Domestic Violence and Criminal ActionBy Carolyn Woodruff, JD, CPA, CVA, North Carolina Family Law Specialist
Often questions arise when domestic violence involves an assault in North Carolina. I write for the Rhino Times and have for several years. My column is Ask Carolyn. Here is a question and answer on the domestic violence topic in August 2019. Whether it is Greensboro, Asheboro, or any other North Carolina area, these issues of domestic violence are serious and affect all of us. A reader wrote:
My husband has a DVPO order on me based on scratches he self-inflicted. He was given possession of our house.
We have a criminal case coming up regarding this. If he is found guilty, will his DVPO order be lifted and will I be able to move back into the house?
Unfortunately, it seems domestic issues bring out the “liar” in many people. There are lots of physical ways to show that scratches are self-inflicted. I trust he took pictures and that you have these pictures to analyze.
While a DVPO (domestic violence protective order) and a criminal charge may arise out of the same facts, a DVPO is a civil action and technically unrelated to a criminal action. The burden of proof between a criminal action (beyond a reasonable doubt) and the civil DVPO (preponderance of the evidence) is different. I like to think that “beyond a reasonable doubt” is 99 percent proof and “preponderance of the evidence” is 51 percent proof.
From your facts, you seem to suggest that you have charged as the complaining witness your estranged husband with a crime such as assault. You seem to imply also that you will likely win as the prosecuting witness and have your estranged husband found guilty of the assault. So your question is whether you can do anything with that guilty finding in the criminal action to help yourself in the DVPO.
A DVPO is subject to modification or even being vacated under Rule 60 of the North Carolina Rules Of Civil Procedure. A criminal conviction on an assault might be a factor in reopening the civil DVPO case. Begin with winning the criminal case, and then look carefully at your options to re-open the 50B.
Send your questions on family law and divorce matters to “Ask Carolyn…” at firstname.lastname@example.org, or P.O. Box 9023, Greensboro, NC 27427. Please do not put identifying information in your questions. Note that the answers in “Ask Carolyn” are intended to provide general legal information, and the answers are not specific legal advice for your situation. The column also uses hypothetical questions. A subtle fact in your unique case may determine the legal advice you need in your individual case. Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by “Ask Carolyn…” “Ask Carolyn” will be a regular column, but not necessarily weekly.