When is a Protective Order permitted in Virginia?
Commonly referred to as “restraining orders” in other states, Virginia grants Protective Orders to protect individuals against others who present a physical danger to them. If you’re seeking a Protective Order (you are the petitioner), the Order can provide tangible protection from someone trying to harm you. If you’ve found out that someone is seeking an Order against you (you are the respondent), a Protective Order can impose criminal liability upon you.
There are a lot of misconceptions about Virginia Protective Orders. In fact, I often get calls from people completely confused about the entire process. So I’ve decided to try to explain how it works. Keep in mind, however, that to obtain a Protective Order, you will have to go to court. And for someone who doesn’t practice trial work regularly, the court can prove to be a game stopper.
I always urge those seeking Protective Orders to consult with a well-versed attorney in the local jurisdiction in which they seek the Order. While this article is not intended to serve as legal advice, it can help you discuss your case with your potential attorney more fluidly so that you can ask better questions and get better answers.
Who can obtain a Protective Order?
Until recently, a petitioner seeking a protective order could only get an order against a “family or household member.” However, in 2010, the tragic murder of UVA Student Yeardley Love spurred change in the Virginia General Assembly. In 2011, Virginia Protective Order Law was amended to broaden the scope of who can be protected. Now, a petitioner can obtain a Protective Order against any other party upon demonstrating the appropriate need.
What must be proved to get a Protective Order?
To obtain a Protective Order, a petitioner must demonstrate two facts:
1) that the respondent committed “abuse,” and
2) that the Order is necessary to “protect the health and safety of the petitioner and family or household members of the petitioner.”
What is “abuse”? (Is actual physical abuse or a direct threat required?)
The definition of "abuse" is found in Virginia Code Section 16.1-279.1 (when dealing with cases between family or household members) and Virginia Code Section 19.2-152.10 (when dealing with cases between non-family members). Both define “abuse” virtually the same:
An act of violence, force or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury… Such act includes, but is not limited to, any forceful detention, stalking, criminal sexual assault… or any criminal offense that results in bodily injury or places one in reasonable apprehension of death, sexual assault or bodily injury.
Certain actions are obviously “abuse,” such as actual physical assaults, death threats, abduction, etc. However, Stephens v. Rose, 762 S.E.2d 758 (2014) recently found abuse occurred without a direct act of violence or stated threat of violence. The Stephens case dealt with an ex-boyfriend who called the petitioner forty (40) times in a short period and showed up to both her father’s and her house unwanted.
In granting the Protective Order, the Virginia Supreme Court found “physical harm or threatened physical harm to a victim is not a necessary prerequisite to the granting of a protective order…” What’s more, “a victim need not specify what particular harm she fears...” So if your case does not involve direct physical harm or a clear stated threat, there is still the possibility of a Protective Order being granted.
How is the ongoing need for protection proved?
In addition to abuse, a person seeking a Protective Order must show that the Protective Order is necessary to protect the health and safety of that person. In plain terms, this means that evidence of an ongoing risk of danger must be proved.
While there are no specific rules to prove an ongoing risk of danger, the most straight forward approach is to prove a context of past abuse coupled with a demonstrated willingness to commit violence (or threaten violence) in the future. In cases where the respondent to a Protective Order has said “I’ll get you…” or “you better watch out,” the future threat is arguably clear. But other facts such as the proximity to the person seeking the Protective Order or actions taken to contact that person after he/she has said the advances are unwanted are important.
To help guide a person seeking a Protective Order, it’s important to seek the assistance of a skilled attorney to get more specific thoughts on your case.
What is “service of process” and why does it matter?
Service of Process is a step in pursuing a Protective Order that often causes difficulty. For a court to enter a Protective Order, the person whom the Order is sought against must be properly “served” with the Petition for Protective Order. That means that person must be given the actual Petition for the Protective Order so that he or she is aware the date and time of the hearing for the Order. Without proper service, the court simply lacks the power to do anything.
