. Right.
Ava K. Jennette: Correct. So when you show back up for that hearing, I would expect the other side to be there.
Um, I would go in, you know, have as much evidence as you can, have photos of things if possible. [00:09:00] Any, like if you have like ring video camera, something like that is helpful. Um, text messages, all of that is great and I would have it printed out if possible. Um, this, you know, helps you stay organized when you're talking to the judge and like lets them see what you're talking about.
Um, so yeah, you will actually have a hearing, you'll talk to the judge. Um, the other side will get an opportunity to question you and you'll get an opportunity to question them if they testify and the judge makes their decision,
Sarah J. Hink: right? And so obviously this is the biggest part and some people will file on their own and then hire an attorney in that timeframe to represent them on the return hearing, as we call it that 10 day return hearing, because that's when you do want your evidence to be tight.
You want everything to be correct and available to the judge. Make sure that you are. Putting in evidence and testimony that is going to fall under the domestic violence statute Right. For you to get that order.
Ava K. Jennette: Yes.
Sarah J. Hink: And as for the defendant, say that you are [00:10:00] served with a ex parte domestic violence protective order and we've called them their abuser, but sometimes we understand that domestic violence, protective orders can be used as a, a double-edged sword.
Right. So, yeah. Uh, you mentioned before that you can get custody through it, so sometimes people might file a domestic protective order to obtain custody and maybe there wasn't actually domestic violence and it can be used to get possession of the house and kick out your spouse if they're refusing to leave when there wasn't actually a domestic violence.
Yeah. So walk us through what that would look like.
Ava K. Jennette: Yeah. So , my first piece of advice would be to talk to an attorney, um, if possible. 'cause these can have long lasting ramifications. Mm-hmm . Um, you know, not. I mean, I guess to scare people kind of, but it is a potential that if the other side gets one of these, you could not see your kids for several months.
Like, it's important to get legal advice if you can. Um, if you're not able to do that, I would say, you know, read through the other side's [00:11:00] complaint as rationally as possible. Um, if what they're saying isn't true, try to bring evidence or witnesses, you have to show that it's not true. Sometimes that's really hard.
Just bringing anything you can to try to Yeah. Kind of negate their allegations. It's helpful. Yeah.
[00:12:00]
Sarah J. Hink: And if you're served at home and they have the ex parte, you're gonna have to leave your house. Yeah. The, the cops will stay there with you and they'll wait for you to go pack your bags and you gotta get outta there.
Yep. And. You cannot communicate with a person that filed that domestic violence protective order and got an ex parte, can you? No. And definitely
Ava K. Jennette: do not under any circumstances communicate with them.
Sarah J. Hink: Yeah. Not through third parties. No, not via social media. Do not, [00:13:00] even if you don't think the allegations are true, it doesn't matter.
Right? So say that someone does do that, they start texting their ex and, Hey, why'd you file that? What are you doing? You know, I didn't do any of these things, blah, blah, blah, blah, blah. Text, text, text. What could happen?
Ava K. Jennette: Yeah. So you could get arrested in face criminal charges for that. Um, a violation of a protective order is, is criminal.
And you could get some jail time for that potentially. So. Do not do that. Also, even if you know your ex who filed this, even if she texts you and is like, or he texts you and he is like, I'm sorry, like I'm gonna drop it. Don't respond. Like they can't give you permission to waive that, so,
Sarah J. Hink: right. Go radio, silence.
Radio silent for sure. And they don't get in trouble. Right. Some people think that the person that files for the protective order can't communicate with you either, but that's not the case. Mm-hmm . They can, there's no ramifications for them if they talk to you while the, the protective order is in place.
Right. But you can also [00:14:00] use that as a defense, right? Like, this person's not scared of me. Mm-hmm . Look, she started texting me even after she filed, right. Asking these questions or wanting to see me. So that can also be used as evidence. Mm-hmm . For what happens after the ex parte is entered. Yes. Yes. And something important for people to know is that the actual domestic violence protective order, you know, complaint orders that stem from it are civil orders.
