Edward F. Younger
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Protective Orders

 

Protective Orders in Virginia:

A restraining order or protective order is a legal order issued by a state court, which requires one person to stop harming another. In Virginia, there are several types of orders explained below.

A quick overview of the legal system

The legal system is divided into two areas: civil law and criminal law. Separate courts govern (control) these two areas of the law.

One of the most confusing things about the legal system is the difference between civil cases and criminal cases. In domestic violence situations, there may be both civil and criminal cases occurring at the same time as a result of the same violent act. You may want to pursue both civil and criminal actions for maximum protection. The major differences have to do with who takes the case to court and the reason for the case.

Civil Law

In a civil domestic violence action, you are asking the court to protect you from the person abusing you. You are not asking the court to send that person to jail for committing a crime. However, if the abuser violates the civil court order, he may be sent to jail for the violation. In a civil case, you are the person bringing the case against the abuser and (in most circumstances), you have the right to withdraw (drop) the case if you want to.

Criminal Law
The criminal law system handles all cases that involve violations of criminal law such as harassment, assault, murder, theft, etc. A criminal complaint involves your abuser being charged with a crime. In a criminal case, the prosecutor (also called the district attorney) is the one who has control over whether the case against the abuser continues or not. It is the county/state who has brought the case against the abuser, not the victim. It is possible that if you do not want the case to continue (if you do not want to “press charges”), the prosecutor might decide to drop the criminal charges but this is not necessarily true. The prosecutor can also continue to prosecute the abuser against your wishes and could even issue a subpoena (a court order) to force you to testify at the trial.


What is a Protective Order? How long does it last?

A family abuse protective order is a civil court order that is designed to stop violent behavior and keep your abuser away from you.

There are 3 types of protective orders for family abuse:

Emergency Protective Order An Emergency Protective Order is designed to give you immediate protection, and can be given on the weekends or after business hours when the courthouse is not open. It also can be given ex-parte by a judge, if he/she believes that you are in immediate danger. Ex-parte means the abuser does not have to be present or know that the order has been requested. However, your abuser will have to be served (given the order) before it takes effect.

You can petition for an emergency order with a magistrate at the Court Service Unit of a Juvenile and Domestic Relations Court, or at a General District Court or Circuit Court. A law enforcement official may also request that one be given to you.

An Emergency order expires at the end of the third day following issuance. If it expires at a time when the court is not in session, the order will be extended until the end of the next business day the court is in session. An additional three days extension may also be granted, if you are hospitalized or otherwise incapacitated.*

The judge or magistrate should provide written information regarding protective orders that shall include the telephone numbers of domestic violence agencies and legal referral sources on a form prepared by the Supreme Court. **

Preliminary Protective Orders:
A preliminary protective order is the first step in obtaining a Permanent Protective Order. It is similar to an emergency order, but law enforcement officials cannot request a preliminary order for you. You must file a written petition yourself at the intake office of the Juvenile and Domestic Relations courthouse. To fill out the petition before you go to court, you can use the I-Can system.

Preliminary orders last up to 15 days, unless the court continues the case for longer.***

If the respondent fails to appear at this hearing because the respondent was not personally served, the court may extend the protective order for a period not to exceed six months. The extended protective order shall be served as soon as possible on the respondent.***

Permanent Protective Orders:
A permanent protective order offers more lasting protection against domestic abuse. The order will last up to 2 years. It can only be granted after a full court hearing where both you and your abuser have an opportunity to tell your own sides of the story to a judge.

A permanent protective order takes effect after it has been served (given) to your abuser. You should be notified when your abuser is served.****

* VA ST 16.1-253.4
** VA ST 16.1-253.4
*** VA ST 16.1-253.1
**** VA ST 16.1-253.1

What is the legal definition of domestic violence in Virginia?


In Virginia, domestic violence is referred to as "Family abuse." Family abuse is when your family or household member hurts you using:

violence;
force; and
threats that result in bodily injury or place you in reasonable fear of bodily injury.
To read the exact wording of the law, please see the VA Legal Statutes page, § 16.1-228.

How much does it cost to get a protective order? Do I need a lawyer?

There is no filing fee to get a Protective Order.*


If you cannot afford a lawyer but want one to help you with your case, you can find information on legal assistance and domestic violence organizations. In addition, the domestic violence organizations in your area and/or court staff may be able to answer some of your questions or help you fill out the necessary court forms.

* VA ST 16.1-279.1

What is a Stalking Protective Order?

A Protective Order in cases of stalking or serious bodily injury is similar to a Family Abuse Protective Order, but it can only be issued after a warrant is issued for the arrest of your stalker or abuser.

