What do you do when you are a victim of an act of violence, force or have been threatened with injury or assault by a family member? In Virginia you can ask the court for a protective order (sometimes more commonly known as a Restraining Order).
What is a Protective Order?
A protective order is a court order forbidding actions of an Alleged Abuser (respondent) and protecting the health and safety of an Abused Person (petitioner); in the case of a family abuse protective order household members of the abused person can also be included. The Alleged Abuser can be an incarcerated or recently incarcerated person.
What is Family Abuse?
By law “family abuse” is defined 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” by a “family or household member.” This can include specific criminal offenses or more general behavior by the Alleged Abuser.
What are the three kinds of protective orders?
Emergency Protective Order (EPO): Emergency Protective Orders can be issued by any court or magistrate in Virginia where the violence or threat has taken place. Either a police officer or the Abused Person can request an emergency protective order in an ex-parte proceeding. An ex-parte proceeding is a hearing where the Alleged Abuser is not present; the only person present is the person requesting the protective order.
Because the EPO is an ex-parte proceeding, with no notice to the Alleged Abuser, Judges and Magistrates can be hesitant to grant it. The person asking for the protective order, therefore, must show some evidence of recent abuse or imminent danger of violence. Additionally, an EPO can be granted if the Alleged Abuser is charged with criminal assault and battery and there is probable danger of the Alleged Abuser committing additional violence.
Due to the fact the Alleged Abuser does not have an opportunity to confront the accusations against him/her, the EPO is granted for a very limited period of time, cannot be used against the respondent as proof the alleged abuse happened, and the respondent can file a motion to have a hearing to end the EPO.
Preliminary Protective Order (PPO): Preliminary Protective Orders in cases of family abuse are issued by the Juvenile and Domestic Relations District Court in the location where the violence or threat took place. PPOs are often ex-parte proceedings based on the Abused Person’s affidavit and/or testimony. An Abused Person can file a petition through the local Juvenile and Domestic Relations District Court Intake Office or, under limited circumstances, through the Juvenile and Domestic Relations District Court directly. If a PPO is granted, it becomes effective once it is served personally on the Alleged Abuser. A violation of a PPO begins a new hearing where the Alleged Abuser can be found in contempt of court.
Similar to the EPO, the PPO is generally an ex-parte proceeding with no notice to the Alleged Abuser and Judges can be cautious to grant it. The Abused Person, therefore, must show imminent danger of family abuse or recent abuse. If a PPO is granted, the judge will schedule another court date to have a full hearing to determine if entering a Protective Order is warranted. That court date must be scheduled within 15 days. The Alleged Abuser can request a continuance, and they frequently do in order to retain an attorney. A judge can also appoint a Guardian ad Litem (a specific kind of attorney) for the Alleged Abuser in limited circumstances. If a continuance is granted the PPO remains in effect to protect the Abused Person until a full hearing occurs.
Protective Order (PO): Protective orders in cases of family abuse are issued by the Juvenile and Domestic Relations District Court in the location where the violence or threat took place. POs can be issued after a full hearing where evidence from both the Abused Person and Alleged Abuser is presented. Witnesses, such as police officers or eye-witnesses, can also testify for each party. A PO can last for up to two (2) years. Modifications and extensions can be requested by written motions.
Civil or Criminal?
Family Abuse Protective order hearings are civil proceedings. In a civil hearing the Person asking for the protective order must prove his/her (and his/her household members) health and/or safety is at risk due to family abuse or threatened family abuse. Civil hearings have a lower burden of proof; in this type of case it is “preponderance of the evidence” which means more likely than not or more than 50%.
There may also be criminal charges brought against the respondent. Those charges may result in a separate criminal hearing to decide if the Alleged Abuser is guilty or not guilty and what punishment (if guilty) is appropriate. A criminal hearing is brought by the Commonwealth’s Attorney Office. The burden of proof for criminal proceedings is beyond a reasonable doubt.
What does a protective order do?
A PPO/PO can have many conditions including:
· No further acts of family abuse or criminal offenses
· No contact with the Abused Person and/or household members
· Granting the Abused Person sole possession of a shared residence
· Stopping the Alleged Abuser from terminating utilities/phone/car or ordering the Alleged Abuser to pay utilities/phone/car
· Requiring the Alleged Abuser to provide alternative housing
· Granting sole possession of a pet to the Abused Person
A PO can have additional conditions including:
· Treatment/counseling for the Alleged Abuser
· Temporary custody/visitation order for children
· Temporary child support order
· The Alleged Abuser’s ability to have a firearm is restricted
Important things to keep in mind…
All cases in Juvenile and Domestic Relations District Court can be appealed to the Circuit Court of the same jurisdiction if the appeal is filed within 10 days of the ruling. An appealed hearing in Circuit Court is a “de novo” trial – meaning a brand new trial.
Domestic/Family Violence is a complex and traumatic experience. Be sure to contact an experienced lawyer to help you navigate these legal issues at a trying time. Also read our blog about how to find a lawyer who is the best fit for you.
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