If you are experiencing threatening or violent behavior, a protective order may be a tool to help protect you and your family and/or household members. Under Virginia law there are three different types of protective orders: (1) Emergency Protective Orders; (2) Preliminary Protective Orders; and (3) Final Protective Orders. These different types of protective orders mainly differ on the duration of the protective order, scope of the protection (i.e. what can be included in the protective order), and whether the protective order is granted ex parte (with one party present) with no notice to defendant or after a full hearing with both sides present.
Emergency Protective Orders in Virginia
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). Emergency protective orders expire at 11:59 p.m. on the third day from when its issued or the next day court is in session, whichever is later. If the alleged victim (plaintiff) wants to continue to have a protective order against the defendant, the plaintiff must file a petition for a preliminary protective order. If the plaintiff is physically or mentally incapable of requesting an extension of the emergency protective order or filing a petition for a preliminary protective order or final protective order, a law enforcement officer can request an extension on behalf of the plaintiff, but the extension cannot exceed a period of three days after expiration of the original emergency protective order.
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.
Preliminary Protective Orders in Virginia
To get a preliminary protective order, the plaintiff must file a petition with the court. The court does not charge a fee for the petition. Plaintiff must 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 be either in an affidavit or testimony under oath.
The defendant must be served with the preliminary protective order for it to be effective.
There must be a hearing within 15 days from the date the preliminary protective order is entered. The preliminary protective order includes the date and time of the hearing. At this hearing the plaintiff will present all the evidence to support why a protective order should be granted, and the defendant will present all the evidence as to why a protective order should not be granted.
Protective Orders in Virginia
To get a final protective order, the plaintiff must prove by “preponderance of the evidence” that he or she suffered family abuse by the defendant. 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 must 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 be sufficient to obtain a protective order. Furthermore, actual injury is also not required. If the act or threat causes reasonable fear of death, sexual assault or bodily injury, that may be sufficient.
Unlike preliminary protective orders, which require that the family abuse have occurred within a reasonable time, protective orders do not have such a requirement. However, even though immediacy of family abuse is not required, in practice, if the family abuse occurred a long time before the plaintiff tries to get a protective order, the court may not grant a protective order. This is because the delay can imply that the plaintiff does not actually have a reasonable fear of bodily harm.
The standard of proof by which the plaintiff must prove family abuse is the “preponderance of the evidence.” This is lower than “beyond a reasonable doubt” and “clear and convincing evidence.” Under the preponderance of evidence, the plaintiff simply must show that it is more likely than not that family abuse occurred.
If the plaintiff successfully proves that he or she was subjected to family abuse, the court will award the plaintiff a protective order against the defendant for a period of two (2) years. However, the protective order can be renewed every two (2) years. A new hearing is held for the court to determine whether the protective order should be extended.
What Can be Included in the Protective Order?
Because emergency protective orders and preliminary final protective orders are entered ex parte, without the defendant having the opportunity to defend him/herself, the scope of what can be included in the protective order is narrower than a final protective order.
Emergency protective orders, preliminary protective orders, and final protective orders can include any or all the following:
- Prohibit acts of family abuse or criminal offenses that result in injury to person or property;
- Prohibit the defendant from having any contact with the plaintiff or plaintiff's family or household members necessary to protect health or safety of the plaintiff and plaintiff's family or household;
- Grant the plaintiff possession of the home the plaintiff and defendant share, with exclusion of the defendant; and
- Grant the plaintiff possession of a pet or companion animal if the plaintiff is considered an owner of the pet.
Preliminary protective orders and final protective orders can also include any or all the following:
- Order that the defendant not turn off any necessary utilities in the home (and order the defendant to turn back on utilities he or she terminated);
- Grant plaintiff (and, where appropriate, any of plaintiff's family or household members) exclusive use and possession of a cell phone number or electronic device, and order that the defendant cannot turn off plaintiff's cell phone or electronic device before the contract with the third-party provider ends;
- Prohibit the defendant from using a cell phone or other electronic device to locate plaintiff (such as by putting a tracking app on plaintiff's phone or ipad);
- Grant the plaintiff temporary possession or use of vehicle owned by the plaintiff individually or jointly with the defendant; and
- Require the defendant to provide suitable alternative housing for the plaintiff and any other family or household member (and, where appropriate, require the defendant to pay deposits to connect or restore necessary utilities in the alternative housing).
In addition to the above, final protective orders can include the following:
- Order the defendant to participate in treatment, counseling or other programs;
- Grant the plaintiff temporary custody or visitation of a minor child;
- Assess attorney fees and costs against either party; and
- Grant the plaintiff anything else that is necessary for the protection of the plaintiff and the plaintiff's family or household members.
Protective orders may affect child custody and visitation determination. In addition, protective orders can affect employment, especially if you have a security clearance. If you are either seeking a protective order or defending against a request for a protective order, be sure to consult with an experienced family law attorney. Contact us today to schedule a consultation.