Virginia Protective Orders and Restraining Orders - A Brief Overview

As always, before reading this post please review my disclaimer by clicking the link above or by clicking on this link.  As always, any legal principles discussed here apply only to the Commonwealth of Virginia.

[Please note that as of July 1, 2016, some of the information in this post will be out of date due to changes in the law.  For more information, click here.]

Introduction

Those of us who practice family law often find we have a lot to laugh about.  We frequently find ourselves dealing with the absurd and the ridiculous - not too surprising, given the nature of what we do.  Unfortunately, sometimes situations come up where there is nothing at all to laugh about - where serious abuse has occurred or is threatened, and action has to be taken to protect the well-being, or even the very lives of our clients and/or their children.

In Virginia, the means for this protection is a "protective order."  A protective order is largely the same as what is commonly referred to in public usage as a "restraining order."  It is an order from the court that bars the respondent (the one against whom the order is sought) from having contact with the petitioner (the one seeking the order), along with a good number of collateral rules.  In today's post, I will cover the basics of protective orders in Virginia - but be aware there are many nuances that I simply cannot cover in one blog post.

When Can a Protective Order Be Sought?

So the first question to ask is under what circumstances can you actually get a protective order?  Well, you can always get a protective order if you have been subjected by anyone to "an act of violence, force or threat," a broad definition that includes, but is not limited to, forceful detention, sexual assault, physical assault, stalking, or any criminal offense that injures you or puts you in reasonable fear of injury, sexual assault or death.  So, stalking, threatening phone calls and e-mails, brandishing a weapon at you, etc., all qualify.  The only catch is that you must seek the protective order "within a reasonable time" after the event that qualifies you for one occurs (so, not months later if no new attacks or threats have occurred in the meantime).

Where Do You Go To Get a Protective Order?

So, say you think you qualify for a protective order, where do you get one?  Well, the simplest approach is to go down to your courthouse and go to the intake office of the correct court and file for one.  If your allegations on their own are sufficient, you will likely get a preliminary protective order, which will take effect immediately, and stay in place until a hearing can be held on a full protective order.  Said hearing is required to be held no more than 15 days after the issuance of a preliminary protective order.

Now, how do you know what the "correct court" is?  Well, that depends on whether or not you are filing against a "family or household member."  If you are, then you go to the Juvenile & Domestic Relations District Court.  If you are not, then you go to the General District Court.  A "family or household member" is defined as one of the following:

• Your spouse
• Your ex-spouse
• Your parents, step-parents, children, step-children, siblings, half siblings, grandparents and grandchildren
• Your parents-in-law, children-in-law, and siblings-in-law, only if they live in the same house as you
• The other parent of any of your children, whether or not you were ever married to that person
• Anyone who "cohabits" with you, or has "cohabited" with you within the past 12 months, and any of their children if those children simultaneously lived with you

It's interesting to note that, until 2011, you could only get protective orders against "family or household members," there was no General District Court option unless the person was actually charged with a  crime (which has a much higher standard of proof than a simple protective order), and even then only they were stalking you, had actually sexually assaulted you, or actually caused you serious bodily injury.  So, if you had an ex-boyfriend who never lived with you but was sending you threatening messages, you had no recourse.  Most of us within the profession think that the 2011 change was a good thing, even though it has caused the General District Courts to become somewhat overwhelmed.

What Happens After the Petition is Filed?

Well, once your petition is filed and your preliminary protective order is issued (and I will say, if you don't have enough to get a preliminary protective order, it's probably not worth pursuing, since it is very unlikely you have enough to win a full protective order), both will be served on the respondent and a hearing will be held.  The judge must decide if it is more likely or not that you have been subjected to "an act of violence, force or threat" (which is called "family abuse" if you are in the J&DR Court) within a reasonable time prior to filing.  If the judge decides not, then the preliminary protective order is dissolved and your case is dismissed (although you have a right to an appeal and new trial in the Circuit Court).

If the judge decides you have proven your case, a full protective order can be issued, which will last for two years (although you can have it extended for another two if you file before the end of those two years and prove you are still reasonably fearful of the person).

What Does a Protective Order Do?

So, what does a protective order actually do?  Well, in every case, it forbids unnecessary contact with you by the respondent, and it forbids the respondent from purchasing or transporting any firearm while the order is in effect (so if he already has a firearm, it must be kept at home at all times) - and requires him to surrender any concealed carry permit he may have.  The court has the power to do a large number of other things as well.  No matter what the court can also, if it so chooses:

• Define the only circumstances in which contact may be "necessary"
• Forbid the respondent from coming within a certain distance of the petitioner
• Also apply the same contact restrictions to any other members of the petitioner's household (forbidding the respondent from contacting them as well)
• Make additional orders that the court thinks is necessary to protect the petitioner and his family members

Additionally, in the case of family abuse in the J&DR Court, the court can also, if it so chooses:

• Grant the petitioner exclusive use and possession of the joint residence
• Require the respondent to pay all utility bills for the joint residence
• Grant the petitioner exclusive use of a jointly owned vehicle
• Require the respondent to pay to house the petitioner in a new residence
• Award the petitioner temporary legal and/or physical custody of any children
• Award the petitioner temporary child support and/or spousal support

Please note that, effective July 1, 2014 due to passage of a new law, pets will be allowed to be included in the list of "members of the petitioner's household" from whom you can seek an order barring the respondent from contacting.  Note, however, that under the new law this will still only apply when you are getting a protective order yourself - you still will not be able to seek a protective order on behalf of a pet that is being abused if no people are being endangered as well.

Enforcement of Protective Order

So, after you have a protective order, the question becomes "so what?"  Specifically, what makes it more than just a piece of paper?  After all, when someone violates a court order, it takes a long time, sometimes months, to get a court hearing to hold them in contempt.  So, what good does a Protective Order do?

Well, a Protective Order is different from other court orders - you don't have to follow normal contempt proceedings.  This is because violation of a protective order is, itself, a criminal act.  If you see the respondent within the distance he's allowed, you can call the police right away and they will arrest him.  No further threats or action by him is necessary.  That is the value of a protective order.

Even more importantly, protective orders are uploaded into a database and enforced nationwide.  Every state has a criminal statute prohibiting violation of a protective order, even another state's protective orders, so if you are in Maryland, and he shows up, you can call the police there and your order will be enforced.

Conclusion

The reality of practicing family law is that sometimes we find ourselves dealing with very unpleasant situations - cases of actual abuse, or, in some ways even worse, completely fabricated abuse.  The protective order is a very valuable tool to protect someone who is a victim of abuse, but is also a bit of a whirlwind of a process, and representation by an attorney could be the difference between success and failure.  If you wish to prosecute a protective order, or defend against one, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!