Domestic Violence Protective Orders

1. People often accuse one another of acts of domestic violence in the aftermath of failed relationships. The Virginia court system takes accusations of domestic violence, no matter how slight, or how unsupported by evidence, very seriously. A person who accuses their partner of an act of domestic abuse has the right to seek a protective order. These orders can impose severe penalties and heavy obligations upon the estranged partner.

The protective order can order that there be no contact between the former partners. It can include an order barring any contact between the accused and his/her own children. It can include a requirement that the accused pay for separate housing for his/her accuser. A protective order also bars the accused from possessing or purchasing firearms and can require the surrender of the accused's concealed handgun permit.

Protective orders may be extended for up to two years and the accuser need only prove domestic abuse by a preponderance of the evidence. In other words, if a court finds that it is more likely than not that an act of abuse took place, it can issue an protective order.

2. The protective order process begins with an accusation of domestic abuse. The Code of Virginia defines an act of domestic abuse as "any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury and that is committed by a person against such person's family or household member." (Virginia Code 16.1-228)

In order to start the process, the accuser (or petitioner) or a police officer goes before a magistrate and makes a sworn statement that an act of abuse has occurred and that a protective order is necessary to protect the accuser. The magistrate may issue a protective order if they believe that there is probable cause that a act of abuse occurred. The accused (or respondent) has no right to present at the emergency protective order hearing. An emergency protective order can remain in effect for the longer of either three days or the next regular day of Court for the Juvenile and Domestic Relations Court. The accuser can later go before a juvenile court or general district court judge and request either a preliminary or permanent protective order. A preliminary protective order may be entered without any notice to the respondent and may be issued upon the judge finding that there is probable cause that an act of abuse occurred. Like the emergency protective order, the preliminary protective order does not require any notice to the respondent. A preliminary protective order may only last for fifteen days before another hearing is held. The emergency protective order and the preliminary protective order bar firearms possession, may bar contact with children,and may bar a respondent from entry into his own home. The protective orders may also require that the respondent allow the petitioner to have possession of a jointly titled vehicle.

A permanent protective order may be put in place for up to two years. It may order the same things that the preliminary and emergency orders do, but the petitioner has the burden of proving that the act of abuse occurred and the relief is needed by a preponderance of the evidence. In other words, the petitioner need only prove that it is more likely than not that the act occurred and that the order is necessary for their protection.

The respondent is entitled to receive notice and to be present during the final protective order hearing. There are numerous resources that the petitioner for a protective order has that the respondent does not receive. Many localities have "battered women" shelters that provide assistance to female petitioners in these cases. Many communities in Virginia have legal aid societies that provide free legal counsel for females who make accusations of domestic violence. No such organizations exist to help male victims of domestic violence or anyone who is falsely accused of domestic violence in a protective order proceeding (those charged in criminal cases are entitled to court-appointed counsel ONLY in the criminal case). Since the stakes are high in these cases, it is important to have competent legal counsel at all steps of these proceedings.

3. A protective order can require any of the following:

  1. Prohibiting acts of family abuse or criminal offenses that result in injury to person or property;
  2. Prohibiting contact with the accuser by the accused.
  3. Ordering that the accused vacate any residence they are sharing with the accuser.
  4. Ordering the accused not to terminate utilities to any residence that they shared with the accuser.
  5. Granting the accuser temporary possession or use of a motor vehicle owned by the accuser or jointly owned by the accuser and the accused.
  6. Requiring that the accused provide suitable alternative housing for the accuser and, if appropriate, any other family or household member and where appropriate, requiring the accused to pay deposits to connect or restore necessary utility services in the alternative housing provided.
  7. Ordering the accused to participate in treatment, counseling or other programs as the court deems appropriate.
  8. Ordering a provision for temporary custody or visitation of a minor child or children.
  9. If the Court orders custody of a minor child to the accuser, the Court may award temporary child support to the accuser.

4. Protective orders are important parts of any domestic relations dispute. A person involved in a custody dispute can begin their case at a huge advantage if they are able to obtain a protective order against the other parent. Conversely, a person who is the victim of domestic violence can obtain a great deal of additional security from a protective order. A good lawyer can make sure that your side of the case is presented coherently and in a fashion that will be persuasive to the judge. A good lawyer can also warn you about possible pitfalls of negotiated settlements offered by the other party. Finally, if your accuser has legal counsel and you do not, you will be at a great disadvantage in presenting the case in a manner that is allowed within the rules of evidence.