General Guide to Protective Orders in Virginia
Protective orders are issued to protect the health and safety of the alleged victim (Plaintiff) and plaintiff's family and household members such as children, parents, siblings, etc. There are three different types of protective orders: (1) Emergency Protective Orders; (2) Preliminary Protective Orders; and (3) Protective Orders.
Emergency Protective Orders
Under Virginia Code Section § 16.1-253.4 a judge and a magistrate have the authority to grant an emergency protective order if the judge or magistrate finds that there are 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 against the family or household member. In addition, an emergency protective order can be granted where a judge or magistrate issues a warrant or in a case where a warrant has already been issued against a defendant who committed assault and battery against a family or household member, and finds that there is a probable danger of further acts of family abuse against a family or household member by the defendant. “Probable danger” is presumed unless the presumption is rebutted by the defendant.
An emergency protective order can be issued by any judge of a circuit court, general district court, juvenile and domestic relations district court or a magistrate. The emergency protective order can be written or oral but if it is oral, it must be put in writing by the law-enforcement officer who made the request. Due to the emergency nature of the situation, an emergency protective order can be issued ex parte (with one party present), with no notice to the alleged abuser (defendant). The emergency protective order entered by the judge or magistrate must get served on the defendant. The defendant can file a motion with the court requesting a hearing to dissolve or modify the order issued. Such hearings are given priority on the court's docket.
Emergency protective orders expire at 11:59 p.m. on the third day following issuance or the next day court is in session, whichever is later. If the plaintiff wants continued protection, plaintiff can ask for a preliminary protective order or a full protective order. If the alleged victim is physically or mentally incapable of requesting an extension or filing a petition for a preliminary protective order or full protective order, a law enforcement officer can request an extension on behalf of the alleged victim, but the extension cannot exceed a period of three days after expiration of the original order. The initial request for an emergency protective order and the request for an extension can be oral, in person, or electronic.
Preliminary Protective Orders
To get a preliminary protective order, plaintiff must file a petition for a preliminary protective order with the court and show that he or she recently suffered family abuse or faces immediate and present danger of family abuse.
A preliminary protective order can be issued ex parte (with one party present). The evidence presented to obtain a preliminary protective order can either be in an affidavit or testimony under oath.
Defendant must be personally served with the preliminary protective order. A hearing must be held within 15 days from the date the preliminary protective order is entered. At this hearing plaintiff and defendant can present evidence and question the other side. The preliminary protective order includes the date and time of the hearing. The defendant can ask for the hearing to be continued for good cause. If the hearing is continued, the preliminary protective order is also continued until the next hearing.
If the court finds that the plaintiff was able to show that defendant committed family abuse towards the plaintiff, the court can award a full protective order for up to two years. If the plaintiff is unable to meet the burden of proof, the court will dismiss the plaintiff's petition for a protective order and dissolve the preliminary protective order.
Either party may file a motion with the court and request a hearing to dissolve or modify the preliminary protective order. Such hearings are given priority on the court's docket.
Full Protective Orders
To get a full protective order, the plaintiff must show that he or she suffered family abuse by the defendant.
The court has the authority to grant a protective order for up to two years. The protective order expires at 11:59 p.m. on the last day specified in the order, but if no date is specified, it expired at 11:59 p.m. on the last day of the two-year period.
Before the expiration of the protective order, the plaintiff can file a motion with the court requesting a hearing to extend the protective order. Such hearings are given priority on the court's docket. The protective order can be extended for a maximum of two years. However, there are no limits as to how many times the plaintiff can request an extension.
A copy of the protective order must be served on the defendant.
Either party may file a motion with the court and request a hearing to dissolve or modify the protective order. Such hearings are given priority on the court's docket.
Effective January 1, 2022, an appeal of a protective order is given expediated review by the Court of Appeals of Virginia.
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 should be noted that family abuse is not limited to actual acts of violence. Threat of violence that places the plaintiff in reasonable fear of death, sexual assault or bodily injury can also be sufficient to obtain a protective order.
Protective orders can significantly affect the outcome of your divorce case, especially the custody and visitation issues. If you are either seeking a protective order or defending against a request for a protective order, you should discuss your case with an experienced family law attorney. Contact us today to schedule a consultation.