Protective Orders for Family Abuse in Virginia: The Definitive Guide
The Protective Order process can be confusing, and intimidating. In addition, the stakes can be incredibly high. A Protective Order case can affect a related criminal case, a divorce proceeding, and the Respondent’s property rights. It can also impact, custody and visitation rights related to minor children. A Protective Order can impact rights to possess a firearm. A violation of a Protective Order is a Class 1 misdemeanor in Virginia. Which means a violation is punishable by up to 12 months in jail. A competent lawyer experienced in Protective Order procedure and the criminal ramifications of Protective Orders is a valuable asset.
A Protective Order may also be sought against someone who is not a family or household member. Those petitions should be filed in the General District Court. This article focuses on Protective Orders involving “family or household members” as defined by the Code of Virginia.
Who may file for a Protective Order in Juvenile and Domestic Relations Court?
Virginia Code § 16.1-228 defines “family or household member” and includes the person’s spouse, former spouse, parents, stepparents, children, stepchildren, brothers, sisters, half-brothers, half-sisters, grandparents and grandchildren; in-laws who reside in the same home with the person; any individual who has a child in common with the person (whether or not the person and that individual have ever been married or resided together); or any individual who cohabits, or has in the previous 12 months, cohabited with the person, or any children of them who reside in the same home with them.
What are the 3 different types of Protective Orders?
Emergency Protective Orders (EPO)
(EPO) can be issued ex parte (without the other party knowing or being present) and only last 72 hours from the date and time it is issued, or the next day that court is in session. The Petitioner (the victim) or a law enforcement officer may request an EPO. A judge or a magistrate may issue an EPO if, under oath, the Petitioner asserts and demonstrates that a warrant for Domestic Assault and Battery has been issued and that there is probable danger of further acts or family abuse, or that reasonable grounds exist to believe that Respondent (the accused) has committed family abuse and there is probable danger of a further such offense.
Preliminary Protective Order (PPO)
If the Petitioner wants a longer Protective Order, the Petitioner must go to court and request a Preliminary Protective Order. The PPO lasts 15 days or until a full hearing can be conducted. At the full hearing both parties are given the opportunity to present evidence and testimony to the judge. PPOs can also be issued ex parte upon good cause shown, when supported by an affidavit or sworn testimony. The Petitioner must show immediate and present danger of family abuse or establish probable cause that family abuse has recently occurred.
PPOs, like EPOs are designed to be temporary remedies until a full hearing can be held to determine if a Permanent Protective Order is appropriate. However, PPOs can be extended up to 6 months, if a continuance is needed to effect service on the Respondent, or at the request of the Respondent for good cause. A Respondent might choose to request a continuance if there is also a criminal charge pending related to the abuse allegation, so that the Petitioner is not required to testify at the PO hearing, which could put him or her at risk of incriminating himself, before the criminal trial is completed.
Permanent Protective Order (PO)
(PO) can be issued for up to two years (though an extension can be granted for up to an additional two years, after written motion to the court requesting a hearing to extend the PO prior to the expiration of the original PO). POs will only be issued after notice to both parties and a full hearing before the court.
What Must the Petitioner Show for a Permanent Protective Order?
The Petitioner must demonstrate, that he or she has been the victim of “family abuse” and that the Order is necessary to “protect the health and safety of the petitioner and family or house hold members of the petitioner.”
Code § 16.1-228 defines “family abuse” as “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.” Under the Code, the Petitioner can meet this burden by showing actual physical harm, any act that threatens harm, or “places one in reasonable apprehension of death, sexual assault, or bodily injury…”
What Relief Can Be Granted?
A Protective Order issued under Virginia Code §16.1-279.1 can have sweeping ramifications for the Respondent. A look at this Code section illustrates what is at stake. It is important that each party to a Protective Order have an attorney at the hearing. The Court can grant to Petitioner any one or more of the following:
- Prohibit further acts of family abuse or criminal offenses;
- Prohibit contact as the court deems appropriate to protect the health and safety of the Petitioner and/or family members;
- Grant Petitioner possession of the residence occupied by the parties, to the exclusion of the Respondent;
- Stop Respondent from terminating utilities at the residence, or order respondent to restore utilities if they have been terminated;
- Grant Petitioner possession of a car owned by Petitioner or jointly owned by both parties to the exclusion of Respondent;
- Stop Respondent from terminating car insurance, registration, and taxes;
- Require respondent to provide suitable alternative housing for Petitioner, and require Respondent to pay deposits to connect utility services;
- Order Respondent to participate in treatment, counseling, or other programs (such as Anger Management);
- Grant Petitioner possession of a household pet;
- Any other necessary relief, including temporary custody, visitation, or child support related a minor child of the parties;
Whether you are seeking a Protective Order to keep you and your family members safe, or you need to defend against a Protective Order Petition, the lawyers at Farrell and Croft, P.C. are experience advocates for you.
At Farrell & Croft, P.C. our attorney, Jeanne E. Brown, is experienced in civil protective orders and related criminal defense. She is committed to providing you with the representation you need. She will also assist you in identifying your goals and devise the best methods for achieving your objectives. Call her today for an appointment at 703-335-9390.