In many family law cases involving divorce and custody disputes, matters can become emotionally charged and sometimes even turn violent. In some cases, one party may feel threatened or unsafe because of the actions and threats of the other party.
Virginia law provides legal protections called protective orders, otherwise known as restraining orders, to protect individuals and their children from another person’s threats, threatening behavior, physical or emotional abuse, or harassment in these circumstances.
If you have been the victim of threatening or abusive behavior and are considering seeking a protective order (or feel you have been unfairly targeted with one), understanding the process, potential outcomes, and your rights will be critical. Family violence is a serious matter, and it is critical to get skilled legal guidance. At Melone Hatley, P.C., we are here to protect your rights, whether you are fearful of someone’s threatening behavior or have been unfairly served with a protective order.
What Is a Protective Order and What Type of Order Applies to Your Situation?
A protective order is a legal court order issued to protect individuals and their children from abusive or threatening behavior by another party. Protective orders are designed to prevent acts of violence or other behavior that pose a threat to someone’s well-being. If you have been subjected to abuse or violent threats, a protective order works as a critical legal measure to protect your safety and prevent further harm to you.
Virginia courts provide three types of protective orders, depending on the urgency and the situation.
Emergency Protective Order (EPO)
An Emergency Protective Order is a short-term order used primarily in urgent situations when someone is in imminent danger.
EPOs are issued by a judge or magistrate to provide temporary immediate protection – usually for a period of 72 hours or until the next court session — when a longer-term solution can be ruled on. An Emergency Protective Order is often used in domestic violence incidents or when law enforcement has determined there is an immediate threat to someone’s safety.
Preliminary Protective Order (PPO)
A petitioner (victim) can request a Preliminary Protective Order if a dangerous situation is ongoing.
A judge may issue a PPO without the respondent (abuser) present, and a court hearing will be scheduled within 15 days to determine if the order should be extended. A PPO is typically used when there is a continued threat or pattern of abuse, allowing time for the court to review the situation in more detail while protecting the victim.
Permanent Protective Order (PO)
After the court’s full hearing, a permanent protective order may be issued if the court finds credible evidence of a long-term risk, usually in cases of chronic domestic violence, stalking, or other persistent threats. The Permanent Protective Order can last up to two years, after which the petitioner can request an extension, if needed.
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What Do Protective Orders Do?
Protective orders serve as a critical barrier between a victim and abuser, creating clear legal boundaries designed to prevent further abusive behavior.
The primary function of a protective order is to keep the petitioner safe by:
- Prohibiting the respondent from going near the petitioner, their children, their home, and their place of work. It can also mandate the respondent stay a certain distance away from the victim or places they frequent, creating a physical safety zone that reduces the chance of unexpected encounters and intimidation.
- Prohibiting the respondent from contacting the petitioner or their children and forbidding any form of communication, including phone calls, text messages, emails, social media interactions, or other third-party contact.
- Granting the petitioner temporary custody of their minor children, ensuring they remain in a safe environment and are protected from potential harm.
Who Can Ask for a Protective Order?
To request a protective order, you must have been subject to an act involving violence, force, threats of bodily injury, or ones that place you in reasonable fear of death, sexual assault, or bodily injury.
If you are afraid of someone and feel you are in danger, it is best not to wait to seek a protective order. The more time that lapses between the incident and filing for a protective order, the less likely you will get the relief you seek.
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Practical Steps to Take if You Are Dealing with Abusive or Threatening Behavior
If you have been dealing with chronic abusive behavior, critical actions you should take in addition to filing for a protective order include:
- Call the police if you are in immediate danger. Police reports provide official documentation that can support your case. Keep in mind that calling the police can escalate an abuser’s behavior, so it is important to be mindful of your surroundings. Also be aware that a police call will likely result in an arrest and potential charges if the officer believes there is evidence of abuse.
- Document any abuse, keeping detailed records of incidents, dates, times, and descriptions of what occurred. Save any text message, emails, or voicemails as evidence.
- Have a safety plan, whether or not you’re ready to use it. At the very least, identify safe areas of your home where you can call for help.
- Seek medical attention if you have been physically harmed. Medical records will serve as important evidence in court when you seek protection.
- Get support. While a protective order protects you legally from violent threats or behavior, it may not be enough to protect you physically. Get the help and support of a domestic or sexual violence advocacy group to assist you with developing a plan to leave a dangerous situation and ensure your physical safety.