So it's not Right. People get concerned about their employment, which they should be. Mm-hmm . But it's not something that's gonna show up on a criminal background check. Right. But what will show up on the criminal background check is if you violate it and then you get a criminal charge for violating the protective order.
Ava K. Jennette: Yes, for sure. And
Sarah J. Hink: you can even spend time in jail.
Ava K. Jennette: Mm-hmm .
Sarah J. Hink: Especially if you do it more than once. Yes. It's just like a lot of other crimes where it builds up and turns and misdemeanors turn into felony and just depending on what you're doing. And so that can be very problematic for people's future and for their jobs.
Absolutely.
Ava K. Jennette: And I can't stress enough too, like I really would err on the side of caution because, you know, [00:15:00] we've seen violations for things like logging into somebody's . Shared account. Mm-hmm . Um, has done it. Magistrates, who are the people that are typically making, you know, finding the criminal acts?
Mm-hmm . Aren't, you know, necessarily super well versed in that area. And so you can get violated really easily. So just like try very hard not
Sarah J. Hink: to do anything. Yes. Nothing at all. And don't try to be sneaky. Mm-hmm . Doing it stuff. I feel like people these days just like try to log into ring cameras. Are you still looking at the ring camera at the house and doing those sorts of things?
Mm-hmm . Don't do that. Yeah. Don't
Ava K. Jennette: send them money. Even like, that can be a communication. Um, right.
Sarah J. Hink: Yeah. On the, you know, I've had those cases and I argue, okay, well it's for a legitimate purpose. Like there's a child support order, he needs to pay child support. Right. So there are defenses to that as well, but it can, like you said, end up in the hands of the wrong person to make that decision on the front end.
And you don't want, you just wanna avoid it [00:16:00] at all costs. So that's why if you can't afford an attorney and you're a defendant, hire an attorney. Yes, for sure. Yeah. And also if this one, those cases where someone's filed it as leverage in a family law case for custody or to obtain property, you know, we can show that in court.
Right. And the judges look for that. They know. Absolutely. And so that can look bad on that other person for doing that. So just, you know, stand your ground and get an attorney. Yep. Play it safe. Don't make those communications to the other party. Be very careful about what you do. Uh, so at the return hearing, everyone gets their chance to provide testimony, evidence.
Mm-hmm . What happens when the judge enters that order? What can we expect?
Ava K. Jennette: So, I mean, if a judge enters an order granting you a domestic violence protective order, um, you can expect some of the same things that I talked about earlier. Um, you know, custody, possession of a house, possession of pets, things like that.
That being said though, you know, even if just, and I know this kind of goes a [00:17:00] little bit off topic with custody, but like, if you do get a custody order in there, know that it can be modified through a family court action. So, you know, if you're the defendant, it doesn't necessarily mean that you're not gonna see your kid for a year.
And if you're the person filing A-D-V-P-O, it also doesn't mean that like you're . You, your custody schedule is protected for a year.
Sarah J. Hink: Right. There's consent orders mm-hmm . That someone can, the defendant can say, okay, fine, I'll, I'll consent to a protective order and there won't be findings of fact.
So it won't say that he or she, you know, abuse the other person. So you're avoiding a hearing, but you're consenting to the protective order. And in that case, a lot of times we do work out some kind of temporary custody schedule. Yeah. But like you said, you can still file in family court for custody in whatever order that the family court puts in place will override that DVPO custody order because it only lasts for a year, cannot be renewed.
Right. Can the protective order itself be renewed though?
Ava K. Jennette: It can, [00:18:00] it can be renewed for an unlimited amount of times, technically, um, for up to two years on each renewal. That is a possibility.
Sarah J. Hink: And what do you have to do for the renewal part of it?
Ava K. Jennette: You have to file a motion to renew before the original one expires.
