Protective Order

Understanding Protective Orders in Virginia

A protective order is a civil court order intended to protect an individual from damage, harassment, abuse, or threats. Although often referred to as a restraining order, the legal and common term in the Commonwealth is a protective order. When a person petitions for a protective order against you, they ask the court to restrict your actions to protect them.

Essentially, a protection order aims to safeguard a petitioner, the person seeking the order, from you, the respondent, by restricting your actions in particular ways. If you face a protective order, it can be overwhelming. This can affect your life, relationships, and activities very quickly.

Protective order laws include:

• Title 16.1, which deals with juveniles and domestic relations

• Title 19.2, which deals with criminal procedure

These laws explain protective orders and the situations when the court issues them.

Virginia law distinguishes between protective orders sought in family abuse cases, as defined in Va. Code § 16.1-228. Protective orders are sought due to acts of violence, force, or threat of violence between persons who do not have a qualifying family or household relationship, as defined in Va. Code § 19.2-152.7:1.

Types of Protective Orders

Under Virginia law, there are three types of protective orders. Each serves a different purpose and applies at various periods, should someone need protection from you. Knowing the difference is important because they each have different processes and durations of restrictions.

The court where the matter is adjudicated depends on your relationship with the petitioner. Family abuse matters usually take place in one of the Juvenile and Domestic Relations District Courts. Non-family member matters typically take place in the General District Court.

The types of protective orders are:

Emergency Protective Order (EPO) (§ 19.2-152.8, § 16.1-253.4)

The first stage is often an emergency protective order (EPO). A magistrate or judge generally issues this order upon request by a law enforcement officer having responded to an incident or a petitioner presenting evidence of imminent threat or harm. A distinctive feature of the EPO is that it can be granted ex parte, that is, in the absence and without notice to you, based on immediate and imminent danger to the life and health of the applicant.

An EPO requires you to comply immediately, namely, to have no contact with the petitioner and to stay away from them. An EPO is designed for protection for a short time and usually lasts for 72 hours or up to 5:00 pm on the next business day the court is open, whichever time frame is longer. Virginia Code sections regulating family abuse and other matters govern these issues.

Preliminary Protective Order (PPO) (§ 16.1-253.1, § 19.2-152.9)

The preliminary protective order (PPO) is filed after or sometimes simultaneously with the petition. The judge may also grant a PPO ex parte if the sworn petition and testimony show good cause to believe the petitioner has reasonable fear of death, sexual assault, or bodily injury. If issued in your absence, you will be served and immediately bound by the terms thereof.

A preliminary protective order is essential for legally protecting you from abuse from when the petitioner files a petition to the full court hearing. A PPO lasts until the full hearing, which must be held within 15 days unless extended by agreement or for good cause. The PPO request will have a hearing, and typically, you have to be legally served with notice of the date for the next full hearing for that proceeding to take place.

Protective Order (Full or Permanent) (Virginia Code § 19.2-152.10, Virginia Code § 16.1-279.1)

The final and most long-lasting type is a protective order, also known as a full or permanent protective order. A judge can only issue this order after a full court hearing at which both you and the petitioner have the fundamental legal right to be present, present evidence, call and question witnesses, and be heard by the court.

At the full hearing, the petitioner has the burden of proving the allegations with a preponderance of evidence or by showing that the harmful acts were more likely than not to have occurred.

When a full protective order is issued against you, if the court determines that this standard has been met, the restrictions in the order, like remaining away or no contact, will remain in effect for a set period determined by the judge (not more than two years from the date the order is issued).

Who Can File for a Protective Order?

Whether someone can file a protective order against you depends primarily on who they are to you and what harm they allege you have caused. There are two main ways to petition, each with its own requirements, namely:

Family Abuse Protective Order (FAPO)

The first route is a family abuse protective order (FAPO). You and the petitioner must meet the legal definition of “family or household members.” This definition in the Code of Virginia includes spouses, former spouses, and parents.

Also included are a spouse’s or former spouse’s children. This category also applies to people who share a child, current or former intimate partners who have cohabited in the last year, siblings, half-siblings, step-siblings, grandparents, and grandchildren.

The reason for the request for a FAPO against you is based on an “act of family abuse.” Virginia Code § 16.1-228 defines this as any act of violence, force, or threat that a member of one family or household commits against another family or household member that causes bodily harm or instills reasonable fear of death, sexual assault, or physical harm.

General Protective Order Eligibility

The second type of protective order is the general protective order. It is applicable when the relationship between you and the petitioner is not strictly a family or household member. The orders are based on acts of violence, force, or threat that cause fear of death, sexual assault, or bodily injury as defined by Virginia Code § 19.2-152.7:1. These include assault, battery, stalking, or credible threats against a neighbor, friend, co-worker, or stranger.

Whatever the nature of your case, the petitioner must give the court factual allegations that, if proven true, would establish that the wrongful acts happened and show necessary grounds for the court to issue a protective order against you to protect against future harm.

