Domestic violence happens. Whether it is between a husband and wife, a couple that has a child in common or one that lives together it exists and is addressed by the laws of Virginia. The courts in Virginia Beach, Chesapeake, Portsmouth, Norfolk, Suffolk and the rest of the 757 area code, whether it is Juvenile & Domestic Relations Court or an appeal to Circuit Court, there are procedures to protect victims of domestic violence. It is unfortunate that these laws exist but, regrettably, they have to because that is the reality of life. In this post, we, as lawyers who handle protective orders and domestic violence issues, try to give you some basic information to assist in understanding the process. This particular post is designed for victims of domestic violence and in need of a protective order in Virginia. We will post later for persons that are accused of domestic violence and/or have a protective order issued against him/her. Again for legal reasons (lawyers always making things complicated), this is not specific legal advice and should not be taken as such; think of it as a primer on protective orders in Virginia to help answer questions or know what questions to ask.
For the victims of domestic violence your first contact should be with law enforcement. Depending on where you live, it may either be your local police department or the sheriff’s office. The reason for the difference is a bit complicated and based upon the Constitution for the Commonwealth of Virginia so we will not go into it in this post. So once law enforcement is involved, if they take out criminal charges for domestic assault and battery under Virginia Code §18.2-57.2 (sorry for the legalese) but odds are that they have requested before the magistrate an Emergency Protective Order. An Emergency Protective Order is a seventy-two (72) hour protective order that is, in essence, a “cooling off” period. Under Virginia Code §19.2-152.8, any Circuit Court judge, General District judge, Juvenile and Domestic Relations Court District Judge, or magistrate may issue an oral or written (usually written) ex parte (meaning with only one side there) protective order to protect the health or safety of any person. When law enforcement requests an emergency protective order on behalf of an alleged victim of domestic violence, the judge or magistrate may issue an Order, in accordance with Virginia Code §19.2-152.8, addressing any of the following:
1. Prohibiting acts of violence, force, or threat or any criminal offenses that result in the injury to person or property.
2. There can be a prohibition of contacts by the person who is the alleged perpetrator with the alleged victim or the alleged victim’s family or household members. There can also be a prohibition against the alleged perpetrator being in the physical process of the alleged victim or that person’s family or household members as the judge or magistrate deems necessary to protect those persons’ safety.
3. Any other conditions that the judge or the magistrate deems necessary to prevent any of the following: (i) any acts of violence, force or threat, (ii) criminal offenses resulting in injury to person or property, or (iii) any communication of any type or any other contact of any kind with the alleged victim.
4. Granting the alleged victim of the possession of any companion animal if that person meets the definition as the owner of the animal.
This Order lasts for seventy-two (72) hours. This can vary slightly based upon Court closures, holidays, or other limited situations. But what is the next step? So the next question is – where do we go from here?
Once an Emergency Protective Order is granted in Virginia, the next step, if the alleged victim wants to extend it, he/she goes to the Court and ask for a Preliminary Protective Order under Virginia Code §16.1-253.1. Since the authors of this post are family law attorneys in Virginia who are focusing this post on domestic violence in Virginia, we will talk about what happens under these circumstances. In this situation, the alleged victim would go by themselves or with an attorney, to the Juvenile and Domestic Relations District Court, typically the intake department, and “petition” for a Preliminary Protective Order under the laws of Virginia. This means filing a Petition for a Protective Order detailing what is being asked of the Court to grant. The petitioner needs to be careful as the Code of Virginia specifically states what the Court can Order. We highly suggest talking with an experience family law or protective order attorney in Virginia to determine what you can or cannot ask and what is reasonable or unreasonable. As an aside, at our office we do offer a free consultation.
The next thing that is being asked of the Petitioner is that he/she fills out an affidavit in support of the Petition for a Protective Order. This may be the most important step and should be approached with the utmost importance. This is what the Court bases its ruling on and could be the basis of questioning later down the road. If you have pictures or other evidence – bring it with you. Do not rely upon it “being on” your cell phone as most courts do not allow cell phones to be brought into Court. Take the time to print the pictures off as it could make all of the difference in your case. It is also important at this stage in the process as you may not be able to speak to or with the judge. Some courts in Virginia grant protective orders based upon the affidavit and/or exhibits. As such, you will want to be clear as to the abuse that allegedly occurred and detailed in any alleged injuries that you sustained or any threat that was levied against you. Some Courts do allow you to speak directly to the judge when requesting a Preliminary Protective Order. This may vary in any of the courts in Virginia and, specifically, in Virginia Beach, Chesapeake, Norfolk or the rest of the 757 based upon a variety of circumstances as well as the preference of the Court. You should always check with an attorney or the intake office. Should your request for a Preliminary Protective Order be granted, you will be served by the deputy with a copy of it and a copy will be served on the alleged abuser or Respondent by law enforcement.
The last part of the process is the trial on the issuance of a permanent Protective Order. This is a Protective Order issued by the Court in Virginia that is in effect for two (2) years or until modified by the Court. At this stage, both parties are present before the judge and a trial occurs. Evidence is presented, witnesses testify and cross-examined, and arguments are made. The Court has the authority to grant this for up to two (2) years and has guidance under the Code of Virginia as to what it can order. This is the stage where having an attorney may be the most important as this is the final hearing. The Court can dictate everything from contact to custody to support to exclusive possession of the home or car. There are more but this is just to illustrate how significant this hearing is to the process.
It is VERY important to remember that no protective order is active until the person that is subject of the Order has been served. Should he/she appear at your home, call the police immediately and inform law enforcement that there is an active protective order in place. They can both arrive and serve the party or, alternately, if the person has already been served they will likely be arrested for violating the terms of the protective order. Also of note is that anyone that is subject to a protective order CANNOT possess or transport any firearm for the duration of the protective order. If that is an issue, make sure the judge and/or law enforcement knows of this issue.
There are other remedies available. Each case is unique and has a unique set of circumstances. Having been practicing law for over twenty (20) years, I can tell you that the circumstances surrounding your request for a Protective Order will determine what the Judge will grant you and presenting those facts clearly and concisely is very important. If your request for a Protective Order is denied, there are still options available. Be aware – if the Petition for the Protective Order is denied, then there is no protective order in place.
The most important thing to remember is that a Protective Order is a piece of paper. While there are consequences for violating it and it affords you certain protections, if you are in a situation where the abuse is recurrent or you are in fear of your safety, the best thing to do is remove yourself from the situation. Also, most Courts have victim advocates to assist. Please talk to them about any services or programs that may be available to you. There are also a host of agencies in each city and programs to stop domestic violence. As the victim, remember that you have done nothing wrong. Take advantage of any program that you feel will make you feel safe and help you heal.
Here at Brian A. Thomasson, P.L.C., we have represented many people seeking protection for abuse and domestic violence. While we may not understand exactly what you are going through, we have seen the ravages of domestic violence and we are here to help you through it. Our staff is kind, compassionate, caring and honest about what you can expect.
We hope that this answered any questions that you may have or at least give you a starting point for what questions to ask. If you would like to discuss this further, feel free to give us a call at 757-454-2110 or use the Contact Form at www.stepuptobat.com/consult to set up a free consultation with a lawyer about your situation.
For more information, feel free to visit our exclusive family law site for information on divorce, separation, child custody, child visitation, spousal support and child support at BrianThomasson.com.
/s/ Brian
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