Protective Order Virginia: How to Defend Yourself if Someone Has Filed Against You
If someone has filed a protective order against you in Virginia, you have a right to defend yourself. Learn more about your legal options and get experienced help.
What Is a Protective Order in Virginia?
A protective order in Virginia, otherwise known as a restraining order in other states, is a legal order signed by a magistrate or a judge which prevents one person from contacting a second person or group of people – such as family members.
Virginia protective orders can be issued when threats or acts of violence place someone in fear for their health and safety or result in bodily injury.
That means, according to Virginia Code (§ 19.2-81.3), a law enforcement officer can arrest an individual without a warrant if they believe they committed an act of domestic violence, even if they didn’t see the actual crime occur. Although that can be of great assistance to domestic violence victims, it also puts falsely accused individuals in a difficult position.
Protective order cases are not criminal cases, and having a protective order issued against you does not mean you are going to jail. However, once a protective order is in effect, any violation of the order can and will likely be prosecuted for contempt of court. While it’s not a conviction for a criminal offense if a protective order is taken out against you, contempt of court is a crime.
Because of that, it’s essential to seek the counsel of experienced domestic violence lawyers if you have been served with a protective order in Virginia. They can help you build a strong defense and make sure no protective order violations occur.
Looking for a Virginia protective orders defense attorney? Contact Jay P. Mykytiuk attorney now!
Filing a Protective Order in Virginia
A protective order essentially involves filing a mini-lawsuit against an individual with whom you have an “intra-family relationship”. The law defines intra-family relationships broadly to include family members, household members, anyone you have been romantically involved with, and even roommates.
The person who files the petition for a protective order is referred to as the “petitioner”, while the person the protective order is filed against is referred to as the “respondent.”
In most protective order cases, the petitioner wants a stay-away order. There are several types of protective orders a judge can issue.
Usually, the judge will first issue an Emergency Protective Order if there are reasonable grounds to believe the defendant has committed family abuse against the petitioner or another family or household member. In addition, it has to be shown through the testimony to the judge or magistrate that there is a danger of the defendant committing more family abuse or another act involving violence.
The petitioner can get an Emergency Protective Order anytime, 24/7, every day during the year. A law enforcement officer can also request issuing an Emergency Protective Order. Emergency Protective Orders can be issued by any circuit court or general district court. The juvenile and domestic relations court judge, as well as any magistrate, can also issue Emergency Protective Orders.
Usually, the alleged victim testifies under oath that he or she has suffered violence or has been in reasonable fear of death, sexual assault, or bodily injury. Then the court determines if there is a risk of subsequent harm.
Because domestic violence and family abuse situations often require urgency, an Emergency Protective Order can be issued even without the defendant’s presence.
How to Apply for a Protective Order in Virginia
Filing a protective order petition at the wrong court can result in a delay in your case or even a dismissal. If the threats or injuries are made by a family or household member, as defined in Virginia law, the petition should be filed at the juvenile & domestic relations court. If, however, the individual doesn’t fit in the above-mentioned category, then the petition should be filed at the general district court.
Emergency Protective Order
Since Emergency Protective Orders last only 72 hours, those who want protection for longer have to petition for a preliminary protective order. These protective orders are different from Emergency Protective Orders because, under Virginia law (19.2-152.9 and 16.1-253.1), petitioners are required to have suffered threats or domestic violence for a considerable time.
Preliminary Protective Order
Some courts may require a petitioner to testify under oath in order to obtain a Preliminary Protective Order. Preliminary Protective Orders last up to 15 days or until a full court hearing. But, even the Preliminary Protective Orders can be issued “ex parte”, or in the absence of the respondent.
However, Preliminary Protective Orders have to be served to the respondents with a specified date and time for a hearing. At the court hearing, the respondent will have the opportunity to question the petitioner’s evidence as well as tell their side of the story and present their own evidence. If the petitioner doesn’t appear at the hearing, the Preliminary Protective Order will end on the day of the hearing.
This hearing has to be held within 15 days of the date the Preliminary Protective Order was issued. If there is insufficient evidence, the court will dissolve the Preliminary Protective Order and dismiss the case.
Permanent Protective Order
On the other hand, a Permanent Protective Order is issued under different guidelines. For example, after the full hearing, the judge has to determine if the family abuse occurred pursuant to Virginia law (§ 16.1-279.1). The family or household member petitioning for the order has to show she or he faces immediate and present danger. In addition, the respondent has to receive the hearing date notice and have the chance to challenge the petition for a protection order.
The Final Protective Order is not effective until it’s personally served to the respondent.
Cost of Protective Order in Virginia
There is no fee associated with filing for a protective order. The petitioner also doesn’t need to have a lawyer, although having one can be helpful.
If you are falsely accused of committing domestic violence or showing force or threat against a family or household member, it’s essential to reach out to a knowledgeable protective order defense attorney as soon as possible. You do have a right to retain an attorney, but you are not entitled to free counsel.
