No one should be subjected to family abuse. If a person physically injures or threatens harm to their family member, courts have the power to issue a Protective Order to protect the health and safety of the family. In some states, a protective order is referred to as a restraining order. In Virginia, orders which protect someone from physical or threatening abuse are called Protective Orders. A Protective Order can be issued to remove a person from their family residence and to prevent that person from having contact with their family.
If someone is hurting you or is threatening to hurt you, there are many different things you can do to get help. If you are in a life-threatening situation or your safety is immediately in danger, you should call 911. Protective Orders often come about as a result of a person being arrested for domestic violence.
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. One person dominates other household members by violence and/or psychological abuse.
If someone is hurting you, or you feel like someone is trying to hurt you, seek help. You have a right to live in peace and safety without violence or threat of harm. If you are afraid that the person will hurt you, you can ask the court for a Protective Order. At Court, the judge will decide if you receive the protective order.
If you feel threatened by another person and feel it is safe to do so, you can leave. If you don’t have any friends or relatives you can stay with, you can ask to go to a safe shelter. For some people, leaving is the best option, but for others it is not. Contact an attorney at Leary Law to help understand your options.
What are Protective Orders?
A Protective Order is a document signed by a judge or magistrate that tells the person who is hurting or threatening you that they cannot do that anymore. 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. If you are the victim of abuse, understanding your rights and options is very important to help you stay safe from harm.
A Protective Order can say that another individual can have no contact with you and that they are not permitted to further abuse or harm you.
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.
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. If you need protection for a longer period of time, you must ask a court for a Preliminary Protective Order.
Where do I go to request a Preliminary Protective Order?
If the person from whom you want protection is a family or household member or a juvenile, or if you are a juvenile, you must go to the juvenile and domestic relations district court in the county in which you live. When you go to the court, you will meet with an specialist in the Intake Office. The Intake Office is responsible for receiving and reviewing requests for new matters which are to be initiated in the court. When you go to the juvenile and domestic relations court, you will be guided through the process of how to obtain a preliminary protective order.
How do I get a Preliminary Protective Order?
When you arrive at court, you will be directed to fill out court forms. When possible, you should come prepared to describe the incidents of family abuse which have caused you to seek a protective order. You should try to bring with you the contact information and identifying information for the individual you are seeking a protective order against. If the court agrees to issue a Preliminary Protective Order, the court will need to have your family member served with a copy of the order. To do so, the court must have a way to contact and find the family member.
Once you complete any necessary paperwork, you will be asked to appear before a judge and explain your situation. The judge may have questions for you to understand what has been happening in your life and to determine whether a protective order can be issued.
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.
How much does it cost to file for a Protective Order?
There is no court cost or filing fee to request a Protective Order from the court.
What should I bring with me when I go to court to ask
for a Preliminary Protective Order?
You should bring the name, address and identifying information of the person from whom you are seeking protection and a full description of the event that led you to seek a protective order. The address should be the place where the person can be found and not a P.O. box.
If you have other paperwork, such as an Emergency Protective Order, the business card of a law enforcement officer who arrested your family member, you should bring those materials as well. You will be asked to provide information about the most recent incident of family abuse as well as other incidents in the recent past. You should be prepared to provide the court with dates and details that will help the judge determine what can be done.
How long should I expect to spend at court?
Once you are at the courthouse, you could be there for a few hours while you fill out paperwork and wait to be seen by a judge.
How long does a Preliminary Protective Order last?
If the judge grants your request for a Preliminary Protective Order, the Order will be valid for 15 days. The Order will also include a date for the court to have a full hearing, or in other words, a trial relating to your 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.
A full hearing occurs when both you and your family member come to court at the same time and each of you are able to present any evidence and witnesses in support of your request.
When you go to Court to obtain a Preliminary Protective Order, the judge will tell you your next court date and you will receive paperwork confirming what happened in court and when you need to return.
What can I ask the Court to 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 the Abuser to leave your home
- Granting you Possession of your home
- Granting you possession of any jointly owned vehicles
- Granting you temporary custody of your children
- Ordering you to receive temporary child support if you share children
- Granting you possession of a family pet
- Ordering the Abuser 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.
What evidence must I bring to court to ask for a full 2 year 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 includes photographs, videos text messages or emails which establish an act of family abuse. Witnesses can include yourself and anyone else with first-hand knowledge of any acts of family abuse or history of family abuse.
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 seeking protective orders on behalf of victims of abuse. 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, the Preliminary Protective Order will expire and you will no longer be under its protection.