The Process of Seeking and Serving a Protective Order in Virginia Courts

Although the petitioner initiates the process for a protective order, it is crucial for you, as the respondent, to be aware of how the process works and the notifications and hearing you must attend.

Initiating the Process and Immediate Orders

The petitioner fills in and files a Petition for Protective Order with the clerk’s office of the appropriate court. For example, the petitioner will go to the Juvenile and Domestic Relations District Court for family abuse cases. There is typically no filing fee for the petitioner.

If the petitioner needs immediate protection, they may request an EPO from a magistrate or judge or a PPO from a judge. On the other hand, the petitioner can also request the judge for a preliminary protective order (PPO).

If you are served with one of these orders, it is immediately binding upon you.

Receiving Official Notification

When the petition is filed and a final EPO or PPO is issued, you must be legally notified of the full court hearing and the date and time. The local sheriff's office usually does the mandatory notification known as service of process. The sheriff will try to bring you the petition for a protective order, any temporary order issued, and the notice for the full hearing in person.

The court cannot proceed to a full hearing unless you have been legally served or have formally waived service by appearing in the court.

Preparing for Your Full Court Hearing

The full hearing is your best chance to give your side of the story and dispute the petitioner’s claims before a judge. Preparation is key to presenting a case effectively. If you have evidence, whether it supports your defense, contradicts the petitioner’s version, or adds context to the events, you should gather it. This can include text messages, emails, photos, videos, witnesses' statements, or other appropriate evidence.

Attending and Participating in the Full Hearing

You must ensure that you attend the whole court hearing on the set date and time. You and the petitioner will be presented with the chance to bring evidence and give the judge sworn testimony. The petitioner will present their case first. After that, you make your case and the evidence or witnesses you have. You can also cross-examine the petitioner and any witnesses they present.

The judge will weigh the evidence and testimony presented by both sides before deciding whether to grant a complete protective order against you.

The Outcome

If you are served with a full protective order by a judge, you will receive a copy of the order. The information order will be placed into the Virginia Criminal Information Network (VCIN). Law enforcement of the terms of this order is statewide. Being fully aware of the order’s conditions and restrictions is critical, and complying with them will be equally important. If the judge does not grant a full protective order, then the temporary EPO or PPO restrictions will end.

The Protections That a Protective Order Provides

If a protective order is issued against you, it will impose some limits on your behavior to protect the petitioner and any other people in the order, like children. The judge will determine the exact terms depending on the facts of the case, but often, you will have the following restrictions placed on you:

• Prohibition of contact —You will be ordered to stop contacting the petitioner. This means not:

1. Directly contacting the person (in person, by phone, text, or email)

2. Indirectly contacting someone else to get in contact with the protected person for you

3. Electronically contacting the person through social media, online

• Prohibition of further acts of abuse, violence, or threats — You must not commit another act of family abuse (in FAPOs) or an act of violence, force, or threat against the petitioner or other protected person.

• Stay-away orders — These orders could require you to avoid being within a certain distance from a property that the petitioner or other protected people frequently visit. This usually encompasses the home, place of employment, school, and the daycares or children mentioned in the order. The distance varies but is often 100 or 500 feet. You cannot go to these locations.

• Exclusive possession of residence — In family violence cases, the judge can make a temporary order that asks you to leave the ordinary residence and gives the petitioner exclusive possession. When a temporary order in a preliminary protective order is issued, you must move out right away.

• Temporary child custody and visitation orders — Temporary orders from the court about custody and visitation can happen if children are involved in an FAPO case. The orders prioritize the protection of the children and the non-offending parent. When you visit your child, you may be denied access to the children, or your visitation may be supervised or structured to avoid contact. If the court believes that you committed family abuse, then the law creates a presumption against awarding you custody or visitation per Va. Code § 20-124.3(G).

• Prohibition on possessing firearms — Under Va Code § 18.2-308.1:4, buying, having, or moving any gun while subjecting it to a protective order (other than an ex parte EPO) is a crime. This prohibition also exists under federal law. It will usually require you to give up any gun you have.

• Additional relief — The court could order any other relief it believes fit, for example, requiring you to go to counseling or anger management classes, or giving the applicant temporary possession of a pet. The order could also require you to pay certain court costs.

You are legally bound by the specific terms stated in the protective order. Any violation can lead to serious criminal charges.

Violation of a Protective Order in Virginia (Va. Code § 18.2-60.4)

If you violate the terms of a protective order, you commit a crime and will face serious repercussions. Va. Code § 18.2-60.4 provides the punishment for violating protective orders.

If a person violates the protective order for the first time, it is deemed a Class 1 misdemeanor. This is the most serious type of misdemeanor and carries potential penalties of:

• Up to twelve months in jail

• A fine of up to $2,500

The penalties escalate for subsequent offenses:

• A second conviction for an offense of violating a protective order is also generally a Class 1 misdemeanor. However, the court could impose a longer jail sentence on you within the statute's limits.

