A domestic violence action is started by filing a Complaint that sets out how you qualify for the relief sought and what incident(s) have occurred. The process is designed for you to be able to complete the forms yourself and appear and obtain the relief yourself. If the restraining order is granted (by the courts during working hours (and by a magistrate when court is closed), the first order is called an ex parte order and is done on an EMERGENCY basis. It becomes effective immediately upon entry.
The order lasts no more than 10 days and requires a return hearing within that ten day period where the Plaintiff testifies to the circumstances and need for a restraining order and Defendant presents a defense and requests that the restraining order not be granted. If the restraining order is granted after a hearing that allows both parties an opportunity to be heard, the order can last up to one year.
At the expiration of the year, the Plaintiff may seek an extension by filing a motion to extend. If a child is present for acts of domestic violence, it is likely that social services will contact you following the entry of the ex parte domestic violence restraining order.
Chapter 50B Protective Orders offer relief including:
- A no-contact provision
- A non-harassment provision
- Requiring the Defendant stay a certain distance from you, and not come to your home, work place, school, child care or other designated area
- The Defendant being ordered to turn all firearms into the sheriff (usually requiring a motion to be filed seeking the return of the firearms after the order expires) and prevented from purchasing any new firearms (attempting to purchase one while the restraining order is in effect is a felony)
- Participation in counseling — such as anger management, substance abuse or Safe Child
- Possession of a house
- Possession of a car
- Temporary Custody Order
- Awarding Attorney’s Fees to either party
- Other relief or prohibitions the court deems necessary
The parties can agree to the entry of a domestic violence restraining order by consent if agreeable terms can be reached. Otherwise, the relief granted is in the discretion of the Judge after a hearing where both parties, and possibly other witnesses, testify.
A violation of the terms of a restraining order granted under Chapter 50B results in a criminal charge. Criminal charges that are often related to domestic violence actions include:
- Stalking
- Harassing phone calls
- Communicating threats
- Assault on a female/minor
- Trespassing
- Violation of a domestic violence restraining order
- Possessing, attempting to purchase or to possess a firearm while a 50B is in place is, itself, a class H felony
If you are seeking a restraining order but do not fit in the category of persons protected under Chapter 50B, relief may be sought under Chapter 50C: Civil No Contact Orders. “Abuse” under Chapter 50C is defined as physically or mentally harming, harassing, intimidating or interfering with the personal liberty of another. Physical injury to the victim is not required. The court can enter a restraining order for no contact, not going to the home or workplace, not to harass or call or anything else the court deems appropriate. A violation of this order, unlike a 50B, does not lead to a criminal charge. It is a contempt action.
For further information, analysis and recommendations regarding your unique circumstances, contact Vitale Family Law at 919-841-5680 or via email.
