Protective Orders
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Protective Orders

| Dec 11, 2020 | Family Law |

An unfortunate aspect of many family law matters is the need for the court’s issuance of a protective order. Pursuant to Virginia Code §16.1-279.1 “the court may issue a protective order to protect the health and safety of the petitioner and family or household members of the Petitioner.”

There are three stages to a protective order.

First, a petitioner will fill out an affidavit or testify for an Emergency Protective Order where they will swear under oath to a statement of facts explaining to a judge or magistrate what has occurred that has placed them in fear for their safety by certain acts of family abuse. Family abuse is defined by Virginia Code §16.1-228 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. So long as the judge or magistrate finds that an assault and battery has been committed upon a family member (Virginia Code §18.2-57.2) and finds that there is a probable chance of further acts of family abuse against the Petitioner or his/her household members or finds that reasonable grounds exist to believe that the respondent has committed acts of family abuse and there are probable dangers of further such offenses an Emergency Protective Order shall be issued. These orders are issued ex parte, meaning that the Respondent does not need notice of the filing and issuance of the protective order and can be issued on any day, not just days that the court is open. Emergency Protective Orders can only be in place for three (3) days.

Upon the expiration of an Emergency Protective Order, the Petitioner can, if they so choose, petition the court for a Preliminary Protective Order. Again, the Petitioner must testify or swear under oath on an affidavit in front of a judge or magistrate to the facts alleging the family abuse. If the judge or magistrate again finds good cause for the issuance of a protective order, they shall enter a Preliminary Protective Order for no more than fifteen (15) days, unless the court is closed or other limited circumstances that prevent a Final Protective Order hearing from being held.

Finally, a petitioner can ask the court to issue a Final Protective Order. During this hearing, the respondent will have the opportunity to cross-examine the petitioner and present their own evidence regarding the circumstances surrounding the alleged family abuse. A Final Protective Order can be issued for a specified period of time up to two (2) years.

Upon the issuance of any of these protective orders the court can order several different provisions that the parties must abide by. Listed below are the most common provisions sought after by the petitioner and ordered by the Judge or Magistrate who issues the Order, outlined in Virginia Code §16.1-279.1:

    1.  Prohibiting acts of family abuse or criminal offenses that results in injury to person or property
    2. Prohibiting such contacts by the respondent with the petitioner or family or household members of the petitioner
    3. Granting petitioner possession of the residence to the exclusion of the respondent
    4. Ordering the respondent to maintain any necessary utilities to the residence that the petitioner was granted possession of
    5. Granting petitioner temporary possession or use of a motor vehicle
    6. Granting the petitioner possession of any companion animal
    7. Any other relief necessary for the protection of the petitioner and their family or household members of the petitioner, including a provision for temporary custody or visitation of a minor child. Though if you ask the court to either include your minor children on the Protective Order or include provisions regarding temporary custody or visitation a Guardian ad litem will most likely be appointed by the court.

As you can see, seeking a protective order can be a vital step in ensuring a petitioner’s safety, as well as the safety of their family and household members. The language ordered in a protective order can be drafted to best suit the needs of a particular case. For example, a petitioner can ask that the parties be allowed to have peaceful contact to discuss visitation arrangements for their minor children or a court can order that the parties are allowed to have necessary contact to exchange their minor children at a specified location. Therefore, it can be very helpful to a petitioner or respondent to have the assistance of an attorney at the hearing to help them navigate the legal system and a myriad of provisions that can be ordered in a protective order.

Another important factor to consider is if a Protective Order is entered or there is currently a protective order in place between you and another party, either party may at any time file a written motion with the court to modify or dissolve the protective order language.

Whether you are the petitioning the court for a protective order or are defending yourself against one, the skilled attorneys at Strentz, Greene & Coleman, PLC can assist you with your legal needs. Contact us at (540) 479-1511 to set up an initial consultation and visit our website at virginiafamilylawattorney.com.

Caroline E. Morris, Associate Attorney