• If you commit an act of violence or you have previously been convicted for violating a protective order and do so again, it will be a Class 6 felony. A Class 6 felony comes with a penalty of:

1. Imprisonment in prison for a term of up to five years

2. A fine of up to $2,500

If the police have reason to believe that you have violated a protective order, they can arrest you right away. This often occurs if the petitioner finds you near them in violation of the stay-away order, or there is evidence of your contact that is prohibited.

Not only will you face the criminal penalties accompanying a conviction for violating a protective order, but it can also have several other negative consequences. A conviction could:

• Impact your ability to secure bail in future arrests

• Seriously affect your immigration status if you are a non-citizen

• Make it harder to secure or keep certain types of employment or housing

• Further affect your firearm rights, especially with a felony conviction

How to Respond to or Defend Against a Protective Order Petition

If you received a protective order petition, it is important to understand your rights and options. If you ignore the petition, you will receive the worst result possible. This likely means the protective order will be granted against you by default. This comes with potentially damaging long-term consequences to your rights, living situation, and relationship with children.

Your most valuable right is attending the court hearing on the designated date and time and sharing your side of the story. The petition contains allegations made against you. These allegations are only allegations made by the petitioner. The court will not take any action on this. However, it will refer to this when both parties submit all the evidence and all other issues.

Filing your written response with the court clerk and serving it on the petitioner can outline your defense.

To prepare your defense, you should:

• Gather evidence that supports your version of events, refutes the allegations in the petition, or is otherwise relevant. Text messages, emails, photos, videos, or witness statements from people who saw things or have information about the events or the relationship can be included.

• Identify anyone who saw the alleged events or can talk about your dealings with the petitioner. It could prove crucial in contesting the petitioner's claim. Be sure they are willing to come to court.

• You must be ready to question the petitioner and the witnesses they brought to court. However, an attorney will do this, so work with them. The aim will be to identify and expose the inconsistencies, biases, and weaknesses in their testimonies and information in a respectful manner.

• Take time to consider what you will tell the judge. Be clear, concise, and truthful.

The long-term consequences can be severe if a protective order is granted against you. If you are not careful, you will lose your gun rights under state and federal laws. These charges can impact your reputation, future employment, and housing opportunities. Moreover, if you share children with the petitioner in this case, a protective order, especially a family abuse protective order, establishes a presumption against you receiving custody or visitation in a future family law proceeding, like a divorce and custody case, making it much harder for you to see your kids.

It is also imperative to recognize how serious false accusations can be. If the allegations against you are false and are leveled with malicious intent, you may have the option of seeking legal remedies. However, doing so is not straightforward, requiring careful consideration and substantial evidence.

Since protective orders are serious and could change your life, a lawyer is best. A knowledgeable attorney can assist you in understanding the allegations against you, assembling your defense, obtaining the necessary evidence, going through the court process, and protecting your rights.

How Protective Orders Affect Other Legal Matters

Having a protective order against you is not an isolated legal event. It will influence many other legal matters, especially family law, immigration, and employment. It will affect the following:

Child Custody and Visitation

A family abuse protective order can considerably affect the custody and visitation arrangements regarding children that you have with the petitioner.

Virginia Code § 20-124.3 states that if a parent has committed family abuse, then it is not in the best interest of the child to give them custody or visitation rights. This means it is now your responsibility to prove to the court that, despite the finding of abuse, your custody or visitation is in the child’s best interest.

If you have a protective order, it can affect your visitation time with the children or prevent you from seeing them altogether.

Immigration

If you are not a U.S. citizen, being the subject of a protective order, especially one premised on findings of abuse or violence, could have serious negative consequences for your immigration status, including visa application, green card status, and possibly deportation proceedings.

Employment and Housing

Having a protective order against you does not technically prohibit you from securing a job. However, it can make it challenging to find work in specific industries, including those requiring background checks or involving vulnerable populations such as healthcare and childcare.

An employer could view a protective order against a candidate as a red flag. Just like other landlords, some may consider your history of protective orders.

Gun Rights

As noted earlier, a protective order directly impacts your ability to possess firearms under Va. Code § 18.2-308.922. Illegal possession of a gun is a Class 6 felony under § 18.2-308.2. You will be subject to criminal penalties if you do this.

Find a Criminal Defense Attorney Near Me

If you are facing a protective order, you are up against a serious legal issue that could have serious consequences for your life and your freedom. Depending on their type, eligibility requirements, and the alleged conduct in each case, orders can be immediate or long-lasting. You can improve the chances of a successful outcome by understanding the subtleties involved in the protection order process.

If a restraining order is filed against you, time is of the essence. Seek experienced legal counsel immediately. Contact Virginia Criminal Attorney today at 703-718-5533 if you are in Northern Virginia or the Fairfax area.