DOMESTIC VIOLENCE & PROTECTIVE ORDERS
In Virginia, restraining orders are known as protective orders. These are normally issued due to some type of family abuse, including by those in the immediate household. Obtaining a protective order and requesting one be lifted are complex, so it’s important to retain a skilled Virginia family law attorney who can help you through the process.
The person seeking a protective order is referred to as the “petitioner,” while the person who the protective order is entered against is called the “respondent.” In Virginia, there are three types of “protective orders” which are legal documents used to stop or prevent abusers from acting on their threats of violence and harassment. Moreover, the relationship you – the petitioner – share with the respondent dictates the authority of the court to enter certain restrictions in the protective order. In Virginia, the three types of protective orders are: (1) emergency protective orders, (2) preliminary protective orders, and (3) 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.
- Emergency Protective Orders: These can be issued around the clock every day of the year. Because of the emergency nature of these, they may be issued ex parte, which means no notice is given to the defendant, or alleged abuser. They expire 72 hours after issuance, and until 5 p.m. the following business day if the court is not in session when the order expires.
- Preliminary Protective Orders: If a person still needs a protective order once the emergency order expires, they can file for a preliminary protective order. These are generally granted ex parte and in most jurisdictions are not hard to obtain.
- Permanent Protective Orders: These are issued when a family member has suffered “family abuse” and it doesn’t require the need to show imminent danger. These typically remain in effect for two years.
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, the courts refer to this as “family abuse.” 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 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. In other words, you can request the court, or magistrate’s office, to issue an emergency protective order if you are in fear of acts of violence or force by another; the police do not need to arrest them before an emergency protective order is issued. Emergency protective orders can be issued by either a magistrate or judge.
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, or “affidavit,” describing the reason for the order, such as: 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 JDR court 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.
Permanent 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 both parties want to dissolve a protective order, they are required to go to court. It’s tricky because even by going to court together, the respondent is in violation of the protective order if he or she does not request the court to dissolve the protective order. Even when parties consent, making contact with the petitioner is a violation, and if found guilty, it’s a Class I Misdemeanor the first time around and carries a mandatory jail sentence.
You’ll 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
Evidently the respondent would like to have the protective order lifted as it can have serious repercussions in their daily life. It can affect their rights and cause additional problems in the future.
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.