DVPO and Abuse of Process

In North Carolina, the standard of proof required for obtaining a Domestic Violence Protective Order (DVPO), commonly known as a “restraining order,” is based on a preponderance of the evidence. The preponderance of the evidence standard is used in most civil cases and requires the party seeking the DVPO (the plaintiff) to present evidence that convinces the judge that their claim is more likely true than not true. It is an incredibly low standard given the powerful remedies available when a DVPO is granted. Preponderance of the evidence is a lower standard of proof than clear, cogent, and convincing, and is considerably lower than the beyond a reasonable doubt standard used in criminal cases. This inevitably leads to abuse of the DVPO statute.

For instance, the most common remedy requested when a DVPO is granted is temporary, exclusive possession of the residence in which the victim lives. You can imagine a scenario wherein a woman owns her own home, is on the home’s deed, and pays the mortgage. She dates a man who then moves in with her. The man alleges an act of domestic violence and obtains an order granting him possession of the home and no contact from the woman. He has essentially taken the woman’s residence out from under her. And this is more common than you might think!

The process for acquiring a DVPO starts with the filing of a complaint. The admin judge on duty then interviews the plaintiff, and if convinced, will issue a temporary order removing the defendant from the residence and ordering no contact. Often this is based on nothing more than the sworn testimony of the plaintiff. The defendant is not given an opportunity to be heard.

A review hearing is mandated by statute to occur no later than ten days after the temporary order is entered, but by then it is too late. Because when combined with the Domestic Criminal Trespassing statute, a DVPO becomes a tool spouses can use to evict the other spouse and acquire possession of the marital residence.

In North Carolina, the domestic criminal trespass statute is outlined in General Statute § 14-134.3. A spouse can be charged with domestic criminal trespass if that spouse enters a home occupied by an ex-spouse without their permission. The only requirement is that one of the spouses considers the relationship over. So even if the temporary DVPO is dissolved at the review hearing, that spouse still cannot return to the home.

Given the power of that specific remedy, the standard of proof for DVPOs should be increased to a minimum of clear, cogent, and convincing. All too often the DVPO is utilized as a means to evict a spouse or to acquire leverage in a custody case (more on that some other time). And this, my friend, is abuse of process. The purpose of the DVPO is to protect from actual domestic violence. I am doubtful it was ever intended to evict a spouse who got in a minor physical altercation with the other spouse wherein no one was hurt. By granting the DVPO to just about anyone who asks for one, it diminishes the purpose - which is to protect actual victims.