Imagine a mother, Jane, and her 10-year-old son, Alex. Alex’s father, who shares custody, has been physically abusive toward Alex during visits. Jane is frightened for Alex’s safety and wants a domestic violence protective order (DVPO) to protect herself and her child. Jane contacts her local domestic violence clinic, asks the personnel at her local courthouse and consults the internet for how to proceed. She learns that she has two options. (1) She can file a DVPO as Alex’s Guardian Ad Litem (GAL), which means the case would list Alex as the plaintiff and Jane would be appointed to speak for him; or (2) she could file for a restraining order against Alex’s father under her own name but seek protection for Alex in addition to herself.
Jane likely can’t do both. She has to choose. This post is to encourage parents, especially those who can’t hire a lawyer, to file under their own name rather than be appointed as GAL.
If a child has been hurt or threatened by their parent, a DVPO, also called a restraining order or a “50b “, can provide vital protection. In North Carolina, a DVPO is a court order that can tell an abuser to stay away from the victim and to stop any further harmful behavior. Many parents in this situation wonder how to file for protection and, as Jane was, are advised that they should file a DVPO on behalf of the child with the parent acting as their Guardian Ad Litem (GAL).
However, North Carolina law lets any adult seek a DVPO if they or their minor child have been victims of domestic violence. In other words, a parent does not have to file the case in their child’s name. Instead, they can file it in their own name and still include their child in the request for protection.
A parent filing under their own name, as opposed to their child’s, offer several distinct advantage.
- It Protects the Child Without Putting Them in the Spotlight: By a parent filing the DVPO, they keep their child from being formally listed as the one suing the other parent. This can reduce the stress and trauma on the child. The child is still protected by the order, but they don’t have to appear in court as the plaintiff or face the abusive parent in a legal battle. This stress and trauma is multiplied exponentially for parties without an attorney. Since the child is the listed Plaintiff, and the Parent/GAL isn’t a licensed attorney, the child is put in the position of having to act as their own attorney. That means a 10-year-old may have to ask questions of the abusive parent, make legal arguments, and testify under oath. On the other hand, if the parent files for the DVPO, they can shield the child from that trauma. The parent can ask the hard questions in court, can take the stand to testify, and can make the necessary arguments.
- Simpler Process: A parent filing on their own behalf simplifies the process. If a child files a DVPO through a parent the court must appoint the parent a GAL to officially represent the child. This isn’t necessary if the Plaintiff is the non-abusive parent.
- Effective Protection: A DVPO filed by a parent and a DVPO filed by a child (with a parent acting as a GAL) provide the same protection. North Carolina’s DVPO law even says the judge can include “any minor child” in the protections. For instance, the order can forbid the abusive parent from contacting or approaching the child, and it can give you temporary custody if needed for safety.
- Avoids Confusion. It is far from a settled legal question whether a parent can even be appointed a GAL for the purpose of seeking a DVPO against their parent. However, the law is very clear that a parent can file on their own and receive protection for their child.
It should go without saying that each case is unique and there may be instances in which a parent appointing themselves as GAL is the best option for themselves and their child. However, in the majority of cases, a parent appointing themselves as a GAL creates unnecessary hurdles and will inevitably put their child in the middle of a highly traumatic legal proceeding.
Regardless of whether a parent files on their own behalf or as a GAL on behalf of their child, it is advisable to speak to a family law attorney. A lawyer can explain the options in plain language and help decide the best course of action. They can guide a parent through the DVPO process and also let them know if any other legal steps (like filing a custody action or notifying DSS) are necessary.
Protecting one’s child should be every parent’s top priority and the law gives provides the tools to do just that. A DVPO is only one such tool and it’s important that it’s utilized in the most effective way.