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How to File for a Protective Order
Fling for a protective order will be a critical step if you need protection from an abusive or threatening individual.
Do You Need an Emergency Protective Order?
If you are in immediate danger, contact law enforcement. Police officers can request an EPO on your behalf by contacting a magistrate at any time of the day or night as part of a domestic violence incident or arrest.
If you are fearful of another individual, you can still seek an emergency protective order without police involvement by going to your local magistrate, providing evidence and swearing to facts that have led you to seek protection. Evidence can include
- Police reports documenting prior incidents
- Medical records showing injuries related to the abuse
- Photos of injuries and property damage
- Text messages, emails, or voicemails with threatening language
- Witness statements from people who have witnessed the abuse
- Sworn testimony detailing incidents and why you fear for your safety
The magistrate will evaluate your evidence and determine whether there is reasonable cause to issue an emergency order until a court hearing is set, usually within two weeks. If you need protection for a longer period of time, you must ask the court for a Preliminary Protective Order.
How to File for a Preliminary Protective Order
The court process for obtaining a Preliminary Protective Order protects you while allowing the other party to present their side of the case.
Filing the Petition
A petition for a Preliminary Protective Order must be filed with the appropriate court, depending on who you seek protection from.
- If the person you seek protection from is a family member, household member, intimate partner, a juvenile, or you are a juvenile, you will file for a PPO at the Juvenile and Domestic Relations District Court. Family members include spouses, ex-spouses, parents, children, siblings, grandparents, and other relatives living in the same household.
- If the person you seek protection from is not a family or household member, you will file your petition in the General District Court.
You should support your petition with credible evidence showing an ongoing threat and why you are in fear of harm. Evidence can include documentation of police involvement, medical records, photos of injuries or property damage, communication records, witness testimony, or a sworn statement. The judge will review this evidence and determine whether there is an immediate need for protection.
Ex Parte Hearing
The court may conduct an ex parte hearing where only you are present. The purpose of an ex parte hearing is to provide immediate, temporary protection until a full hearing can be scheduled. At an ex parte hearing, you will present your evidence demonstrating why immediate protection is necessary.
However, a PPO is not always ex parte. Due process requires that the the other party has the opportunity to contest the order at a subsequent full hearing.
Issuance of the PPO
The judge will evaluate the evidence to decide whether to issue a Preliminary Protective Order. If the judge believes the evidence is compelling, they will issue the PPO, which will remain in effect until the full hearing, typically scheduled within 15 days.
Service of the Preliminary Protective Order
Once the PPO has been issued, law enforcement will serve the respondent with a copy, notifying them of their restrictions under the order and the date of the full hearing.
The Full Hearing
At the full hearing, you and the respondent will have the opportunity to address your side of the story, present evidence, and offer witness testimony. The judge will review the evidence, hear both sides’ arguments, and decide whether to issue a Permanent Protective Order. A Permanent Protective Order can last up to two years with the possibility of extensions, if needed. If the judge finds insufficient evidence, the PPO will be dissolved.
Preparing for Your Hearing
If you have sought a protective order, preparing for your hearing will be critical to ensure your case is presented as effectively as possible.
- Gather evidence – The judge will rely on the information you provide to decide whether to issue a protective order. Your evidence should be as comprehensive as possible, including written communications, photographic evidence, medical records, and police reports. It should also be organized showing a timeline of the pattern and severity of the abuse.
- Prepare your testimony – Your testimony is your opportunity to tell your side of the story and include key points you want the judge to know. Describe these incidents clearly, detailing what happened, when and where they occurred, how they have affected your physical and emotional well-being, and why you believe continued protection is necessary.
- Identify witnesses who directly saw the abuse or observed its effects on you or your children and can support your claim. These can include neighbors, family members, medical professionals, and law enforcement officers.
- Prepare yourself mentally for the possibility of seeing the respondent in court. Consider bringing a trusted family member or friend. Many courts also have victim advocates who can provide emotional support and assistance.
- Seek legal representation – Your attorney will prepare you and advocate for you throughout the process, questioning witnesses and responding to arguments made by the opposing side. Attorneys understand the emotional toll these matters take and often work closely with your other support professionals and domestic violence advocates to ensure your continued safety.
What are the Consequences of Violating a Protective Order?
Protective orders are legally binding court orders and noncompliance can have significant consequences.
