50B Getting a Domestic Violence Protective Order / Restraining Order in Wake County
A domestic violence protective order in Wake County is a very serious matter. Whether you are seeking a protective order or someone has taken out an order on you, it is advised that you seek legal representation. There are many constitutional rights and freedoms that are at risk upon issuance of this type of Protective Order.
Any person residing in North Carolina may seek relief under Chapter 50 of the North Carolina General Statues and obtain a protective order upon finding of certain facts. The domestic violence protective order in North Carolina is generally referred to as a “50B Order.” This is a civil action filed with the Wake County Clerk of Court alleging acts of domestic violence against himself or herself or a minor child who resides with or is in the custody of such person.
A 50B Domestic violence protective order provides emergency relief for a person (a victim or domestic violence) who believes that there is a danger of serious and immediate injury to himself or herself or a minor.
Can a Magistrate issue a 50B Domestic Violence Protective Order / Restraining Order?
The North Carolina General Statutes clearly gives authority of Magistrates to issue these types of ex parte orders, but it is only if the Chief District Court Judge of that county authorizes it. Currently in Wake County Magistrates do not hold ex parte hearings to order Domestic Violence Protective Orders (DVPO).
In Wake County the Complaint and Motion is sworn (or affirmed) and subscribed to before a Deputy Clerk of Superior Court. Then the Ex Parte Domestic Violence Order is issued and signed by a District Court Judge upon hearing the facts in the Complaint. This limits the available times to apply for a DVPO since the courthouse is only in open on weekdays during court hours (excluding holidays), while there is always a Magistrate on duty and available 24 hours a day 365 days a year. For immediate help in a domestic violence situation call 911.
How do I get a Protective Order in Wake County? How do I get a Restraining Order in Wake County?
To get a 50B Domestic Violence Protective Order in Wake County you will need to visit the 11th floor of the Wake County Courthouse (This may be subject to change as new court facilities are being built). This is where you will find the Wake County Clerk of Court. You will have to file a Complaint and Motion for Domestic Violence Protective Order. The Clerk’s Office in Wake County has a stealer record of being extremely helpful and they will explain and walk you through the process. Contact the Wake County Clerk’s Office at (919) 792-4000.
If there is finding that an ex-parte protective order should be given, the individual against who protection is sought will be served by the Wake County Sheriff and a hearing will be scheduled within 10 days after prompt service (with some exception). The Defendant is served with what is called a Notice of Hearing. It is at this hearing that the court will determine whether the Order will be continued (up until one year) and whether emergency relief in protecting the plaintiff and the plaintiff’s children should be granted.
What protections do a domestic violence protective order / restraining order provide a victim of domestic violence? How does a 50B order affect child custody?
§ 50B 3. Relief is:
If the court, including magistrates (currently not in Wake County) 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.
(a1) Upon the request of either party at a hearing after notice or service of process, the court shall consider and may award temporary custody of minor children and establish temporary visitation rights as follows:
(1) In awarding custody or visitation rights, the court shall base its decision on the best interest of the minor child with particular consideration given to the safety of the minor child.
(2) For purposes of determining custody and visitation issues, the court shall consider:
a. Whether the minor child was exposed to a substantial risk of physical or emotional injury or sexual abuse.
b. Whether the minor child was present during acts of domestic violence.
c. Whether a weapon was used or threatened to be used during any act of domestic violence.
d. Whether a party caused or attempted to cause serious bodily injury to the aggrieved party or the minor child.
e. Whether a party placed the aggrieved party or the minor child in reasonable fear of imminent serious bodily injury.
f. Whether a party caused an aggrieved party to engage involuntarily in sexual relations by force, threat, or duress.
g. Whether there is a pattern of abuse against an aggrieved party or the minor child.
h. Whether a party has abused or endangered the minor child during visitation.
i. Whether a party has used visitation as an opportunity to abuse or harass the aggrieved party.
j. Whether a party has improperly concealed or detained the minor child.
k. Whether a party has otherwise acted in a manner that is not in the best interest of the minor child.
