Relationships, custody disputes and divorces can all be volatile, with emotions running high. The emotions can spill over into harsh words or abusive behavior. Virginia law allows courts to enter protective orders, both long term and short term, to protect individuals against family abuse. These protective orders can protect not only the party seeking the protective order but also any other members of the household, such as children, other family members, or roommates.
Virginia Code § 16.1-253.1 provides courts the statutory authority to enter “preliminary protective orders” in Virginia. A preliminary protective order is usually done ex parte, meaning without the alleged abuser present, and is done either on an affidavit by the petitioner or by sworn oral testimony of the petitioner. If the court finds that “within a reasonable period of time” the petitioner has been subjected to “family abuse,” the court may issue a preliminary protective order against the alleged abuser.
Because a preliminary protective order is usually done with little to no notice to the other party, the preliminary protective order is only valid for two weeks. Another court date will be given, with notice to both parties, for the court to hold a full hearing on the petition for a protective order. At that hearing, if the court finds that the petitioner has proven the allegation of family abuse by a “preponderance of the evidence,” the court may issue a protective order under Virginia Code § 16.1-279.1 for a period of up to two years.
There are three important parts to § 16.1-253.1 and § 12.1-279.1, regarding preliminary and final protective orders, respectively, to understand. The first is the definition of “family abuse.” Virginia Code § 16.1-228 defines family abuse to include:
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 a person against such person’s family or household member…
It is important to note that family abuse is not limited to actual acts of violence, but also includes a simple threat of violence that places the victim in reasonable fear of death, sexual assault or bodily injury.
The second part of the protective order code provisions that is important to understand is the “within a reasonable time” language. For a preliminary protective order under Virginia Code § 16.1-253.1, the family abuse must have been committed “within a reasonable time” of the petition for the protective order. The question is: what is a reasonable time? If the violence or threat of violence happened within a few days or weeks before the petitioner filed for the protective order, the court will most likely find that to have been within a reasonable time. However, if the alleged act of abuse was months ago, and the petitioner has just now sought out a protective order, the court will probably not find that to be within a reasonable time and deny the preliminary protective order.
If the court denies a preliminary protective order because the “within a reasonable time” requirement is not met, the court may, at its discretion, still schedule a full hearing on the petition for a final protective order. This is because showing the abuse occurred “within a reasonable time” is not required for the issuance of a final protective order. This hearing would be held with notice and an opportunity to be heard to the alleged abuser.
The final important point to understand regarding the protective order code provisions is the meaning of “preponderance of the evidence.” § 16.1-253.1 provides that, at the full hearing on the petition, the court may issue a final protective order only if the petitioner proves the allegations of family abuse “by a preponderance of the evidence.” What does this mean? The preponderance of the evidence standard is a lower burden of proof than “clear and convincing evidence” or “beyond a reasonable doubt.” It simply means that the petitioner must show the court that it is more likely than not that family abuse has taken place.
Livesay & Myers, P.C. has a team of family lawyers across offices in Fairfax, Arlington, Manassas, Ashburn and Fredericksburg, handling protective orders for clients throughout Northern Virginia. Whether you are seeking a protective order, or defending yourself against a request for a protective order against you, contact us to schedule your consultation with an experienced family law attorney today.