Protective Orders/Restraining Orders
Our attorneys have worked on protective order cases for over twenty years. It is extremely important to retain the services of a lawyer who understands the issues involved with protective orders and who can protect your interests.
We have both family law and criminal defense lawyers at the firm. Accordingly, for over twenty years our firm has represented both clients seeking a protective order and clients seeking to avoid or modify a protective order. For a client seeking a protective order, we are able to assist the client on how best to request a protective order, we counsel clients on how their own statements and actions may help or hurt their ability to obtain the protective order, we assist the client in gathering the information needed for the protective order hearing, we vigorously advocate for our clients in court, and we answer our clients’ questions about custody, child support, use of a shared residence, and a multitude of other issues.
Our lawyers also have helped many clients against whom a protective order has been sought, or against whom a protective order has been entered. Our years of experience allow us to answer our clients’ questions, know what evidence needs to be gathered for the protective order hearing, and to defend our clients in court.
What Protection does a Protective Order Offer
A protective order can do the following:
- Legally order the abuser to stop abusive or threatening behavior
- Remove the abuser from the home
- Prohibit the abuser from contacting an individual at home, at work or by phone
- Order temporary custody and visitation of the children
- Require the abuser to pay for the abused person and the children to live in another house
- Grant exclusive possession, but not title, of the home and/or jointly owned car to the abused person
- Require the abuser to go to treatment or counseling
- Provide other relief necessary for the abused person’s protection
Additional Impact of Protective Orders
Another consequence of protective orders, whether explicitly ordered by the court or not, is that a person under a protective order cannot possess a firearm. Section 922(g) of the United States Code, which defines the federal laws, prohibits any respondent who has a protective order issued against him or her from possessing or transporting firearms.
Virginia law expands on the provisions of the federal law. Code of Virginia Section 18.2-308.1:4 punishes the purchase and transportation of firearms. That section also requires any owner of a concealed weapon permit to surrender it during the life of the protective order. Failure to abide by these conditions is treated as a class 1 misdemeanor.
Types of Protective Orders
In the family law context, protective orders are issued for domestic abuse. These orders can be emergency, preliminary or full. In addition, Virginia courts can also enter protective orders to protect children from harm, even where the harm does not rise to the level of family abuse.
Emergency Protective Orders. Section 16.1-253.4 of the Virginia Code allows a magistrate judge or a juvenile court to issue an emergency protective order if there has been an allegation of family abuse or in conjunction with a warrant for assault and battery against a family member. In order to obtain a protective order, a person must convey that there is “immediate and present danger” of family abuse or that family abuse has recently occurred. Family abuse is defined as violence against a family member or a threat of violence against a family member.
An emergency protective order is issued ex parte, with no notice to the alleged abuser. Ex parte means that the alleged abuser does not participate in the process. An emergency protective order expires 72 hours after it is issued. If the 72 hours end at a time when the court is not in session, the order is extended until 5:00 p.m. on the next business day that the juvenile and domestic relations district court is in session.
Preliminary Protective Orders. If a person needs a protective order for longer than 72 hours, he or she can file a petition in the Juvenile court for a “preliminary protective order.” This process is also ex parte. The person seeking the order must give sworn testimony that family abuse has occurred. If the Judge finds the testimony to be sufficient, the judge can issue a preliminary protective order. A preliminary protective order lasts 15 days.
Full Protective Orders. A full protective order can be issued pursuant to Section 16.1-279 of the Virginia Code. Again, the person seeking the order must prove that family abuse occurred. In order to obtain a full protective order, there must be a full hearing where the alleged accuser has the right to testify, cross examine witnesses, and introduce evidence. A full protective order can remain in effect for two years. This hearing will be scheduled at the time a preliminary protective order is issued.
What Happens if a Person Violates a Protective Order?
Violation of any other provision of the protective order is considered a class 1 misdemeanor. Class 1 misdemeanors in Virginia are punishable up to a year in jail, a $2,500.00 fine, or both, and the conviction will remain on record for life. A first violation of a protective order carries a penalty of a minimum of one day in jail, but the incarceration could be for a longer period of time. A second or subsequent conviction involves significantly longer incarceration.
Whether you are seeking a protective order or fighting a protective order, it is vital to make sure you understand your rights, that you are counseled on the best course of action, and that your case is presented fully and accurately. To schedule a consultation call us at (434) 972-9600 or contact us using the form below.
Please note that the use of our contact form does not create an attorney-client relationship and therefore there is no attorney-client protection for the information you choose to submit to us. As such, please do not submit any confidential or privileged information in the contact form.
We are located in Charlottesville, but our lawyers handle cases in Charlottesville, Albemarle County, Greene County, Fluvanna County, Louisa County, Nelson County, Madison County, Orange County, Roanoke, Harrisonburg, Staunton, Waynesboro, Augusta County, and across Virginia.
Davidson & Kitzmann, PLC
211 E. High Street
Charlottesville, VA 22902
© 2020 Davidson & Kitzmann, PLC