(3) If the court awards custody, the court shall also consider whether visitation is in the best interest of the minor child. If ordering visitation, the court shall provide for the safety and well being of the minor child and the safety of the aggrieved party. The court may consider any of the following:
a. Ordering an exchange of the minor child to occur in a protected setting or in the presence of an appropriate third party.
b. Ordering visitation supervised by an appropriate third party, or at a supervised visitation center or other approved agency.
c. Ordering the noncustodial parent to attend and complete, to the satisfaction of the court, an abuser treatment program as a condition of visitation.
d. Ordering either or both parents to abstain from possession or consumption of alcohol or controlled substances during the visitation or for 24 hours preceding an exchange of the minor child.
e. Ordering the noncustodial parent to pay the costs of supervised visitation.
f. Prohibiting overnight visitation.
g. Requiring a bond from the noncustodial parent for the return and safety of the minor child.
h. Ordering an investigation or appointment of a guardian ad litem or attorney for the minor child.
i. Imposing any other condition that is deemed necessary to provide for the safety and well being of the minor child and the safety of the aggrieved party.
If the court grants visitation, the order shall specify dates and times for the visitation to take place or other specific parameters or conditions that are appropriate. A person, supervised visitation center, or other agency may be approved to supervise visitation after appearing in court or filing an affidavit accepting that responsibility and acknowledging accountability to the court.
(4) A temporary custody order entered pursuant to this Chapter shall be without prejudice and shall be for a fixed period of time not to exceed one year. Nothing in this section shall be construed to affect the right of the parties to a de novo hearing under Chapter 50 of the General Statutes. Any subsequent custody order entered under Chapter 50 of the General Statutes supersedes a temporary order issued pursuant to this Chapter.
(b) Protective orders entered pursuant to this Chapter shall be for a fixed period of time not to exceed one year. The court may renew a protective order for a fixed period of time not to exceed two years, including an order that previously has been renewed, upon a motion by the aggrieved party filed before the expiration of the current order; provided, however, that a temporary award of custody entered as part of a protective order may not be renewed to extend a temporary award of custody beyond the maximum one year period. The court may renew a protective order for good cause. The commission of an act as defined in G.S. 50B 1(a) by the defendant after entry of the current order is not required for an order to be renewed. Protective orders entered, including consent orders, shall not be mutual in nature except where both parties file a claim and the court makes detailed findings of fact indicating that both parties acted as aggressors, that neither party acted primarily in self defense, and that the right of each party to due process is preserved.
(c) A copy of any order entered and filed under this Article shall be issued to each party. In addition, a copy of the order shall be issued promptly to and retained by the police department of the city of the victim’s residence. If the victim does not reside in a city or resides in a city with no police department, copies shall be issued promptly to and retained by the sheriff, and the county police department, if any, of the county in which the victim resides. If the defendant is ordered to stay away from the child’s school, a copy of the order shall be delivered promptly by the sheriff to the principal or, in the principal’s absence, the assistant principal or the principal’s designee of each school named in the order.
(c1) When a protective order issued under this Chapter is filed with the Clerk of Superior Court, the clerk shall provide to the applicant an informational sheet developed by the Administrative Office of the Courts that includes:
(1) Domestic violence agencies and services.
(2) Sexual assault agencies and services.
(3) Victims’ compensation services.
(4) Legal aid services.
(5) Address confidentiality services.
(6) An explanation of the plaintiff’s right to apply for a permit under G.S. 14 415.15.
If you would like to obtain a Restraining Order or you need legal defense after being served with a restraining order then call The Gurney Law Firm at (919) 930-4027. Eric Gurney is a criminal lawyer for people in Wake County, Raleigh, Apex, Garner, Wake Forest, Cary and the Triangle.
Expungement in NC: Getting an Expunction of Criminal Record
As an expungement lawyer in Raleigh I get asked by clients how they go about getting their criminal record expunged. Many people who are applying for jobs or graduate school are finding it hard because of their criminal record. The Gurney Law Firm handles expungements for its client’s so they can move on with their life. There is more than one way a lawyer can get offenses off your criminal record, but the most effective and most common is getting an Expungement.
Am I eligible for an NC Expungement of my criminal charge(s)?
Pursuant to the North Carolina General Statutes, people in certain situation are entitled to have specific criminal charges or their whole criminal history expunged. Being eligible depends on different factors including age, guilty or not guilty, case dismissed and/or the type of charge (for example – Misdemeanor, Felony, Drug Charges, Drug Paraphernalia Charges…). To determine if you are eligible to have your criminal charges expunged contact The Gurney Law Firm.
