By: Stephanie T. Jenkins. Stephanie Jenkins is a Raleigh Divorce Attorney. North Carolina has strict and progressive laws against domestic violence. It is important to understand that North Carolina has both civil domestic violence laws and criminal domestic violence laws; the requirements and results are dependent upon which avenue is pursued by a victim of domestic violence.

Civil Domestic Violence Law

“Chapter 50B” (N.C. Gen. Stat. § 50B) is the shorthand term for the statute that governs civil domestic legislation in North Carolina. You have likely heard about a “restraining order,” which is commonly granted to a victim in a civil domestic case. After reviewing the application for a domestic violence protective order filed by a victim of domestic violence, a judge can order the offender to leave the residence, not come around the victim’s work or school ( the “restraining” part of the order), and even grant custody and support. However, the court first has to find, based on the application, that the alleged offender has caused harm to the victim(s) or attempted or to do so, and that the victim and alleged offender have had at some time had a dating or intimate relationship. The initial order granted to a victim who has alleged domestic violence in such a case can be granted by a judge without notice to the offender. The offender will then be served a copy of the order with the return court date and the restrictions and restraints imposed on the offender by the order. At a hearing, the judge has the right to continue the order in effect, modify portions of it, or dismiss it entirely. A person who is served with a civil domestic violence order is not placed in jail for any period; he/she is merely served with paperwork notifying him/her of the date of the hearing. After the offender has knowledge of the order, then he/she can be charged criminally for violating the civil domestic order. Although a civil domestic order does not subject an offender to jail time so long as there is no violation of the order, a potential defendant should be aware that such an order will likely show up a background check for the one year that order will likely be in force.

Criminal Domestic Violence Law

If someone is charged criminally in North Carolina, the case is captioned “State of North Carolina vs. John Smith,” unlike the civil case where it is “Angie Smith vs. John Smith.” The distinction in named parties is an important one because after a person is named as a defendant in a criminal case, only the State of North Carolina can “drop the charges,” not the alleged victim. Another big distinction between the civil and criminal domestic laws is that a criminal defendant will likely be physically arrested, taken to jail and sometimes remain in jail for up to 48 hours depending on the size of the city/town. The victim of domestic violence should not assume that the alleged offender will be in jail for the full 48 hours but should check with the arresting law enforcement agency as the offender may be freed from jail under certain circumstances. Potential punishments in criminal domestic violence court range from probation for the first-time offender who is likely charged with a misdemeanor to years in jail for a serious injury resulting to a victim of domestic violence.

Contributor: Stephanie T. Jenkins. Stephanie Jenkins is a Raleigh, North Carolina Divorce Attorney and a Partner in the Family Law Firm of Gailor, Wallis & Hunt, PLLC. She is a former Wake County, North Carolina Assistant District Attorney. Stephanie has been practicing family law and criminal law for over 15 years in Raleigh, North Carolina.

For more information contact: Gailor, Wallis & Hunt, PLLC at 1101 Haynes Street, Suite 201, Raleigh, NC 27604, Tel: 919-832-8488 or go to www.gailorwallishunt.com.

Disclaimer: The information contained in this article is intended as a general guide and is not to be used as legal advice by Gailor, Wallis & Hunt, PLLC. Whether or not you may be entitled to take action in regard to the information addressed in this article can only be determined after a thorough review of the facts and circumstances of your case. You may contact North Carolina Family Lawyers Gailor, Wallis & Hunt, PLLC, a full service divorce law firm, at 919-832-8488 or 910-509-7223.
The civil and criminal domestic systems can work together, with a victim receiving relief from both avenues, though such relief may mean more trips to the court house for all involved.

This entry was posted on Tuesday, January 20th, 2009 at 6:52 pm and is filed under Separation and Divorce. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.