DVPO and Your Constitutional Rights
If a court issues a DVPO, a number of otherwise constitutional rights evaporate immediately. For example, if the allegations include violence against or in front of a child, the moving party may be granted temporary sole custody of the child. The defendant thereafter can be barred from visiting with the child, speaking with the child, and may not be able to obtain any information regarding the child, such as the address, school, etc. regarding the child. Further, federal law requires that as soon as a DVPO is granted, the defendant be barred from buying or possessing any firearm or ammunition.
Specifically, 50B-3 establishes the relief that is available to the alleged victim. According to that statute, a DVPO may include any of the following types of relief:
- Direct a party to refrain from certain acts
- Grant a party possession of the residence or household and exclude the defendant from the same
- Require one party to provide a spouse/children with suitable alternate housing
- Award temporary custody of the minor children and establish temporary visitation
- Order eviction of one party from a residence and assist the victim in returning to it
- Order either party to make support payments for the minor children
- Order either party to make payments for support of a spouse
- Provide for possession of personal property, including care and control of animals
- Order a party to refrain from threatening, abusing, or stalking the other party; harassing the other party, even by phone, and from going to the victim’s home or workplace; cruelly treating or abusing an animal owned by the victim or child;
- Award attorney’s fees to either party
- Prohibit a party from purchasing a firearm for a time fixed in the order
- Order any party to attend and complete an abuser treatment program
- Any additional prohibitions the court deems necessary to protect any party or minor children.
The same statute also establishes when Second Amendment rights may be superceded by the Court.
According to 50B-3.1, a Court “shall order the defendant to surrender to the sheriff all firearms, machine guns, ammunition, permits to purchase firearms, and permits to carry concealed weapons that are in the care, custody, possession, ownership, or control of the defendant” if the court finds any of the following factors:
- use or threatened use of a deadly weapon, or a pattern of prior conduct involving the use or threatened use of violence with a firearm against persons
- Threats to seriously injure or kill the aggrieved party or minor child by the defendant
- Threats to commit suicide by the defendant
- Serious injuries inflicted upon the aggrieved party or minor child by the defendant
The statute goes on to establish a 24 hour period within which the defendant must turn over the firearms, ammunition etc discussed earlier, and even allows for the sheriff department to charge a storage fee for holding those items. Of course, the statute also indemnifies the sheriff department from being responsible for any loss or damage to the property.
If you’ve been served with a Domestic Violence Protective Order (DVPO), you should immediately seek counsel. A Minick Law attorney is standing by to help you with your legal needs.
CONTACT US to speak with a Family Law Attorney about your Domestic Violence case.
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Rob Gilligan is an Avvo rated attorney. To find the membership requirements for AVVO, as well as a lawyer directory showing which of the Minick Law attorneys are members of each organization, please visit each organization’s website by clicking the appropriate graphic.
Robert Gilligan was raised in Waynesville, NC, and joined the U.S. Air Force right out of high school. After being honorably discharged after 6 years, Robert attended Wayne State University Law School in Detroit, MI. Robert was highly involved in the University’s law student groups, being the Dean of the Delta Theta Phi chapter, Treasurer of the Environmental Law Society, President of the Law Student Veteran’s Organization, as well as a member of dozens of other agencies. Robert interned with the 3rd Circuit Court, Family Division, and later worked as an associate for a number of solo practitioners in the Metro-Detroit area practicing in areas of law ranging from Bankruptcy to criminal defense. In 2013, Robert relocated back to Waynesville, NC where he lives with his wife, Marissa, and daughter, Claire. Robert’s practice areas include family law, criminal defense, and estate planning.