That's super important. Very important. Yeah. Um, and then essentially, you know, you're trying to show the court it, you don't necessarily have to have this, but it's helpful if the other side has violated the order. Um, if they have done things like, you know, technically it's not a violation, but they're like toeing the line.
Yeah. That can be helpful. We had like an instance of this with somebody they like approached the person too closely in the courthouse, during like a custody hearing. And, and that was part of like our basis mm-hmm . Um, but, and you also have to show that you're still in reasonable fear of them,
Sarah J. Hink: You don't have to show acts, right? You don't have to in that time period, [00:19:00] if things were so bad before and you're just still in fear then Right. The court can renew it. Yep. And like you said, they can renew, renew it up for two years, so you don't even have to wait, you know, come back in a year.
You can go back in two years and renew it again if you're still scared.
Yes.
I know that, that, that shooting in, in Raleigh recently where there's domestic violence, protective order involved, that that woman have renewed it multiple times. Yeah. There have been multiple protective orders. Right. Um, and unfortunately in that situation you see that, you know, paper is only good so far as you can enforce it.
Sarah J. Hink: Yeah. And some people need more protection than, than that so that it's obviously worst case scenario of domestic violence, protective orders. and, but they're there for a purpose. They serve a purpose and they're really important for people to have because it does give you that leverage when you call the police Yes.
To say, Hey, I have a protective order against this person. They're here. Mm-hmm . Or they're calling me, they're texting me. They won't leave me alone and they will get arrested.
Ava K. Jennette: Yes. For sure. Mm-hmm .
Sarah J. Hink: Any other advice to give our listeners if they're pursuing a [00:20:00] protective order?
Ava K. Jennette: Yeah, so one big piece of advice that I have run into when I've been defending against these with like a pro, with a person that doesn't have an attorney on the other side, um, is include everything you can think of in the complaint, no matter, even if it was three years ago.
Yes, more recent stuff's the most important I would say, but include everything because. There is case law in North Carolina stating that, you know, if you don't talk about something in your complaint and it's not related to any other allegations, you can't bring it up at a hearing. Um, and that has been a big problem for folks before.
Sarah J. Hink: Yeah. You have to allege it in the complaint so that the other party has noticed. Right. Technically so they can defend against that specific allegation. Yes. Um, and while you might say it in court, the judge is supposed to ignore it. Right. And not. Make it as a basis for the DVPO. Yeah. Um, so certainly include, and I always tell everyone, include dates, include, you know, as much description as you can think about all these instances that have happened.[00:21:00]
'cause some people, they start talking to me and they don't even realize that they're talking about domestic violence. I'm like, that is domestic violence. Yeah,
Ava K. Jennette: absolutely.
Sarah J. Hink: Yeah. And I, I'm pretty sure we go into that on other episodes of what would qualify for domestic violence and the whole cycle of abuse and everything.
But procedurally it is important to listen to this episode as well and know the steps to take because you, you can do it yourself. You can be, um, a pro se party and obtain a domestic violence protective order. I see a lot when I'm in that courtroom. Yeah. Obviously, it's better for you to have an attorney to protect your rights if you're a defendant.
And also to help you on the other side if you're filing, making sure that you include everything you need to include, have all your evidence, have everything printed, your exhibits and whatnot. Yeah. So you can get that protective order when you need it.
Ava K. Jennette: Yeah, absolutely. And
Sarah J. Hink: a shout out to Legal Aid for representing, um, victims of domestic violence.
If you qualify for Legal aid. They represent, you know, people for free. Uh, I know that they're overworked right now and they are turning down cases. So not everyone can get an attorney through Legal [00:22:00] Aid, but there are resources out there.
Ava K. Jennette: Yeah. And, and don't think too, that just 'cause they're free, like they don't know what they're doing.
Oh,
Sarah J. Hink: they do. Yeah.
Ava K. Jennette: Yeah, absolutely.
Sarah J. Hink: They do it all the time. Yeah. So they're great. Mm-hmm . Um, but if you need help with this, call us up at New Direction Family Law and Ain't that some shit?