In general you may obtain an expunction under North Carolina Law for:
- Expunctions on basis of age
o Certain misdemeanor convictions for offenses committed before the age of 18 and 21
o Older misdemeanor larceny convictions
o Discharge and dismissal or conviction of certain gang offenses
o Discharge and dismissal of cyber bullying offenses
- Expunction of Dismissals and Similar Disposition
o Dismissal or finding of not guilty of misdemeanors, felonies, and certain infractions
o Charges resulting from identity theft
o DNA records
o After pardon of innocence
- Expunctions of Drug related offense
o Discharge and dismissal of certain drug related offenses
o Finding of Not Guilty or dismissal of certain drug related offenses
o Conviction of certain drug related offenses
How do I get an expungement in North Carolina?
Hire an NC expungement attorney and have them work through the process of eligibility, hearings, paper work and cost. You do have the option of trying to go the pro se rout, but it is not recommended because there is a lot at risk when trying to clean your record and a mistake could be very costly. A good North Carolina expungement lawyer can take you through the detailed process.
What is the effect of a have a criminal charged expunged of my record?
Basically an expungement is supposed to place the person back in the same position as if they were never charged with the crime. So, after an expungement you can legally say that you were never charged with that expunged crime. An order of expungement purges all official state and county records of the incident. All records of the arrest, charge and disposition of the case are erased permanently off your public record. The only record kept is a confidential file by the North Carolina Administrative Office of the Courts (usually called the NC AOC). These confidential files are only able to be seen by Judges of the General Court of Justice for the purpose to see if you have been granted a previous NC Expungement.
What if I am not eligible to get an expungement?
In this case you need to contact an NC Expungement Lawyer who can review your case and explore other options such as reopening your case and or filing a Motion for Appropriate Relief.
After my record is expunged can I say I was never charged with a crime? What about College Applications, Job Application or Apartment Applications?
Yes! If the charge or charges have been expunged then you can legally say you were never charged with the crime. All record of the charge has been wiped clean (except federal agencies like the FBI and a confidential file held by the AOC)
What is the expungement process? How long will it take?
In Wake County the Clerk of Courts office advises that the expungement process can take between 6 and 8 months. This timeline can vary depending on the case. The factors affecting this timeline are the defendant, the expungement lawyer handling your expungement, the County where the charge(s) originated from and the efficiency of the AOC and the SBI.
Every County (all 100 Counties in NC) may handle the expungement process a little differently but in general: The expungement process starts at the county level where the expungement clerk will review, collect fees, check eligibility and process the paperwork. It will then move to the State Bureau of Investigations (NC SBI) for a background check of your criminal history. Records from all 100 counties in North Carolina will be checked. Next the Court will search confidential records to determine if an expungement of your record has been previously done under N.C.G.S. 15A-145, 15A-146 or N.C.G.S. 90-96. Then it will check conviction records on the State and Federal level. Then the case is kicked back down to the county the Order of Expunction was started and upon review a Judge will sing an order directing all public entries related to the expunged offense be purged from the public records. This includes all records by police and the courts. Then the clerk will communicated with the sheriff’s office, police and federal agencies. (It should be noted that each county may handle the expungement process differently).
Why get an expungement of your criminal history in NC?
- Applying to School (Grad School, Law School, Medical School, Business School)
- Applying for jobs
- Getting licensed for different occupations
- Trying to get an apartment
- Applying for student loans (Having drug related offenses on your criminal record can make you ineligible for loans, grants and certain work assistance under the Higher Education Act of 1998)
- Owning a gun or possessing a gun in NC (In North Carolina if you have a felony conviction on your record your rights may be eliminated or extremely limited)
- Working with children (Whether volunteering or employment at a place where you are working with kids may not be possible with certain offenses on your record)
- Adopting children with a criminal history can be hard if not impossible for some people
A Raleigh Expungement lawyer will often hear their clients ask…. Can I get an expungement? How do I get this charge off my criminal record? If you have question about an expungement you should contact a Raleigh Criminal Lawyer like Eric Gurney.
The Gurney Law firm is a criminal defense firm in Raleigh, NC. We handle all criminal matters (Serious felony and misdemeanors) and expungements. If you need a criminal lawyer in Raleigh, Durham, Cary, Fuquay-Varina, Apex, Knightdale or Wake Forest contact criminal defense attorney Eric Gurney. If you need a lawyer that handles expungements contact us at (919) 930-4027.