A restraining order is a civil court order that is intended to stop violent behavior and keep the abuser away from the abused person. Virginia courts refer to restraining orders as “protective orders,” and they refer to domestic violence as “family abuse.” There are three types of protective orders available in Virginia: (1) emergency protective orders, (2) preliminary protective orders, and (3) (final) protective orders. While the protective order cannot ultimately stop an individual from acting – such as incarceration could – the protective order does establish legal protections for the petitioner(s). Should the respondent violate any of the restrictions in order, they can be arrested and charged with a crime. All three types of protective orders can be issued by a judge or magistrate at all times, day or night, any day of the year.
The relationship you – the petitioner – share with the respondent dictates the authority of the court to enter certain restrictions in the protective order. If the violence or threats you are receiving come from an individual such as a spouse, ex-spouse, parent, child, step-parent or step-child, sibling, half-sibling, grandparent, grandchild, persons with whom you have a child in common, or in-laws who share the same home, a family abuse protective order is appropriate. Petitioners in these situations will likely need to work with the local Juvenile and Domestic Relations District Court (JDR) because of the close relationship amongst the parties. If you experience threats or violence from someone other than those on that list, you will likely need to work with the local General District Court. While it may seem unnecessary to distinguish these relationships, the courts’ authority to respond may change depending on that association.
Emergency Protective Orders
These orders are brief in nature, expiring on their own after 72 hours. Typically, these come at the request of a police officer following a domestic violence arrest where the officer believes the petitioner remains in danger from the respondent. However, an arrest is not a prerequisite for an emergency protective order. An abused individual can also request the court, or magistrate’s office, to issue an emergency protective order if they are in fear of acts of violence or force by another. Because of the emergency nature of these, emergency protective orders may be issued ex parte, which means no notice is given to the alleged abuser.
Emergency Protective Orders prohibit further acts of family abuse, prohibit contact between the alleged respondent and the petitioner and their families, and can give the petitioner sole possession of the family home. However, they only last for 72 hours, so if you fear additional acts of abuse, you would then proceed to seek a preliminary protective order.
Preliminary Protective Order
You can seek a Preliminary Protective Order with or without previously having the 72-hour Emergency Protective Order. These preliminary orders remain in force for 15 days, or until the court holds a hearing on the matter. A preliminary protective order can be issued without requiring the respondent to appear; however, a preliminary protective order may only be issued by a judge, not a magistrate. Moreover, in addition to the standard paperwork filed with the court, the judge will require you to provide a sworn statement describing the reason for the order, explaining the incident(s) of abuse, acts of violence, and threats of future violence or abuse. Finally, you must legally “serve” the respondent, which your attorney or the sheriff’s office can help facilitate. Based upon the information you provide to the court, including in your sworn statement, the judge will determine if a preliminary protective order is warranted.
Preliminary Protective Orders prohibit further acts of family abuse, prohibit contact between the respondent and the petitioner and their families and can give the petitioner sole possession of the family home. They also can keep the respondent from terminating utilities to the home, give temporary possession of a car and require the respondent to provide suitable alternative housing for the petitioner. However, without conducting a full hearing and getting a Permanent Protective Order, these will expire after no more than 15 days.
Permanent Protective Orders
The court also has the authority to issue a full Protective Order, which remains enforceable for up to two years. These may only be issued by a judge and may only be issued once there has been a full hearing on the merits of your claims – giving the respondent the opportunity to be heard and defend themselves. It is vital that you show up on the date of the hearing, because failing to do so means the prior emergency protective order or preliminary protective order ends then and there. However, if the respondent fails to appear, you may still obtain an order against them.
Full Protective Orders go much further than the temporary Emergency Protective Orders and Preliminary Protective Orders. They, of course, prohibit further acts of family abuse, prohibit contact between the respondent and the petitioner and their families and can give the petitioner sole possession of the family home. However, they can also grant temporary custody and visitation of a minor child, can order the respondent into anger management or other treatment and give the petitioner other relief necessary to prevent further abuse. They also can keep the respondent from terminating utilities to the home, give possession of a car and require the respondent to provide suitable alternative housing for the petitioner if necessary. You can also get an award of attorneys’ fees if you had to hire an attorney to get the order. Permanent Protective Orders generally expire after two years, however in some instances can be extended even longer. These orders can also be appealed to Circuit Court if the respondent or petitioner does not like the outcome of the hearing about the order.
Dissolving a Protective Order
If one or both parties want to dissolve a protective order, they are required to go to court to do so. The parties will need to have evidence and support to show why the protective order should be lifted. This includes information like:
- Documentation regarding rehabilitation or work status
- Statements given by other pertinent individuals
- Probation records and other law enforcement documentation that can attest to the person’s prior criminal offense(s)
- If related, evidence showing child custody and visitation rights
If the request to lift the protective order is from the respondent only, he or she needs to show proof of good behavior and no outstanding issues with the court system. In general, a judge will look at the individual facts and analyze other issues to decide whether the respondent is eligible for a change in status. The decision to lift a protective order may be very different depending on whether it was a preliminary protective order or a full one.
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