Courts have the authority to issue Protective Orders that require a person to stop certain behavior, such as contacting or abusing another individual. Most Protective Orders are issued in connection with domestic violence, harassment, stalking, and sexual assault.
Domestic violence also known as family violence is a pattern of behavior and a method of control which results in physical injury or places one in reasonable apprehension of serious bodily injury and which is committed by a person against such person’s family or household member.
If you are the subject of a Protective Order, this is a very serious matter that requires your immediate attention. If a person (known in the case as “the petitioner”) asks a court to issue a restraining order against you because of alleged domestic violence or other domestic conflict, you must be notified of the request and given an opportunity to have a full trial to defend yourself. You also have the right to be represented by an attorney. Unlike in a criminal case where a person charged with a crime may be entitled to receive a free counsel or a court-appointed attorney, in a Protective Order case, you are able to hire your own attorney to assist you.
Do not ignore a Protective Order. Contact an attorney at Leary Law immediately to obtain information about your rights and options, consult with a lawyer, and participate in the court process. Once a Protective Order is entered, you can be charged with a crime if the protected party accuses you of violating the order. If a permanent order is issued, you will be prohibited from possessing a firearm while the order is in effect, and the order will show up on background checks.
What are Protective Orders?
A Protective Order is a document signed by a judge or magistrate that tells the person who is accused of hurting or threatening another individual that they must stop the behavior. Protective Orders are designed to protect the health and safety of a person who is the victim of any act involving violence, force or threat that results in bodily injury or places that person in fear of death, sexual assault or bodily injury. Protective Orders are intended to protect people from abuse.
In Virginia, there are 3 kinds of Protective Orders that can protect you and others in your family or home:
- Emergency Protective Order – often issued at the time a person is arrested for domestic violence, an Emergency Protective Order is an immediate no contact order issued by a magistrate. An Emergency Protective Order lasts for approximately 72 hours unless this time period begins to run on a weekend in which case it expires at the end of the third day following issuance or the next day court is in session, whichever is later.
- Preliminary Protective Order – issued as a result of a victim of family abuse going to a court and providing information regarding the family abuse in order to obtain an order of protection. In comparison, a preliminary protective order will last 15 days or until a full hearing by a judge.
- Protective Order – issued following a hearing with a judge in which evidence in presented by the victim of family abuse and the person who is causing harm. A full protective order may be imposed for a period of up to 2 years. The order may be terminated early by agreement of the parties and may also be extended when necessary.
Who can a Family Abuse Protective Order be issued for?
A family abuse Protective Order can be filed against you by any of the following individuals:
- Someone you have a child with, even if you do not live with the other parent now;
- Your husband or wife, even if you do not live together now;
- Your former husband or wife, even if you do not live together now;
- Your parents or stepparents, even if you do not live with them now;
- Your brothers, sisters, step-brothers, step-sisters, half-brothers, half-sisters, even if they do not live with you now;
- Your grandparents and grandchildren, even if they do not live with you now;
- Your children and stepchildren, even if they do not live with you now;
- Your spouse’s family (mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law), but only if they live with you now;
- A boyfriend or girlfriend who lived with you within the past 12 months, even if you do not live together now;
- Any children of that boyfriend or girlfriend who lived with you within the past 12 months, as long as those children live with you now.
I was arrested for Domestic Assault, can I go home?
If you are placed under arrest, you are likely stressed and overwhelmed by the experience of being brought before a magistrate and taken to the local jail. When you are released you will be given any relevant paperwork about your case. Read the paperwork carefully. In almost every domestic violence case, a magistrate will issue an Emergency Protective Order which prevents you from going home for at least 72 hours. If you attempt to go home or to contact the family member or significant other who has accused you of a crime, you could receive another criminal charge referred to as a Violation of a Protective Order. A Violation of a Protective Order is a serious charge.
How will I know when the Emergency Protective Order ends?
When you receive a copy of the Emergency Protective Order, you should look on the order for the date and time it expires.
The Emergency Protective Order expired but I was served with new papers?