You are eligible to file for a Stalking or Serious Bodily Injury Protective Order if:

You have been stalked OR you have suffered serious bodily injury as the result of an assault by your abuser; AND
A warrant for the arrest of your stalker/abuser has been issued (so you must be willing to report the stalking/ assault to law enforcement officials and allow them to press charges); OR
Your stalker/abuser has been convicted of stalking or another criminal offense resulting in serious bodily injury against you.*
Note: You do not have to have a family or household member relationship with your stalker or abuser in order to file for a stalking or serious bodily injury protective order. Meaning, you can file for a stalking protective order against anyone who has committed acts of stalking against you, or who has seriously injured you.

The steps for filing are similar to the steps for filing for a family abuse protective order, as described in VA Protective Orders section.

You can find the petition for a stalking protective order online, and instructions for how to fill the petition out on our Download Court Forms page.

* VA ST 19.2-152.10

What is the legal definition of stalking?

In Virginia, a person is guilty of stalking when s/he intentionally makes you or a family member of yours afraid of suffering:

death;
criminal sexual assault; and
physical injury.

Can I get my PO from VA enforced in another state?

Yes. If you have a valid Virginia PO that meets federal standards, it can be enforced in another state. The Violence Against Women Act, which is a federal law, states that all valid POs granted in the United States receive "full faith and credit" in all state and tribal courts within the US, including US territories. See How. Do I know if my PO is good under federal law? To find out if your PO qualifies.

Each state must enforce out-of-state POs in the same way it enforces its own orders. Meaning, if your abuser violates your out-of-state PO, she will be punished according to the laws of whatever state you are in when the order is violated. This is what is meant by "full faith and credit."

How do I know if my PO is good under federal law?
A VA Protective Order (PO) is good anywhere in the United States as long as:

It was issued to prevent violent, threatening, or harassing behavior against another person, OR it was issued to forbid contact or communication with another person.
The court that issued the order had jurisdiction over the people and case. (In other words, the court had the authority to hear the case.)
The abuser received notice of the order and had an opportunity to go to court to tell his/her side of the story.
In the case of ex parte and emergency orders, the abuser must receive notice and have an opportunity to go to court to tell his/her side of the story at a hearing that is scheduled before the temporary order expires.*
Note: Civil POs that are issued in state courts may be enforced on military bases; however, military protective orders (MPOs) may not be enforced off base. It is important to check with the court clerk or a local domestic violence advocate, and see our Military Info page for more details.
* 18 USC 2265

I have a preliminary order. Can it be enforced in another state?
Yes. Preliminary orders can be enforced by other states, just like any regular PO, as long as the abuser has been served and will have the opportunity to have a court hearing set before your temporary order expires.


Can I get my protection order enforced in Virginia? What are the requirements?
Yes. Your protection order can be enforced in Virginia as long as:

It was issued to prevent violent, threatening, or harassing behavior against another person, OR it was issued to forbid contact or communication with another person.
The court that issued the order had jurisdiction over the people and case. (In other words, the court had the authority to hear the case).
The abuser received notice of the order and had an opportunity to go to court to tell his/her side of the story.
In the case of ex parte and emergency orders, the abuser must receive notice and have an opportunity to go to court to tell his/her side of the story at a hearing that is scheduled before the ex parte or emergency order expires.*
Note: Civil restraining orders may be enforced on military bases; however, military protective orders (MPOs) may not be enforced off base. It is important to check with the court clerk or a local domestic violence advocate, and see our Military Info page for more details

* 18 USC 2265

Can I have my protective order changed, extended, or canceled in VA?
No. Only the state that issued your protection order can change, extend, or cancel the order. You cannot have this done by a court in Virginia.

To have your order changed, extended, or canceled, you will have to file a motion or petition in the court where the order was issued. You may be able to request that you attend the court hearing by telephone rather than in person, so that you do not need to return to the state where your abuser is living. To find out more information about how to modify a restraining order, see the "How to Get a Restraining Order" page on our website for the state where your order was issued. Simply select Restraining Orders from the Know the Laws tab on the top of this page and then chose the state you want.

If your order does expire while you are living in Virginia, you may be able to get a new one issued in Virginia. But this may be difficult to do if no new incidences of abuse have occurred in Virginia. To find out more information on how to get a protective order in Virginia, visit our VA How to Get a Protective Order page.

I was granted temporary custody with my protection order. Will I still have temporary custody of my children in VA?
Yes. As long as the child custody provision complies with the Uniform Child Custody Jurisdiction Act (UCCJA) or the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and is consistent with the Parental Kidnapping Prevention Act of 1980, VA can enforce a temporary custody order that is a part of a protection order.
 

Source: VA Bar Association

The information on this site is not, nor is it intended to be, legal advice. Please contact us to obtain legal advice pertaining to your situation.