Protective Order

Under Virginia laws, a protective order (also known as a restraining order in other states) is a legitimate document issued in court by a magistrate or judge to preserve the safety and health of an alleged victim of a threat, force, or violence, that results in harm or places the person in apprehension of bodily injury, sexual assault, or death. In Virginia, protective orders are mainly governed by Virginia Codes §16.1-228, §19.2-152.10 and the sections that follow. Specifically, a protective order is issued under Virginia Code § 19.2-152.10 and requires a specified individual – normally one accused of stalking or domestic violence – to maintain a definite minimum distance from the victim over a specified period of time.

As a survivor of threats, stalking, or violence, a protective order provides you with an option to protect yourself from more abuse. Though the order may not stop the abuser from hurting or stalking you, it permits you to call on a law enforcement officer for the assailant to be arrested for violating the order.

You have a right to request a protective order if you are being threatened or physically attacked by a former or current spouse, a biological grand or step-parent, a biological grand or stepchild, or by a sibling irrespective of whether you live together or not. You can also get an order to protect you from threats or physical abuse by either your parents-in-law, daughter or son-in-law or sister/ brother-in-law if you live with the person. Moreover, a protective order can be effected against anybody with whom you have a child regardless of whether you have ever cohabited or ever been married, and anyone you live or have lived within an intimate relationship in the last 12 months, or their child. If you demonstrate the need, it is also possible to have a protective order issued against another person who has threatened, attacked, or stalked you.

Virginia offers three types of protective orders to protect you or others in your home or family from violence.

An Emergency Protective Order (EPO) is a temporary protection order given by a magistrate or judge when courts are closed or immediately after your abuser is arrested. Virginia Code Sections 19.2-152.8 and 16.1-253.4 specify the situations in which an emergency protective order is justifiable and also restrict the duration during which the order is in place. Under the codes, you will receive an emergency protection order if you testify under oath that you were harmed or threatened by the accused and the court determines that there is a potential risk of subsequent harm or threats to you. You will also be issued with an emergency protective order if the judge realizes that the respondent has been accused of “any criminal offense” involving threats or violence.

Regardless of the circumstances under which it was issued, an emergency protective order expires either at the end of the third day (72 hours) after issuance or when the court resumes sessions, whichever comes later. The date and time of expiry are indicated on the order. However, if you require protection for longer, you need to petition the court to obtain a Preliminary Protective Order.

A Preliminary Protective Order (PPO) is a temporary protective order stipulated in Sections 19.2-152.9 and 16.1-253.1 of the Virginia Code. To obtain a PPO, you must file a petition in court. Once the PPO is issued, its validity commences when the respondent is served in person. The key difference between an EPO and a PPO is that for you to request a PPO, Virginia Code Sections 19.2-152.9 and 16.1-253.1 require you to have suffered threats or violence within a considerable time period. The PPO is temporary and lasts for 15 days within which a comprehensive hearing regarding a permanent protective order must be held. Ordinarily, the validity of a PPO will be prolonged to cover the period between the entry of a preliminary protective order and issuance of a permanent protective order, but not exceeding six months. 

A Permanent Protective Order (PO) is issued under the Code of Virginia Sections 19.2-152.10 and 16.1-279.1. What differentiates a permanent protective order from an emergency or a preliminary protective order is the length of time it lasts. A permanent protective order can remain valid for a maximum of two years with a possibility of a further two-year extension after a complete hearing before the court. In addition, a permanent protective order differs from an emergency or a preliminary protective order in relation to the procedures and opportunities provided to the respondent.  A judge can issue an emergency or preliminary protective orders “ex parte” meaning that the determination of whether to issue the temporary orders or not can be made in the absence of the respondent. On the contrary, prior to the entry of a permanent protective order, the respondent should receive a notice of the hearing and be afforded an opportunity to challenge the petition. If after notification the respondent decides not to appear, the judge will make a determination based on your evidence alone.

A permanent protective order is issued under slightly different clear guidelines. If you file a petition in a Juvenile & Domestic Relations District (J&DR) court, the judge must establish whether family abuse occurred as specifically defined in the Code of Virginia. “Family abuse” is proved by the presence of any act comprising of a threat, force or violence that causes bodily injury by a member of your family or household. If you have been placed in reasonable fear of harm or an imminent crime, the court may consider it a form of family abuse. Proof of either element justifies the need for a permanent protective order.

In a General District Court (GDC), the judge uses different guidelines where either of two elements must be proven before issuing a permanent protective order. The judge must conclude that the respondent was earlier charged with or convicted of a criminal offense relating to violence or threats. Alternatively, premised on your evidence, the judge can make a conclusion that you were subjected to threats or violence within an acceptable time period.

To obtain a protective order, you will be required to file a petition in the correct court. Filing a petition in an inappropriate court can cause your case to be dismissed or redirected to a separate court which may delay the process. If the threats or injuries were caused by a member of the family or household as defined in the Code of Virginia, you will file the case in a Juvenile & Domestic Relations District Court. If the injuries or threats are made by somebody who does not fit the description of a “family or household member” as interpreted by the Code of Virginia, you will file a petition at the General District Court.