Violating a protective order in Virginia is considered a Class 1 misdemeanor, resulting in up to 12 months in jail, a fine of up to $2,500, or both. Repeat violations can result in felony charges and prison time.
How a Protective Order Can Impact a Respondent in a Divorce or Custody Case
If you have been served a protective order, you should understand how this could potentially impact your divorce or custody case. Courts take allegations of abuse very seriously, especially when children are involved. When a protective order has been issued, this can influence several aspects of your ongoing custody or divorce case.
Child Custody and Visitation
One of the most immediate impacts of a protective order is on custody and visitation rights. Because Virginia courts prioritize a child’s safety and well-being, the respondent may face custody or visitation restrictions or even a complete denial. Supervised visitation may be required to ensure the child’s safety.
Impact on Parental Fitness
Protective orders can raise concerns about a parent’s fitness, especially if the allegations involve domestic violence or threats directed toward the child or other parent. If a parent is found unfit, it will affect custody decisions and may lead the court to award sole custody to the other parent.
Fault-Based Grounds
In Virginia, a protective order can impact divorce proceedings involving fault-based grounds, especially for cruelty. The existence of a protective order may demonstrate a pattern of abusive behavior, which the court can consider when determining fault. Judges may weigh evidence of abuse or harassment heavily in a fault-based divorce proceeding.
Division of Marital Assets
While protective orders will not directly influence the division of marital assets, they could indirectly impact decisions about who remains in the family home if the order requires the respondent to vacate the residence.
Credibility
A protective order can damage a respondent’s credibility during divorce and custody proceedings. The court may view the existence of an order as evidence of harmful behavior, even if the respondent contests the allegations.
Firearms Restrictions
Federal and state laws prohibit those subject to a protective order from possessing firearms. This can be significant for individuals who rely on firearms for their work, such as law enforcement officers or military personnel.
Professional and Personal Repercussions
A protective order can have lasting effects even beyond family court. Respondents often experience difficulties in their professional lives, including job loss or damage to their reputation.
Criminal Conviction and Virginia Domestic Violence Law
In Virginia, domestic violence, assault, stalking, and other related offenses are considered criminal acts. Consequently, a protective order can act as evidence in a related criminal case. If the court finds sufficient evidence of abuse, the respondent may face more than just a protective order. They may also face criminal charges that could result in:
- Jail time and fines
- A permanent criminal record
- Firearm restrictions
- Future impact on custody and divorce proceedings
A criminal conviction can also further solidify grounds for a Permanent Protective Order, making it even more difficult for the respondent to contest the order in future hearings.
What Happens if Allegations of Abuse and Threats Have Been Made Falsely?
False allegations of abuse can also have serious legal and personal consequences. If a protective order is obtained based on false claims, the respondent has the option to challenge the order and seek justice.
- The respondent can present evidence during the hearing to refute allegations, presenting their own evidence showing the claims are false.
- If the order is already in place, the respondent can file a motion to dissolve it and present evidence of their own. The court will review the evidence and schedule a hearing to reconsider the order.
- Making false statements under oath is a crime in Virginia. If the petitioner is found to have knowingly provided false information, they could face perjury charges.
- False allegations of abuse can negatively impact the accuser’s credibility in an ongoing custody or divorce case. Judges often view false allegations as harmful to the child and may adjust custody arrangements accordingly.
- If the false allegations caused damage to the respondent’s reputation, they could pursue a defamation lawsuit against the accuser.
The law takes protective orders seriously but also provides safeguards to protect individuals from false accusations. Consulting an attorney is critical if you believe you have been wrongly accused of abusive or threatening behavior.
Getting the Skilled Legal Guidance of an Experienced Virginia Family Law Attorney
Family violence can have a long-lasting effect on families and legal matters such as custody and divorce. Fortunately, protective orders provide a critical layer of safety for victims of family violence. They can also carry significant legal consequences for the respondent, impacting family law proceedings in profound ways. If you are navigating a protective order case, seeking legal guidance is critical.
The experienced Virginia family law attorneys at Melone Hatley, P.C. are here to help. With a deep knowledge of Virginia law and a compassionate, client-centered approach, we can assist you through every stage of the process. Whether you are seeking protection or defending yourself against false allegations, we offer the support you need during these challenging times. Contact us or call 800-479-8124 for a free consultation with one of our client services coordinators.
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