Your family member or significant other has the ability to go to the local juvenile and domestic relations district court in order to file a petition to request that the court provide them with a Preliminary Protective Order. You will not be notified of this process and will not have any opportunity to tell your side of the story to the judge. Instead, Virginia law allows your significant other or family member to present their evidence without your participation. If the judge believes an act of family abuse has occurred based upon those accusations, a Preliminary Protective Order will be issued for a period of at least 15 days. At that point, the court will cause a copy of the Preliminary Protective Order to be served on you by a Sheriff delivering a copy to you.
If you are served with a Preliminary Protective Order, you should contact an attorney at Leary Law immediately to discuss your rights and options. Often Protective Orders are issued as a result of a criminal charge brought against you. However, that is not always the case. Do not disregard paperwork that looks similar to that you may have already received.
How does someone get a Preliminary Protective Order?
In order to request a Preliminary Protective Order and have the opportunity to ask a court for a full 2 year Protective Order, it is necessary for the individual making the request to go in person to a local juvenile and domestic relations district court. Once at court, the individual, referred to as the Petitioner in the case, will be asked to fill out paperwork and provide information on the allegations they are making against you that accuse you of family abuse. After completing paperwork, the Petition will go before a judge to tell the judge why they are asking for a protective order. If the judge feels based upon only the statements of your significant other or family member that an act of family abuse may have occurred, the judge will issue a Preliminary Protective Order.
How long does a Preliminary Protective Order last?
If the judge grants a request for a Preliminary Protective Order, the Order will be valid for at least 15 days or until a trial to determine whether a full 2 year Protective Order should be issued. The Order will also include a date for the court to have a full hearing, or in other words, a trial relating to the request. If a trial takes place within that first 15 day period, then the Preliminary Order can be extended. If the case is continued, the Court will issue a new Preliminary Protective Order through the later court date.
Protective Order trials are scheduled very quickly after someone’s request is granted. If you have been accused of family abuse, you may have witnesses to subpoena for the hearing and evidence to gather to present to the judge. However, your first notice of the request for the Protective Order will occur when papers are delivered to you after the initial request is made. At that point, the clock is ticking for you to quickly prepare and respond. It is critical that you contact an attorney immediately in order to know your rights, begin preparing for court and understand how to defend yourself. It may be necessary to seek a continuance of the trial date in order to obtain necessary witnesses and evidence to present to the court. Whether and if to proceed on the first schedule date must be discussed with your attorney.
What can the Court do with a Protective Order?
In addition to ordering a person not to commit further acts of family abuse, courts also have the power to do the following with a Protective Order
- Order you to leave your home
- Granting your significant other or family member possession of your home
- Granting your significant other or family member possession of any jointly owned vehicles
- Granting your significant other or family member temporary custody of your children
- Ordering you to pay temporary child support if you share children
- Granting your significant other or family member possession of a family pet
- Ordering you to participate in mental health or substance abuse evaluation, counseling and treatment
Contact Leary Law to understand how a Protective Order can help you and what you should be prepared to ask for from the court.
I’ve been served with a Protective Order, what do I do?
First, obey the Protective Order. Follow all the requirements and directions of the order. If you are not permitted to have contact with your significant other or family member, do not contact them. Do not email, text, message or go in person to see or talk to that person.
Second, call an attorney at Leary Law immediately. You must understand your rights and begin to prepare to defend yourself. Our firm has substantial experience defending individuals who are the subject of protective orders.
What evidence must I bring to court to defend myself against a Protective Order?
At court for the full hearing or trial for a 2 year Protective Order, you must present any evidence or witnesses which you want the court to consider. Evidence can include photographs, videos text messages or emails. Witnesses can include yourself and anyone else with first-hand knowledge the accusations or history with your significant other or family member.
When you have never been to court before, a trial can seem very overwhelming. Having capable legal counsel to assist you and help you prepare and present your case insures that you have guidance from someone who goes to court regularly and is familiar not only with the legal requirements of a protective order but also the judges who will be deciding your case. The Protective Order Attorneys at Leary Law have nearly 20 years of experience practicing before courts in Virginia defending individuals from Protective Orders. Call our firm today to request a meeting to discuss your case.
What if I do not go to the full hearing, or the trial, for the Protective Order?
If you do not appear on the court date set for the Protective Order and you were served with a Protective Order, you could risk having the court issue a full 2 year protective order with any requested protections available.