Although this can be a frightening situation, as a respondent, you have certain rights. For example, you are entitled to be notified of the request as well as to have a hearing where you can defend yourself from alleged offenses.
Having a protective order filed against you means you could be charged for criminal offenses if you don’t take things seriously and the protected party accuses you of violating the order. Also, if a permanent order is issued, you may be prohibited from possessing a firearm while the order remains in effect, and the order will show up on background checks.
Trial attorney Jay P. Mykytiuk can efficiently defend protective order respondents. While protective orders are civil remedies, their issuance can have criminal consequences and impact one’s ability to obtain a security clearance necessary for employment.
What Are the Requirements for a Protective Order in Virginia?
When issued, protective orders in Virginia can prohibit the respondent from contacting the petitioner and their family or household members. That means the respondent cannot legally have any contact with the petitioner—no email, text, social media, etc. Harassing, assaulting, threatening, or stalking behaviors are also prohibited.
Virginia Protective orders can also grant temporary custody and visitation rights to petitioners if minor children are involved. Temporary possession of a jointly owned vehicle can also be granted to the petitioner.
Petitioners often require that respondents move out if they are cohabitating or to provide suitable alternative housing for the petitioner and any other family or household member.
Petitioners can also request other types of relief in their petitions, including restitution for damaged or destroyed property, and even request the respondent obtain drug, alcohol, or mental health treatment.
So even if you feel you have been falsely accused, obeying the order’s requirements is the right way to fight it. You could also gather any physical evidence the petition refers to, such as photos or videos. Making a list of potential witnesses who may have additional information about the incident can also be useful. You could also gather any other evidence that can be related to the case, such as GPS records, computer records, phone records, and even receipts.
Any of these items may prove that, for example, you were not in the place where the alleged incident took place or that you were not responsible for accusations made against you.
Yet, you should not try to destroy evidence (even if you think it will hurt your case), contact the petitioner, or disobey the order’s provisions in any way.
What Do I Need to File for a Protective Order in Virginia?
In a protective order case, the petitioner has the burden of proof. However, unlike in a Virginia criminal case, the burden of proof is not beyond a reasonable doubt. It’s a much lower burden of “good cause”. Think 50% plus the weight of a feather.
On the other hand, if you are a respondent in a protective order case, you have to comply with the order strictly to avoid any action that may result in a criminal proceeding against you. It is advisable to get an attorney who has handled these types of cases and wait for the hearing to respond to the accusations.
Even after the protective order hearing, the case might not end. Petitioners always have the option to ask the court to renew the protective orders before they expire. Again, these hearings also have a relatively low standard and require the petitioner to “show good cause” as to why it can be extended.
It can be a “damned if you do, damned if you don’t” type situation. The court could extend the order if a violation was alleged but also could extend the order without an alleged violation under the rationale that the order is working.
How Long Does a Protective Order Last?
A Permanent Protective Order can last up to two years. At the hearing, the petitioner and the respondent both have a chance to present evidence to the court. If the court finds that the petitioner has proven the allegation of family abuse, the court can issue a protective order that can be in effect for up to two years. In addition, these protective orders can be renewed every two years.
Preliminary Protective Orders can last up to two weeks. But, if the respondent fails to attend the court hearing, the order may be extended up to six months. Also, the validity of a Preliminary Protective Order can be prolonged to cover the period between the entry of a Preliminary Protective Order and issuance of a Permanent Protective Order, but it cannot exceed six months.
How Long Does an Emergency Protective Order Last?
An Emergency Protective Order lasts for 72 hours after it is issued. If, after that time, the court is not in session, the order will be extended until 5:00 PM on the next business day that the juvenile and domestic relations district court is in session.
If additional protection time is required, the petitioner can seek a Preliminary Protective Order. But, if the victim is mentally or physically incapable of doing that, a law enforcement officer can request an extension of the Emergency Order for another 72 hours.
State of Virginia Protective Order Laws
Sometimes, courts can be cautious when issuing protective orders “ex parte”. The court can also decline to issue a protective order, especially if the respondent hasn’t received any notice.
But, if someone has requested a protective order against you, it’s in your best interest to have the order lifted or that your lawyer convinces the other side to withdraw the petition. Either way, you have to provide proof that you have no outstanding matters in the Virginia courts and proof of good conduct.
Documents relating to rehabilitation, work status, probation, and other law enforcement records, can be provided. The judge will analyze the evidence provided and decide if you qualify for a status change before revoking a protective order.
Although domestic violence is a serious offense with devastating consequences, there are many false claims of abuse in Virginia every year. It’s not unusual that fighting or divorcing spouses use restraining orders as weapons against each other.
The legal and social repercussions of a false allegation can have an incredibly detrimental impact on an individual’s standard of living. Protective orders can interfere with individuals’ daily lives and affect their rights. An experienced protective order lawyer can help you navigate the process and advise you on the possible options. Contact attorney Jay P. Mykytiuk of Scrofano Law today for a full case evaluation.
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