Protective orders are legal decrees, issued by a judge or magistrate, that protect the health and safety of victims.
In Virginia, protective orders can be issued when any act of violence, force, or threat either (1) results in bodily injury or (2) places one in reasonable apprehension of death, sexual assault, or bodily injury.
Some cases that can lead to a protective order include:
- Family abuse
- Assault and Battery
- Sexual Assault
- Death Threats and Similar Actions
Ultimately, protective orders in Virginia are effective tools that protect the health and safety of you and your family.
Family Abuse Cases
Protective orders are most common in instances of family abuse. Family abuse occurs when the respondent commits:
“Any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury and that is committed by the respondent against the petitioners, the petitioner’s family, or other household members.”Virginia Code § 16.1-228
Family abuse can also include sexual abuse, physical injury, stalking, forceful detention, and other criminal activity.
Family abuse cases only apply to victims in the respondent’s family or household. The Virginia legislature has defined family and household members as including:
- Spouses, whether or not they reside in the same home as the respondent.
- Former spouses, whether or not they reside in the same home as the respondent.
- Parents, stepparents, children, stepchildren, brothers, sisters, half-brothers, half-sisters, grandparents and grandchildren, regardless of whether such persons reside in the same home as the respondent.
- Mothers-in-law, fathers-in-law, sons-in-law, daughters-in-law, brothers-in-law, and sisters-in-law who reside in the same home as the respondent.
In cases involving children, but where the parents are not married, these restrictions still apply. These cases can affect people in the following relationships:
- Individuals with a child in common.
- Individuals who cohabit (are in a sexual relationship “analogous with marriage”).
- Anyone that has cohabited within the previous 12 months.
- Any children that resided in the same home as a cohabiting parent within the last 12 months.
Types of Protective Orders in Virginia
1) Emergency Protective Orders
The court can issue emergency protective orders to victims of abuse, violence, force, or serious threat. These orders last for 72 hours, or until the next session of court (whichever is later).
Emergency protective orders generally appear in cases where the victim and their family or household faces retaliation for an arrest or arrest warrant. They impose harsh penalties on the respondent if they attack or threaten the victim.
In many cases, law enforcement officers petition the court for an emergency protective order after making an arrest of filing for an arrest warrant. Emergency protective orders are issued by either judges or magistrates.
When issued, emergency protective orders have the following powers:
- They prohibit the respondent from contacting the victim or the victim’s family.
- They prohibit the respondent from acts of violence, force, threat, or criminal offenses that injure the victim or their property.
- If a companion animal is involved, and owned by the victim, the respondent must give up the animal to the victim.
- In cases of family abuse, the order grants temporary possession of the residence to the victim and their family.
In addition, a judge or magistrate may add additional conditions as they deem necessary.
Defenses Against Emergency Protective Orders
Protective orders can sometimes feel unfair to the respondents. There are cases where the court issues an order that is unfair due to a lack of information or other facts. Further, emergency protective orders are issued without due process, as they only need a LEO or victim to file the paperwork. No actual hearing is needed.
To lessen the burden placed upon the respondent, the Virginia legislature has provided numerous safeguards to the respondent.
For instance, the issuance of an emergency protective order will not be considered as evidence of any crimes or wrongdoing by the respondent. Additionally, the respondent must receive a copy of the emergency protective order as soon as possible.
Finally, the respondent has the ability to challenge the emergency protective order any time by filing a motion with the court to request a hearing.
2) Preliminary Protective Orders
For more general cases of abuse, violence, force, or threat, a judge can issue a preliminary protective order. These can be petitioned for after an instance of abuse, violence, force, or threat.
They last for up to 15 days in Virginia, or until a full hearing can be heard by a judge.
Preliminary protective orders in Virginia are similar to emergency protective orders. However, they also grant more protections to victims of family abuse, and last much longer.
Generally speaking, preliminary protective orders are like “waiting period” protective orders. They are in effect until a judge can properly hear your case. At the end of the 15 days, you will have a final protective order hearing where the judge will decide if they will grant a “permanent” protective order.
Preliminary protective orders in Virginia become effective upon service to the respondent. However, if the respondent fails to attend the hearing the court may extend the preliminary protective order up to six months.
In addition to all the protections provided by an emergency protective order, in instances of family abuse a preliminary protective order can also:
- Require the respondent maintain utility services for the household or order the respondent to restore such services.
- Grant temporary possession of a jointly owned vehicle.
- Require the respondent to find and provide housing for the family and household members.
- Require any other necessary relief for the victim and their family.
3) Permanent Protective Orders
After a full hearing, the judge will determine whether it is necessary to grant a permanent protective order to the petitioner. The judge’s decision will depend on the best interests of the petitioner and their family.
When evaluating a permanent protective order, the judge considers whether granting the protective order will protect the health and safety of the family. The judge will look for facts such as if the respondent has a history of violence or has threatened the victim since the incident. The judge will also look for warrants or a conviction of the respondent for the original crime.
A permanent protective order has the same conditions placed upon the respondent as a preliminary protective order. However, the permanent protective order lasts for two years.
In addition, you can file to renew this protective order every two years.
Permanent protective orders in Virginia provide temporary custody of minor children to the petitioner for the life of the protective order.
Additionally, the court can force the respondent to pay child support to the petitioner over the life of the protective order.
The court can also compel the respondent to pay the petitioners costs and attorney’s fees. Finally, the court can require the respondent to attend counseling and other treatment programs over the life of the protective order.
As of 2016, any person with a permanent protective order filed against them is also barred from owning a firearm.
Where to File a Protective Order
You should file your protective order in one of two different courts, depending on your relationship with the respondent.
If you are in the respondent’s family or household, you should file with your local Juvenile and Domestic Relations court. Otherwise, file in your local General District Court.
Further information on filing a protective order can be found in our post on filing a protective order in Virginia.
Protective Order Violations
While protective orders don’t provide a physical shield for victims, they do represent a powerful legal one.
When the court issues a protective order, the respondent must fully comply with the conditions set forth in the order. Any violation results in a Class 1 misdemeanor charge.
In addition, they will face a mandatory 60 days in jail for contempt of the court as well as other penalties.
The order prevents the respondent from contacting either the petitioner or the petitioner’s family. Unless the judge grants visitation rights to the respondent, any contact with the petitioner or the petitioner’s family will constitute a further violation of the protective order.
In addition, any violation of a protective order causes a new permanent protective order to be issued for not more than two years after the conviction.
In Virginia, protective orders serve as a legal shield for victims of abuse and real or impending violent crimes. Virginia courts treat violent acts against family and household members differently than acts against everyone else.
If you are a member of the abuser’s family, you should file in the Juvenile and Domestic Relations Court. In all other cases, you will file in the General District Court.
You can obtain a protective order on your own without the assistance of an attorney. Additionally, the court does not charge for filing a protective order.
Hiring an experienced attorney is still recommended due to the complexities of the process and the need for further legal actions. Ultimately, having an experienced attorney by your side can best serve to protect both you and your family.