Restraining Orders: 50b and 50c Hearings
Getting a restraining order can be a difficult process whether you are the plaintiff asking for the order or the defendant receiving it. Understanding how the process works can help alleviate some of that difficulty. Obtaining a restraining order requires two separate and distinct court hearings and understanding the differences between those two hearings is important.
The first hearing is for a temporary ex-parte restraining order. This hearing is done in the Defendant’s absence and as such the Defendant does not have an opportunity to argue against this initial temporary order. If the judge finds that there has been domestic violence (50b) or unwanted sexual contact or stalking (50c), the judge will grant the temporary ex-parte restraining order. If the judge does not find that the Plaintiff has shown either domestic violence (50b) or unwanted sexual contact or stalking (50c), no temporary restraining order is granted at that time and the second hearing date is set with no restraining order in place.
If granted, an ex-parte restraining order is a short-term order that goes into effect immediately and remains in effect until the date of the second hearing. To be clear, if you are a Defendant in this kind of matter and a sheriff’s deputy serves you with a restraining order, you must have absolutely no contact of any kind with the Plaintiff. Under no circumstances should you communicate with the plaintiff in any way, even through a third party. Violation of this order can result in a class A1 misdemeanor, which is the highest-level misdemeanor and directly below a felony.
Formal Hearing Date
Whether a temporary ex-parte restraining order was granted at the initial hearing or not, there will be a second hearing during which both sides should be present. If a temporary ex-parte restraining order was granted during the initial hearing, the second hearing must be calendared within ten days.
During the second hearing, a judge will hear evidence from both sides to determine whether a restraining order is appropriate. For the plaintiff, this evidence will include information they put in the initial complaint and that they discussed with the judge during the initial ex-parte hearing. For the Defendant, this will be the first opportunity to show evidence and give testimony to the judge about why a restraining order is not appropriate. If the judge finds for the plaintiff, the judge will issue a longer no contact restraining order against the Defendant. If the judge finds for the Defendant, no restraining order will be issued and any temporary ex-parte order will terminate.
If the Defendant has not been served with the paperwork informing them of the hearing prior to this date, the Judge will give the Plaintiff the option to continue the case to give the sheriff’s office more time to locate the Defendant. If the Defendant has been served and does not appear in court, the Judge can proceed and may grant a restraining order against them in the Defendant’s absence. If the Plaintiff does not appear in court, the Judge may continue the case or may choose to dismiss the case for failure of the Plaintiff to be present at the hearing.
Restraining Orders: More Than Just “No-Contact”
In addition to “no-contact” provisions, a Judge can also grant possession of houses, cars, and pets. A Judge can exclude the Defendant from the residence even if their name is on the deed for the home or if they are liable on the mortgage or lease for the home. An attorney can help a Defendant return to the home to retrieve their personal items and tools they need to continue working. A Judge can also address certain family law matters like Temporary Child Custody. If a person makes a request for temporary child custody in a Domestic Violence Protective Order, the Judge will consider the best interest of the child.
As is clear from the above, if you are in any way involved with a restraining order in Wake County, it is imperative that you contact an experienced attorney at Hatch, Little & Bunn team immediately. Our team can assist you in obtaining or defending a restraining order as well as handle distribution of property and establishing/modifying child custody as addressed in a restraining order.
By: Aaron Goforth and Phillip Cowan