You can file the petition with the assistance of your attorney, the area office for legal services, or pro se (on your own behalf). The request can be by affidavit or in person. When filing for a PPO, you need to provide the respondent’s identifying information such as the name and address, and a detailed account of the incident that prompted you to request for a protective order. At the hearing, the judge will use your sworn statement to determine whether to grant or deny the PPO.  If allowed, the order becomes effective for 15 days pending the full hearing. If you do not go to the full hearing, the PPO expires on the day of the hearing. Even if the other person does not attend the hearing, you should proceed to request for a permanent protective order.

Whether the PPO is granted or denied, you will automatically have a scheduled hearing for a full protective order within 15 days after requesting a PPO. The date of the hearing and time are indicated on the PPO. A copy of the order will be served to the respondent by the police to notify the respondent of the scheduled hearing. At the full hearing, you both get the opportunity to present your evidence. You should have copies of the Emergency Protective Order, and the petition or warrant claiming abuse, whichever was provided. After the full hearing, the judge will determine whether a two-year protective order is necessary.

A protective order only goes into effect after the respondent has been served in person. If the respondent is in Virginia, he/she will be served at no cost by the sheriff’s department. You will need to furnish the court with the respondent’s correct work and home address, telephone number and, if possible, a photograph. If the respondent is outside of Virginia, or there is limited time for the respondent to plan to attend the hearing, or you wish to have the person served immediately, you may engage a private process server at a fee. The person can be served either at work or at home but if they are not personally served, the order cannot take effect. You can contact the law enforcement officer to know if the person has been served.

If you need to alter a section of the order, you will fill out forms and file them in court. At the same time, if you will need to occasionally contact the other person, you must inform the judge at the hearing. The protective order must always be kept with you and if violated, you may call the police, show them the order and have the person arrested for disobeying the order.

A protective order may include a variety of provisions. A no-contact provision prohibits the offender from directly or indirectly contacting you other than as permitted by the court. This includes emailing, texting, calling, disturbing, stalking, hitting, or attacking you. However, a provision of peaceful contact can be included where necessary. This will permit the abuser to communicate with you peacefully on restricted grounds. In addition, the court can grant you temporary custody of your children under special circumstances. However, judges often try to avoid it because there are definite legal procedures that cover child custody. The court makes a determination based on the specific circumstances of the case. 

A provision to stay away will order the aggressor to maintain a specified minimum distance away from you, your home, car, school, and job. The distance may vary by judge or gravity of the case but it is often between 100 yards to 300 feet. Closely related to a stay-away order is a moving out provision that requires the abuser to move out of your shared home, regardless of whether the abuser owns it or not. The order may also include a requirement for the offender to relinquish any firearms in their possession and/ or forbid the offender from procuring a firearm.

Additionally, the offender may be ordered to receive professional counseling or attend therapy sessions such as anger management or batterer's intervention.

Protection orders can also apply to your children, current intimate partner, roommates, and other members of the family. This means that although the harm was directed to you, the same stay away and no contact rules are applicable to the other specified people. Additionally, federal law requires that protective orders from any state are enforced in every single US state and territory. Consequently, if the abuser violates the order in any way outside the state of issue, you should contact the authorities.

If you are named as a respondent in a protective order, the sheriff’s department will serve you personally with a copy of the order. You must strictly comply with the order to avoid any actions that may result in criminal proceedings and penalties against you. The hearing date and time will be indicated on the order. You or your attorney will have an opportunity to respond to the accusations and request the judge to change or dismiss the order.

A protective order is an absolute court order prohibiting you from doing particular things or contacting specified individuals. The Code of Virginia Section 18.2-60.4 details the penalties for violating any type of a protective order. If you violate the order in any way, whether major or minor, you could face separate and distinct criminal charges. You could also be convicted of the crime which will escalate the consequences.

In Virginia, violating a protective order is typically classified as a Class 1 misdemeanor, and may result in a maximum jail time of 12 months and fines of not more than $2,500.  For a second violation within five years of the first one, with either offense being an act of violence or a threat, you will serve a mandatory 60-day jail term. If you are charged with any subsequent offenses within 20 years, you may serve a mandatory six-month minimum jail term.

In specific situations, violating a protective order may be considered a Class 6 felony, and if convicted, you will serve a jail or prison term of between one to five years and fines not exceeding $2,500. Violating a protective order may be charged as a felony if you stalk the protected person, cause grave bodily injury on a protected person through assault and battery, or you violate a protective order while intentionally carrying any deadly weapon or a firearm.

If you have been named a respondent in a protective order, it is in your best interest to have the order lifted. This is because a protective order against you can affect your rights and interfere with your daily life. It is a requirement for you to go to court if either you or the victim want to nullify the protective order. You must be cautious because even with consent from both parties, contact with the victim is a violation. Furthermore, attending court together and you do not request for dissolution of the protective order may constitute a violation. If found guilty, you will suffer the legal consequences.

If you request for the order to be lifted, you must provide proof of no outstanding matters in the courts and of good conduct. This includes documents relating to work status and rehabilitation, statements by other relevant individuals, probation and other law enforcement records, and where applicable, evidence of child visitation and custody rights. Generally, the judge will analyze the facts and make a decision whether you qualify for a status change. The ruling to revoke a protective order depends on whether it is a preliminary or full protective order.

Getting a protective order against somebody who has threatened or caused you injuries can be physically and emotionally draining. If you live in Fairfax or Northern Virginia, call Virginia Criminal Attorney at 703-718-5533. We have the competence to have a Protective Order issued or lifted to protect you.