Emergency Protective Orders in Virginia

Posted on July 13th, 2009, by James Livesay in Family Law. Comments Off

Emergency protective orders can be issued in Virginia 24 hours a day, 365 days a year. An emergency protective order can be issued by any circuit court, general district court, or juvenile and domestic relations district court judge, or by any magistrate. Given the urgency of many situations, a law enforcement officer may request an emergency protective order orally, in person, or by electronic means. The judge or magistrate may issue an oral emergency protective order, which must be reduced to writing by the law enforcement officer who made the request.

Because of the emergency nature of family abuse situations, an emergency protective order can be issued ex parte, with no notice to the alleged abuser (the defendant). There must be reasonable grounds to believe that the defendant has committed family abuse against a family or household member and that there is probable danger of more family abuse by the defendant. This can be shown to the judge or magistrate through the testimony, under oath, of the abused person or a law enforcement officer.

An emergency protective order can also be issued when a judge or magistrate issues a warrant charging assault and battery against a family or household member or finds that such a warrant has been issued and there is probable danger of additional acts of family abuse against a family or household member by the defendant. “Probable danger” is presumed, but the presumption may be rebutted.

Because an emergency protective order curtails the defendant’s liberty when the defendant has not yet had an opportunity to be heard, Virginia law provides the following:

  • A copy of the emergency protective order must be served on the defendant as soon as possible;
  • At any time, the defendant may file a motion with the court asking for a hearing to dissolve or modify the emergency protective order, and the court should grant a hearing as soon as possible; and
  • When an order has been issued without notice to the defendant, the issuance of the order cannot be used as evidence to prove that abuse has occurred.

Because emergency protective orders are usually issued without notice and an opportunity for the defendant to be heard, the court cannot include all of the provisions that can be included in a full protective order. An emergency protective order can impose only the following conditions on the defendant, in accordance with Virginia Code section 16.1-253.4(B):

  • Prohibit further acts of family abuse;
  • Prohibit contact by the defendant with family or household members in order to protect the safety of the family or household members; and
  • Exclude the defendant from the residence occupied by the parties (this will not affect title to any real or personal property).

An emergency protective order expires 72 hours after it is issued. If the 72 hours end at a time when the court is not in session, the order is extended until 5:00 p.m. on the next business day that the juvenile and domestic relations district court (J&DR court) is in session. To gain additional protection, the plaintiff may file a petition with the J&DR court seeking a preliminary protective order or a protective order. When the victim is physically or mentally incapable of filing a petition for a preliminary protective order or full protective order, a law enforcement officer may request an extension of the emergency protective order for an additional 72 hours.

In addition to these emergency protective orders, Virginia law allows for the issuance of preliminary protective orders and full protective orders. A hearing must be held on a preliminary protective order within 15 days of the date the preliminary protective order is issued. A full protective order can be issued only after providing the defendant with service of process, notice of a hearing date, and an opportunity to refute the allegations of abuse in court. A full protective order can remain in effect for two years.

If you need assistance with a protective order in Fairfax, Manassas, Stafford, Fredericksburg or Woodbridge, Virginia, or a surrounding area, our family law attorneys can help. Whether you are seeking a protective order, or defending yourself against a request for a protective order against you, contact us to schedule a consultation today.

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Attorney James Livesay is a Partner at Livesay & Myers. After graduating from the University of Virginia School of Law in 1998, he began his legal career in the Navy JAG Corps, before entering private practice as a Virginia family lawyer in 2001. Along with partner Kevin Myers, Mr. Livesay founded Livesay & Myers in 2003. Today he advises the attorneys in each of the firm’s three offices.

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