What should you do if you have been served with a Protective Order?
If you’ve been served with a protective order in Virginia, it is critically important that you fully understand the legal issues you are facing.
In Virginia, protective orders are civil matters where one individual (usually referred to as the “petitioner”) is claiming the need for protection from another individual (usually referred to as the “respondent”). Criminal charges are not needed for a protective order to be sought, though criminal charges do often go together with protective orders, depending upon the incident which led to the protective order being sought.
Protective order proceedings in Virginia are either heard in the Juvenile and Domestic Relations District Court or the General District Court, depending upon the relationship between the petitioner and respondent. If the protective order is sought by a family member, then the protective order matter will be heard in the Juvenile Court.
A “family member” is defined as someone who is the respondent’s spouse, ex-spouse, parent, child(ren), step-parent, step-child(ren), sibling, half-sibling, grandparent, grandchild(ren), anyone with whom the respondent has a child in common regardless of residence; in-laws who live in the same home; and anyone with whom the respondent cohabitates or who have cohabitated within the past year and their children. All other others of protection are heard by the General District Court.
Initiating a Protective Order
Both family and general protective orders are usually started one of two ways:
1) By an emergency protective order (EPO), usually following an incident or,
2) Via a petition for a preliminary protective order (PPO) filed by the petitioner in the proper court.
To seek an EPO, the petitioner (or law enforcement officer on the petitioner’s behalf) must state under oath that they have been subjected to an act of violence, force, or threat. A judge or magistrate must then find that there is probable danger for other acts or that a warrant has been issued for the respondent. If this occurs, an EPO will be issued. EPOs are temporary, lasting for three days after they are issued before expiring. For the protective order to remain in effect, alleged victim would need to file a petition for PPO with the court. Neither EPOs nor PPOs are not considered evidence of wrongdoing by the respondent.
Once an EPO or PPO is entered, the respondent’s information is sent to the Virginia Criminal Information Network where law enforcement receives it and then serves the order on the respondent (usually via Sheriff). The order is considered effective once served and any violation of the order may be deemed contempt of court and punished appropriately. The order served on the respondent will provide a hearing date that the permanent protective order will be argued to the Court. If you are served with a protective order, you should contact an experienced Virginia protective order defense lawyer right away. Protective orders are serious matters which can have lasting consequences.
Protections Provided by EPOs and PPOs
Both an EPO and PPO provide protections that are mostly the same. Either order will:
- Prohibit any acts which may result in injury to people or property,
- Prohibit the respondent from contacting the petitioner or petitioner’s family (as the court deems necessary),
- Prohibit the respondent from communicating with the petitioner in anyway, and
- Grant the petitioner possession of any companion animal if necessary.
In cases where the petitioner is a family member of the respondent, the following added temporary protections can be granted:
- Grant temporary possession of a residence,
- Require that the respondent maintain utility services for the household,
- Grant temporary possession of a jointly owned vehicle, and
- Require that the respondent to provide suitable alternative housing for the family/household members.
Permanent Protective Orders
At the full hearing on the petition for protective order, the court may issue a permanent protective order is it finds that the petitioner has proven the that they are or have been subjected to an act of violence, force, or threat by a “preponderance of the evidence.” This means that the petitioner has convinced the judge that there is a greater than 50% chance that their claims are true.
If a permanent protective order is granted, it may be issued for a specified period and remain in effect for a maximum of two years. There are also some instances where a protective order can be extended or remain in effect longer than this maximum. If a permanent protective order is granted, the order gets served on the respondent and registered with Virginia Criminal Information Network. Federal law requires that protective orders from other states/jurisdictions also be recognized in Virginia.
The protections offered by a permanent protective order are like those provided for in an EPO or PPO. In addition, in cases where the petitioner is a family member of the respondent, a permanent order can also require respondents to take part in treatment, counseling, or other programs required by the court, make temporary custody or visitation decisions regarding a minor child, and prohibit the respondent from owning a firearm.
Defending Protective Orders
While many protective orders are sought throughout Virginia for valid reasons and in complete warranted situations, it is an unfortunate reality that protective orders can become weapons for one party to use against another. It is not as uncommon as one would like to believe for a protective order to be sought as a means of retaliation for some perceived slight, or for a “victim” to allege a protective order is necessary to gain leverage in a custody or divorce matter. Our protective order defense attorneys have experienced this firsthand and can help you to sort fact from fiction when you appear in Court.
It is your legal right to defend yourself against the petition and an experienced protective order attorney can work with you to determine the evidence you will need to secure and present to the court to prove your side of the story. This evidence can take the form of photos, videos, phone records, witness statements, text messages, social media posts, and any other information that could disprove the allegations against you.
If you are served with an EPO or PPO, you SHOULD:
- Read the full order thoroughly to be certain you understand,
- Abide by the terms of the order fully and completely,
- Take note of your court date and ensure you do not miss it,
- Seek the advice and services of a protective order defense attorney right away. Because protective orders are civil matters, you will not be entitled to court appointed counsel or a public defender.
If you are served with an EPO or PPO, you SHOULD NOT:
- Destroy any evidence that may exist (deleted messages, posts, etc., only appear suspicious in court),
- Try to talk it out with the petitioner (in doing so, you may violate the order),
- Disregard the order, or
- Try to work around the order in any way.
If the court finds that a permanent protective order is called for, there may still be options. If you are within the time limit, you can appeal the order to the circuit court (though the order will remain in effect pending a new hearing). You may also have the option to dissolve the protective order earlier than its end date if the court sees fit to do so. While there may be options post entry, it is always best to hire an experienced protective order defense lawyer as soon as you have been served with the EPO or PPO.
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