Protective Orders in Virginia

Action Alliance Advocate Training Module

July 2014

What is a Protective Order?

A Protective Order is a civil legal remedy for individuals experiencing family abuse or acts and/or threats of violence.

They can be requested even if no criminal charges are filed.

They can protect an individual, their children, and other household members.

Who is eligible to ask for a Protective Order?

Any person who has been subjected to an act or threat of violence that results in bodily injury or places them in reasonable fear of death, sexual assault, or bodily injury.

Some examples of acts of threats include:• Hitting, kicking, punching

• Shoving, biting, burning, cutting

• Sexual assault

• Forceful restraint

• Threats with a gun or other weapon

• Stalking

• Other ways of injuring or threatening injury

Where to go to Request a Protective Order

This depends on the relationship between the person who has been injured/threatened and the person who is harming/threatening:If the two people are Family Or Household Members (see next slide), the request should be made to Juvenile & Domestic Relations Court for a Family Abuse Protective Order.

See Virginia Code § 16.1-279.1

All other requests for Protective Orders should be made to the General District Court (unless either of the parties is under the age of 18, in which case the request should be made to Juvenile & Domestic Relations Court). See Virginia Code § 19.2-152.10

NOTE: Anyone who has been injured/threatened can request a protective order.

Who is a Family or Household Member?

To be eligible for a Family Abuse Protective Order, the relationship between the two parties must be:

Spouse or former spouse

People with a child in common

People who have lived together as boyfriend or girlfriend in the past year

Other family relationship, including parents, grandparents, children, brother, or sister

See VA Code § 16.1-288 for the definition

Three Types of Protective Orders

Emergency Protective Order

Usually requested by law enforcement if an arrest has been made or if the officer believes there may be further abuse

Can also be requested by a victim at the magistrate’s office even if an arrest has not been made

Can only be issued by a magistrate or Judge

Lasts only 72 hours (or until Court meets)

See VA Code § 16.1-253.4

And

VA Code § 19.2-152.8

Preliminary Protective Order

Only issued by a Judge

Only issued when danger of further abuse exists but there is not enough time for a full hearing with both parties

Generally only lasts 15 days

Can be extended if the abuser/respondent can’t be served

See VA Code § 16.1-253

And

VA Code § 19.2-152.9

“Permanent” Protective Order

Only issued by a Judge Can be issued for up to 2 years Issued when there is enough evidence of an act or threat of

violence and both parties have had the opportunity to be heard in Court*

Can be extended for an additional 2 years if the petitioner requests the extension and if the Judge finds there is need for extended protection.

There is no limit on the number of extensions that can be granted

See Virginia Code § 16 .1-279.1AndSee Virginia Code § 19.2-152.10

*(the respondent can choose not to show up, but must have been notified of the hearing).

What Can Protective Orders Do?

All Orders can state:

No contact from the respondent

No further acts of violence, force or threat

Granting the petitioner the possession of any companion animal

Other conditions the Court may deem necessary to protect the individual and family

Family Abuse Preliminary Orders can also:

State all in the prior slide

Require the abuser to maintain utility service for the household

Grant temporary possession of a jointly owned car

Require the abuser to provide suitable alternative housing

Other relief the Court may deem necessary to protect the individual and family

Family Abuse “Permanent” Orders can also:

State all in the prior 2 slides

Require the abuser to participate in treatment or counseling

Grant temporary custody and visitation for the children

Grant temporary child support

Where do People go to Petition for Protective Orders?

Emergency Protective Order

All individuals who are in danger or have been assaulted recently can go to the magistrate’s office to request an EPO.

Remember, a law enforcement officer may also request an EPO on behalf of an individual.

If the magistrate does not grant the EPO, a petition for a Preliminary Protective Order can be filed with the Court.

Family Abuse Protective Order (either Preliminary or “Permanent”)

Individuals whose relationship with the abuser meets the definition of Family or Household Member go to the Intake Office of the Juvenile and Domestic Relations Court EITHER where the individual lives or where the abuse/violence took place.

To know what kinds of questions the intake officer will ask, anyone can go to the I-CAN website (some jurisdictions accept I-CAN generated petitions, but many do not, although taking the paper work to the Intake Office may be helpful for the petitioner in completing new paper work). Note: I-CAN also available in Spanish.

