By: Michael Lehr, Esq.
Due to their portrayal in media, many people understand the basic concept of restraining orders, a court order restricting someone from contacting, touching, or even being near another person.
In Virginia, they are called “protective orders.” Most people associate protective orders with domestic violence. However, in a domestic violence situation, you do not need to petition the court for a protective order. In fact, in Virginia, you can get a protective order in any case involving violence. In cases involving domestic violence, a magistrate or a Juvenile and Domestic Relations District Court judge grants protective. In cases involving just general acts of violence not involving family or household members, a General District Court judge grants protective orders.
When a person has been subjected to and remains at risk of further violence, force, and threats by another person(s) who don’t qualify for a family abuse order, they may request a general protective order from the General District Court that serves their city or county of residence under Virginia Code § 19.2-152.8 -152.10. This means anyone who is not a member of your immediate family or extended family, a spouse, another parent to your child, or a member of your household (regardless of relation). When you file for a general protective order, you are deemed the “petitioner,” while the person you wish to restrain is considered the “respondent.” As the petitioner, you must demonstrate to the presiding judge that the respondent has subjected you to an act of violence or has threatened to do so and that the order is necessary to protect the health and safety of you, your family, or another household member. Each type of protective order allows the courts to restrain the petitioner from particular movements: conduct, contact, or any other restrictions on the petitioner. Failure to abide by the terms of a protective order shall constitute a contempt of court, and the respondent may be criminally charged with a Class 1 misdemeanor.
When you file with the court, you may seek one of three types of protective orders: emergency, preliminary, or merely a full protective order. An emergency protective order is temporary, expiring upon its own after 72 hours. While an individual may petition for such an order, they may also come at the request of a law enforcement officer, which the officer will likely do if the victim is mentally or physically unable to make the request themselves. Regardless of the method of the request, the person petitioning for the emergency order must still affirm, under oath, to the judge or magistrate that the respondent harmed or threatened to harm them, and that there is either danger of future harm or threats of violence, or that the respondent is the subject to a criminal warrant for his action(s). Please recall that the respondent could be anyone who has subjected you to a threat of or actual physical harm, not just a family or household member.
A preliminary protective order is essentially an extension of an emergency protective order, expiring on its own after 15 days, or at such time as the court holds a hearing on the matter. Just as with the emergency order, the court may issue a preliminary protective order “ex parte,” meaning without a hearing. True too, a preliminary protective order requires showing the court that the petitioner has recently been subjected to actual, or threat thereof, physical violence. They must also show it’s likely they will be subjected to such violence or threats in the future, or that the respondent was charged for their conduct. Within the 15 day period, the court will hold a hearing to determine if the protective order should convert to a full protective order, or be dissolved. If the respondent does not appear, the court may extend the preliminary protective order for up to six months. An important distinction is that a preliminary protective order may not be issued by a magistrate, unlike an emergency order.
Finally, there is the full, general protective order, which likewise requires the same showing as the preliminary order, but may only be granted following a full hearing on the merits. Meaning, the petitioner must come to court and share their evidence in support of the protective order, while the respondent has an opportunity to defend themselves. Importantly, a full protective order is enforceable for up to two years, and the petitioner may request to extend the order after another hearing.
If, at a certain point, one or both of the parties determine that they would like to dissolve the protective order, they must go to court and make requests to the court. This is tricky because even when attending the hearing together, the respondent is likely in violation of the protective order unless he/she is the one who requested the dissolution. Furthermore, even if the parties consent to the dissolution, the respondent contacting the petitioner is still a violation, which may lead to a contempt charge. The parties will need to bring evidence to support why the order should be lifted, including but not limited to:
- 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); and
- If related, evidence showing child custody and visitation rights.
Moreover, if only the respondent is seeking the order be lifted, they need 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 differ depending on whether it was a preliminary protective order or a full one.
An important consideration at the moment comes due to the ongoing COVID-19 pandemic. In response to Governor Ralph Northam’s request, the Supreme Court of Virginia issued an order declaring a judicial emergency for all courts across the Commonwealth. While this judicial emergency purportedly ended on May 17, 2020, both Juvenile and Domestic Relations Courts, and General District Courts have individually implemented new restrictions on their day-to-day operations. Moreover, due to the backlog of cases, courts across Virginia are struggling to maintain efficiency as they work through their respective caseloads. At all times during the pandemic, courts have continued to hear emergency matters, but their typical procedures have not been restored. Thus, it very important to contact the Clerk’s office of your local General District Court to determine how they are conducting proceedings on protective orders. In all, obtaining a protective order and requesting one be lifted is a complex action, so it is crucial to retain a skilled Virginia family law attorney who can help you through the process.