Protective Orders in Virginia
The courts of Virginia are authorized by statute to issue emergency protective orders, preliminary protective orders and protective orders, which are all aimed at “family abuse,” including abuse of household members.
Virginia courts can also enter protective orders to protect children from harm, even where the harm does not rise to the level of family abuse. These orders differ from each other; some may be entered more quickly than others, and they all provide different remedies.
Consistent with general principles of due process, orders entered ex parte or with very little notice to the opposing party require a greater showing of harm. Moreover, Virginia protective orders come with built-in expiration dates, which vary according to the type of protective order. Generally speaking, courts can grant protective orders for much longer periods of time following notice to the opposing party and an opportunity to be heard at a full hearing.
Emergency Protective Orders. Emergency protective orders can be issued 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.
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.
Preliminary Protective Orders. Even where a law enforcement officer has not been involved, a J&DR court can intervene upon the petition of the victim by issuing a “preliminary protective order.” The order remains in effect while the parties wait for their court hearing. A “preliminary protective order” can be issued without notice to the defendant if the petitioner presents evidence showing that the petitioner faces “immediate and present danger” of family abuse or that family abuse has recently occurred. The petitioner will need to swear under oath that those circumstances exist. Some courts will accept the affidavit of the petitioner, while other courts will require the petitioner to testify under oath.
A preliminary protective order can be issued by the J&DR court after a proper petition has been filed with the court. The court services unit or intake office of the J&DR court can prepare the petition together with the victim. When the petitioner states under oath that he or she has recently suffered family abuse or faces immediate and present danger of family abuse, the court may issue the preliminary protective order without any notice to the defendant.
The defendant will be served with a copy of the preliminary protective order. The order will specify a date and time for a hearing to take place so that the defendant will have an opportunity to question the petitioner’s evidence and to present the defendant’s own evidence in the case. The hearing must be held within 15 days of the date when the preliminary protective order was issued so that the liberty of the defendant is curtailed for only a short time before he or she has had a chance to be heard. The court may continue the hearing upon the request of the respondent for good cause. If the hearing is continued, the preliminary protective order remains in effect until the hearing. At the hearing, the petitioner and the defendant will both have an opportunity to present evidence to the court. If the court finds that the petitioner has proven the allegation of family abuse, the court can issue a protective order, which may last up to two years. If the evidence is insufficient, then the court dissolves the preliminary protective order and dismisses the case.
Courts are understandably cautious when orders are sought ex parte. Sometimes a court may decline to issue a preliminary protective order when no notice has been given to the defendant. If the court declines to issue a preliminary protective order without notice to the defendant, the court schedules a hearing in the matter, and a copy of the petition as well as a notice of the hearing date and time is served on the defendant. After the court hearing, the court decides whether or not to issue a protective order.
Full Protective Orders. A full protective order can be issued pursuant to Virginia Code § 16.1-279.1 when a family or household member has suffered “family abuse.” It is not necessary to show the court that the family or household member faces “immediate and present danger.” Following service of process, notice of a hearing date, and an opportunity to be heard, the court determines whether or not to enter a full protective order. A full protective order can remain in effect for two years.
Protective Order Provisions. Because emergency protective orders and preliminary protective orders are usually issued without notice and an opportunity for the defendant to be heard, the court with those orders cannot include all of the provisions that can be included in a full protective order. Potential provisions for each type of protective order are as follows:
Emergency protective orders, preliminary protective orders and full protective orders can each do any of the following:
- 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).
Preliminary protective orders and full protective orders can go even further, and also:
- Enjoin the defendant from terminating utilities in the premises awarded to the petitioner or order the restoration of utility service that already had been terminated;
- Grant the petitioner exclusive temporary possession or use of a motor vehicle owned by the petitioner alone or owned jointly by the parties (this will have no effect on the title to the vehicle); and
- Require the defendant to provide suitable alternative housing for the petitioner and any other family or household member, including ordering the payment of deposits to connect or restore utility services in the alternative housing.
Finally, full protective orders can also:
- Order the defendant to participate in treatment, counseling, or other programs deemed appropriate by the court;
- Grant temporary custody or visitation of a minor child;
- Assess costs and attorney fees against either party; and
- Grant any other terms or conditions necessary for the protection of the petitioner and family or household members of the petitioner.
The court also may issue a temporary child support order if the respondent has a legal obligation to support any children of the petitioner.
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- New Virginia Law Allows Protective Orders to Award Pet Possession
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