Protective Order (not Family Abuse), either Preliminary or “Permanent”

Individuals who are NOT in a family/household relationship with the abusers must go to the Clerk’s Office of the General District Court EITHER where the individual lives or where the abuse/violence took place.

To know what kinds of questions the intake officer will ask, anyone can go to the I-CAN website (some jurisdictions accept I-CAN generated petitions, but many do not, although taking the paper work to the Intake Office may be helpful for the petitioner in completing new paper work)

How Do Protective Orders Work?

What happens after the Judge (or Magistrate) issues any kind of Protective Order? Protective Orders can only be enforced if the order has been

served on the respondent.

Once it has been served, it is entered into VCIN, Virginia Criminal Information Network

It is the respondent’s responsibility (and NOT the petitioner’s) not to violate the terms of the Protective Order

What if the Order is Violated?

A violation of certain terms in the order is a criminal offense

Any act of violence is a criminal violation

A violation of a no-contact provision is a criminal offense

Criminal violations may be reported to the police or to the magistrate

Note: Criminal violations—means that the office may arrest the respondent/take immediate action.

Violations of other terms are not criminal and must be enforced through a “show cause” motion with the Court

Note: Show cause offenses—means that a hearing must be held to determine if the order was violated before any action is taken, such as an arrest of the respondent.

Important Information for People who have Protective Orders

What do people need to know about their Protective Orders?

First and foremost, it is important for people to know that orders are not enforceable until they are served on the respondents

It is a good idea for people to keep a copy of the order with them at all times

It is a good idea to let friends, family, employers, school staff, etc. know about the Order and that it is appropriate to call the police if necessary

It is important to contact the police immediately following a criminal violation

Individuals should save any “evidence” of violations, including voice mails, emails, texts. Record calls if possible.

It is best for individuals with a no contact order NOT to contact the abuser but to inform the Court if a contact needs to be made

What if the Protective Order is no longer needed or it needs to be changed? Only a Judge can change a Protective Order

To request a change, one must contact the Clerk of the Court issuing the order to ask for a modification

What if the Petitioner moves?

All Protective Orders can be enforced everywhere in the U.S.

It is often a good idea to register the Protective Order with the Court in the new location. However, it is always important for the petitioner to think about

registration within their overall safety plan—especially if the petitioner relocated for safety reasons. For example, knowing whether or not the “new” protective order would be accessible in a public registry.

How does a Protective Order impact the abuser?

It is up to the abuser to follow the Protective Order in order not to be charged with criminal violations or to be brought back before the Court for non-criminal violations.

It is against Virginia law for a respondent who is the subject of Protective Order to purchase or transport a firearm/gun.

Information for specific populations

Protective Orders for Teens

A teen may request an Emergency Protective Order without their parent/guardian (as may a law enforcement officer).

An adult, acting as what the court terms a “next friend” (usually a parent/guardian) may request a Preliminary or “Permanent” Protective Order on behalf of a teen.”

Teens who are legally emancipated by a Court may also request a Protective Order without a parent/guardian.

Guidance for the Lesbian/Gay/Bisexual/ Transgender/Queer (LGBTQ) Community Under Virginia law, LBGTQ persons who are family/household

members by definition are eligible to request a Family Abuse Protective Order through the Juvenile & Domestic Relations Court.

It is important to know that in order to qualify as a “family/household member,” the victim may need to disclose intimate and private information about the nature of their relationship with the abuser. If this is not something the individual wishes to do, they may request a Protective Order through the General District Court.

Remember, ANY person who has been injured or threatened with injury may petition the General District Court for a Protective Order without regard to the relationship between the victim and the abuser.

Final Thoughts on Protective Orders

Are Protective Orders the best option for everyone?

It is important for advocates to understand Protective Orders and how to get them; however it is equally important for advocates to understand that Protective Orders are not always the best option for all people.

Many survivors may choose not to request a Protective Order for many reasons, including:

• Service of a Protective Order and Court appearances may escalate abuse

• There may be family pressure or cultural taboos about Court intervention in family matters

Survivors are the best judges of their options, and if they don’t seem interested in Protective Orders, it is not appropriate to pressure them.

Remember, Protective Orders are just one tool in the “safety tool box.” Each survivor’s individual situation will necessitate the development of a complete safety plan with many different facets that may or may not include a Protective Order.