What if I believe the other person is not coming to the Protective Order hearing?
Even if you know that your family member is not going to come to court, you should still go and ask the court for a protective order. If you do not appear, the Preliminary Protective Order will expire.
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 your family member is “personally served” with a copy of the order. In other words, your family member 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.
Because service of the Protective Order is necessary, it is important for you to provide the court or law enforcement with information that will allow them to find your family member and provide them with a copy of the order. Helpful information includes that individual’s address, phone number, place of work, and/or photograph.
How will I know if the person against whom the order was issued has been served?
In order to check on the status of the service of the Protective Order on your family member, you may call law enforcement and ask if the person has been served.
What if the person against whom the order was issued does not obey the order?
Once the Court issues an Emergency Protective Order, a Preliminary Protective Order or a full Protective Order, your family member is under specific instructions as to how they can or cannot have contact with you. If your family member tries to call you or contact you in violation of the Order, you should call law enforcement. If in violation of the Order, the person can be arrested and criminal charges filed for failing to obey the Protective Order.
What if the person comes to my house or work place?
The Emergency Protective Order, Preliminary Protective Order or full Protective Order will tell your family member whether and if they can have contact of any kind with you. If the person is not permitted to be around or near you and they show up at your home or your workplace, call the police. They are in violation of the order and can be arrested and charged with a crime.
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 family member from who you are seeking protection. 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. If you ask that your family member have no contact whatsoever with you, then then Order will say that . Contact includes phone, email, text message and in person contact.
What if I must sometimes contact the other person?
When you request a Protective Order, if there is a reason you still want to be able to have some kind of contact with your family member, you must tell the judge that at the hearing. For instance, if you and your family member or significant other share children and you want to be able to have contact to discuss the children or allow the children to speak with that person, you must ask the judge for that exception to the no contact rules.
Should I take the children?
You should make every attempt to take the children with you if you want to get custody of them. This is not kidnapping. Unless there is court-ordered custody, both parents have legal rights to the children and are free to take them. It is easier to get court ordered custody if the children already are with you.
The children do not want to leave. Should I?
It’s important to trust your own judgment. Sometimes after being in an abusive relationship for a long time, victims begin to rely on their children to make the decisions. Remember you are the parent. You must make the decisions. Your children may be unhappy for a while, but think of the long term effects of watching domestic violence. Your children will have more problems later because of abuse they witness.
What if I am locked out or am afraid the abuser may be home? How do I get things I left behind?
If you can’t get into your home to get your personal belongings, you may need to file a “Warrant in Detinue.” This is only for property which belongs to you alone. The court will not divide marital property in a Warrant in Detinue. To file, you must bring a complete list of your belongings to the General District Court Clerk’s office and a pay a filing fee. If you win, the abuser must return your property and repay you the filing fee.
Can I get assistance if I leave?
Money: If you have children under 18 who live with you, you may qualify for money from the Temporary Assistance to Needy Families (TANF) program. TANF is a monthly payment for children who are in a family in financial need.
Child support and spousal support are other options. You file for child custody, child support and spousal support with the Court Services unit of your local Juvenile and Domestic Relations Court. Food:
If you have low income, you may qualify for Food Stamps at your local Department of Social Services (DSS). You will get a card which you use to purchase food at participating stores. Your local shelter may be able to assist you also with names and numbers of local food banks. Shelter:
If you need immediate shelter, contact your local Domestic Violence Shelter.
If you have some time to plan your leave, you may want to look at public housing or other housing at a reduced rate for low income families. The Department of Social Services should have a list of public housing in your area.
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.
If I go to another state, will my Protective Order be valid in that state?
Federal law requires all states to enforce protective orders issued by other states. You should contact the nearest court in that state for more information.
What if the Person who is Hurting or Threatening You is not your Family or Household Member?
Then, you have to ask for a Non-Family Abuse Protective Order. You can ask for a Non-Family Abuse Protective Order when the person who is hurting you or threatening to hurt you is not your Family or Household Member.
- Who can you get protection from under a Non-Family Abuse Protective Order?
- Your caregiver;
- Your neighbor;
- Someone who is threatening to hurt you or someone who is hurting you even if you do not know him or her;
- Someone who is contacting or trying to contact you when you do not want them to; • Your co-worker;
- Your friend;
- Your boyfriend or girlfriend who you don’t have a child with or you have not lived with within the past 12 months;
- Anyone who is hurting you or threatening to hurt you.