If the respondent fails to appear for the Protective Order hearing, he/she must be served with the Order if the court grants it in his/her absence. Therefore, while a court may grant a Protective Order request, it does not affect the subject of the Protective Order receives a copy.
What forms of relief can be granted by a Protective Order?
Upon entry of a Protective Order, the court can order several things to happen.
- No further acts of abuse – this is sort of a no-brainer. The court will always command the respondent to stop further acts of abuse.
- No Contact – the court will generally limit contact the respondent may have with the petitioner and his/her family members. The most common type of limitation is simply no contact at all. That means no physical, telephonic, email, text, or indirect contact through a third party. In some cases, however, the court may allow varied types of contact. As you can imagine, in certain cases, the prohibition of all contact is simply unworkable, such as where the parties have a child together.
- Granting the petitioner sole possession of the residence, requiring the respondent to pay utilities, granting the petitioner sole use of the car, or requiring the respondent to provide suitable alternative housing (family or household member cases only) – in some cases, the court can provide these forms of relief depending on the circumstances. They must be specifically requested for by the petitioner and evidence must be presented that they are appropriate.
- Ordering the respondent to participate in treatment or counseling (family or household member cases only) – again, this form of relief will be considered on a case-by-case determination, and specific evidence must be demonstrated to the court that it is needed.
- Temporary custody or visitation of a minor child (family or household member cases only) – courts often try to avoid making this part of a protective order case because there is a separate and distinct judicial process that deals with child custody. But a court may step in given the right circumstances.
- Granting sole possession of pets (family or household member cases only) – this form or relief was only recently added, and as you can it imagine can be hotly contested.
What does “no contact” mean?
The “no contact” provision of a Protective Order may seem simple. But what happens if the respondent encounters the petitioner at the local grocery store by accident? It’s technically contact. However, the Virginia Supreme Court clarified that accident contact does not violate a protective order. Elliot v. Commonwealth, 277 Va. 457 (2009).
How long does the Protective Order last?
The court has the authority to grant a Protective Order for two (2) years. After a hearing, the court may choose to extend the Order for an additional two (2) years if it finds the circumstances are appropriate. Of course, if specifically requested, a court has the authority to grant the Order for less than two (2) years.
If I win in Juvenile & Domestic Relations (or General District ) Court, is it over? (Appeals to the Circuit Court)
Keep in mind, Protective Orders originate in the JDR and General District Courts. Virginia law permits the respondent to appeal from a Protective Order to the Circuit Court. However, to appeal, a respondent must file the appeal within ten (10) days of the entry of the Protective Order. Therefore, a win in JDR or General District does not mean it’s over. However, while the case is pending an appeal, the Protective Order remains in effect.
What if, after a Protective Order is granted, the parties agree they don’t want the Order anymore?
To dissolve a Protective Order by agreement, the parties MUST go to court. Just because they agree to have contact, the respondent is still in violation of the court’s Order if he/she doesn’t request the court to dissolve the Order. Even if by consent, contact with the petitioner of a Protective Order can lead to a Protective Order violation, which is a Class I Misdemeanor for a first-time offense.
If you are a respondent to a Protective Order, you MUST have no contact with the petitioner until the court says otherwise. In cases where Protective Orders are sought and entered, clearly relationships are contentious. And while relationships may heal, they may also break down again. Just go to court before you do anything!
If a criminal charge is issued, should I still get a Protective Order?
Many Protective Order cases will track a criminal charge. Whether or not to get a Protective Order case even when criminal charges are pending is a personal decision and circumstances will differ. If you’re interested in learning more about Protective Orders, talk to a well-versed attorney to discuss it in detail.
Of course, if you have any questions about Virginia Protective Orders, feel free to give me a call at BenGlassLaw.
 This article pertains to permanent protective orders. There are also emergency protective orders and preliminary protective orders, which will likely proceed a permanent protective order. As you might imagine, they are shorter in duration, require different evidence, and have different forms of relief.