What if I believe the other person is not coming to the Protective Order hearing?
Even if you know that your significant other or family member is not going to come to court, you should still go.
When does the Protective Order take effect?
The court will sign the Protective Order paperwork in the courtroom. However, it is very important to understand that the Protective Order becomes effective when you are “personally served” with a copy of the order. In other words, you must have notice of the court’s order and receive a copy of the document. Service occurs when a law enforcement officer or court official provides the Protective Order to the person from whom you want protection.
What if I do not obey the order?
Once the Court issues an Emergency Protective Order, a Preliminary Protective Order or a full Protective Order, you are under specific instructions as to how you can or cannot have contact with your significant other or family member. If you try to call, text or email your significant other or family member in violation of the order, the police can be called and you can be arrested and criminal charges filed for failing to obey the Protective Order.
I need my belongings from my home. What do I do?
If you are under the terms of a Protective Order, you cannot arrange with your significant other or family member to go to your home and pick up your belongings. Sometimes it is possible to arrange this with your local law enforcement agency, however, you should contact an attorney to understand what you can and cannot legally do. If you are arrested for violating the Protective Order, you could be held in jail for a period of time for the violation before the case goes to court for a hearing. In addition to receiving a criminal charge which carries additional jail time and other penalties, your actions would contribute to the court’s evaluation of whether a Protective Order is needed in your case because you cannot follow the court’s directions.
What if I need to change part of the Protective Order?
Protective Orders are civil in nature. This means that the parties to the order are you and your significant other or family member. If an agreement is later reached to amend or change the order, it is necessary for paperwork to be provided to the court requesting that the court change the Protective Order. Otherwise, the Order’s terms and conditions remain in place.
What is a “no contact” provision in a Protective Order?
No contact means no contact. Contact includes phone, email, text message and in person contact.
I want to see my children but the Protective Order says that I cannot – what do I do?
If the Preliminary Protective Order says you cannot have contact with your children, there is nothing you can do until there is a full hearing or trial by the Court to address whether these protections should continue. At that hearing, it is necessary to present evidence and witnesses to the judge as to why you should be permitted to have contact with your children.
Can I get a legal separation?
There is no such thing in Virginia as a legal separation. When you no longer are living with your spouse, you are considered “legally separated.”
Can I get a divorce?
You may be considering whether you have the ability to divorce your spouse. Contact an attorney to understand your options both for your immediate safety and for the longer term goals involving divorce, separation, custody and support. There are 5 reasons for divorce in Virginia: 1) adultery, with no waiting period, 2) your spouse is convicted of a felony and sent to jail or prison for more than one year, with no waiting period, 3) physical cruelty, after a one year waiting period, 4) desertion, after a one year waiting period, 5) an uncontested divorce after a one year separation, or after a 6 month separation if you have no minor children of the marriage and a signed separation agreement.
Issues relating to divorce, custody and visitation overlap between Protective Order cases which allow for temporary decisions on those issues and a family law case in which the court can issue more permanent orders. If a Protective Order is issued and confines your rights to see your children, you will want to discuss your options as to any permanent choices available for custody and visitation. Often, petitions for custody, visitation and support can be filed and pending at the same time as a protective order. Knowing how to defend yourself and understanding what options are available to you will help you be best prepared.
I am also charged with a crime in addition to having a Protective Order
The relationship between a criminal case and a Protective Order is an important thing to understand. In a criminal case, you will have certain constitutional rights which include the right against self-incrimination and the right not to testify. If you have a criminal charge pending against you at the same time as a Protective Order, it is necessary to weigh the rights and options you have in each case. If the prosecution lacks evidence to support your criminal charge, it may be prudent for you not to testify in the criminal case. If, however, you chose to testify in the Protective Order case, your testimony could be used against you in the criminal case. The penalties available in a Protective Order relate to contact between the parties. The penalties in a criminal case include loss of freedom or jail, as well as fines, no contact and probation.
Understanding the strategies to defend yourself in a criminal case and how those strategies affect your preparation to defend yourself in a Protective Order case are crucial to achieving the best result in both cases. Contact an experience Domestic Violence and Protective Order defense attorney at Leary Law today.