If family abuse is occurring, there are three types of protective orders available in Virginia.
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. Ex parte means that the alleged abuser does not participate in the process at this stage. 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. Upon the issuance of a preliminary protective order, a hearing will be scheduled for the court to determine if a full protective order will be issued. The accused party will be in attendance at this hearing.
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. The hearing will be scheduled at the time a preliminary protective order is issued.
Having the assistance of a lawyer in a protective order proceeding can be extremely beneficial both prior to and at the protective order hearing. A lawyer can advise a party regarding how what a party says or does prior to the hearing may have significant effects on whether the court ultimately issues a full protective order. A lawyer can also assist in gathering evidence, interviewing witnesses, and preparing the client and all witnesses to testify at trial. A protective order hearing is a trial; accordingly, not only will each party and every witness be subject to cross-examination, but the complex evidence rules regarding hearsay, best-evidence, privileges, and so forth will be applicable. Very often, a party representing himself or herself finds that his or her evidence is rejected by the court because the evidence was not submitted in the correct way.
Violation of a Protective Order
If a person subject to a protective order does not follow its terms exactly, he or she faces criminal liability. Many people do not realize that a protective order’s order that there be “no contact” means no texts, no emails, no leaving notes, and no asking a child or friend to pass on a message. A violation of a protective is a class 1 misdemeanor carrying a penalty of up to a year in jail.
If you would like more information about protective orders, you can visit our website: protective orders. You can also schedule a consultation with one of the lawyers at our firm by calling (434) 972-9600 or emailing us at our contact page.