Protective Orders
A. There are a number of different types of Protective Orders that can be issued or extended by the J&DR Court:
1) If there has been a case of some type filed with the Court, the J&DR Court may issue a Protective Order, after a hearing, if necessary to protect a child's life, health, safety or normal development. Notice of the Protective Order hearing must be provided to the parties involved in the case. The Order will expire when the final Order is entered in the case. See Section 16.1-253 (A).
2) The Court may issue a Preliminary Protective Order, without the other party being present, if there is sufficient evidence to find that a child would be subjected to an imminent threat to life or health. The Court must find that delaying the hearing so all parties can be present would likely result in serious or irremediable injury to the child's life or health. See Section 16.1-253(B). If the Court issues this type of Protective Order, the Court is required to give notice to all of the parties and to have a hearing to review the Order.
Petitions for these types of Protective Orders must be obtained through the Intake Office. Most of these Petitions are filed by the Department of Social Services. A Guardian ad litem will be appointed for the child. Parents have a right to hire an attorney or to see if they qualify for Court appointed counsel.
3) The Magistrate can issue an Emergency Protective Order when there is evidence that a family member has been subjected to family abuse. Section 16.1-228 has defined “family abuse” to mean “any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury and that is committed by a person against such person's family or household member. 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.”
- Section 16.1-228 defines a family member as (i) the person's spouse, whether or not he or she resides in the same home with the person, (ii) the person's former spouse, whether or not he or she resides in the same home with the person, (iii) the person's parents, stepparents, children, stepchildren, brothers, sisters, half-brothers, half-sisters, grandparents and grandchildren, regardless of whether such persons reside in the same home with the person, (iv) the person's mother-in-law, father-in-law, sons-in-law, daughters-in-law, brothers-in-law and sisters-in-law who reside in the same home with the person, (v) any individual who has a child in common with the person …, or (vi) any individual who cohabits or who, within the previous 12 months, cohabited with the person, and any children of either of them then residing in the same home with the person.
- If you want the Court to issue a Protective Order for family abuse, whether the magistrate entered an Emergency Protective Order or not, you must contact the Intake Office to obtain a Petition. You can get a Petition in the county or city where the act of family abuse occurred or in the county or city where the victim resides. Once the Intake Office issues the Petition, you will need to take the petition to the J&DR Clerk’s Office. The Court will schedule a hearing as soon as possible. At most initial hearings, the Petitioner is the only party present. There are occasions, however, when the Court will require all parties to be notified of the hearing. If the Court issues a Preliminary Protective Order, the Court must provide notice to all parties and set the matter for a full hearing within 15 days.
- If the Court enters a final Protective Order, the Court Order may include one or more of the following conditions:
1.) Prohibiting acts of family abuse or criminal offenses that result in injury to person or property;
2.) Prohibiting such contacts by the respondent with the Petitioner or family or household members of the Petitioner as the court deems necessary for the health or safety of such persons;
3.) Granting the Petitioner possession of the residence occupied by the parties to the exclusion of the Respondent; however, no such grant of possession shall affect title to any real or personal property;
4.) Enjoining the respondent from terminating any necessary utility service to the residence to which the Petitioner was granted possession pursuant to subdivision 3 or, where appropriate, ordering the Respondent to restore utility services to that residence;
5.) Granting the Petitioner temporary possession or use of a motor vehicle owned by the Petitioner alone or jointly owned by the parties to the exclusion of the Respondent; however, no such grant of possession or use shall affect title to the vehicle;
6.) Requiring that the Respondent provide suitable alternative housing for the Petitioner and, if appropriate, any other family or household member and where appropriate, requiring the Respondent to pay deposits to connect or restore necessary utility services in the alternative housing provided;
7.) Ordering the Respondent to participate in treatment, counseling or other programs as the court deems appropriate; and
8.) Any other relief necessary for the protection of the Petitioner and family or household members of the Petitioner, including a provision for temporary custody or visitation of a minor child.
- The final Protective Order may be issued for a specified period of time up to a maximum of two years. The Protective Order shall expire at 11:59 p.m. on the last day specified. Prior to the expiration of the Protective Order, a Petitioner may file a written motion requesting a hearing to extend the Order. If the Petitioner was a member of the respondent's family or household at the time the initial Protective Order was issued, the Court may extend the Protective Order for a period not longer than two years to protect the health and safety of the Petitioner or persons who are family or household members of the Petitioner at the time the request for an extension is made.
4) The Magistrate can issue an Emergency Protective Order if the Petitioner is, or has been, within a reasonable period of time, subjected to an act of violence, force, or threat by someone who is not a family member. See 19.2-152.9. If the person who committed the act of violence was a juvenile, the Petition for a Permanent Protective Order must be filed with the Juvenile Intake Officer and must be heard by the J&DR Court.
- Once the Intake Office issues the Petition, you will need to take the petition to the J&DR Clerk’s Office. The Court will schedule a hearing as soon as possible. At most initial hearings, the Petitioner is the only party present. There are occasions, however, when the Court will require all parties to be notified of the hearing. If the Court issues a Preliminary Protective Order, the Court must provide notice to all parties and set the matter for a full hearing within 15 days.
B. When does a Protective Order become Effective?
- Even though a Judge or Magistrate has signed a Protective Order, the Order does not go into effect until it has been delivered, or served, to the person you are filing against. If the person is in the Commonwealth of Virginia and you give the Court the person's correct home and work address and phone numbers, the Sheriff's Department should be able to serve the person. However, if the person to be served is outside of Virginia, the Clerk will have to contact the Sheriff's Office in the city or county where the person lives to try and get the Order served. You will need to have the right address for the person, otherwise, the person cannot be served and the protective order will not go into effect.
- Keep the protective order with you at all times. If the person violates the protective order by not obeying the Order, contact the police or sheriff’s department. The person can be arrested for not obeying the order. Remember that a protective order is only a piece of paper. It is not a bodyguard. If you are in danger, call 911.
C. What Information should the Petitioner take to file for a Protective Order?
* A picture ID of yourself, which can be a driver's license, work identification tag or military ID.
* A copy of the Emergency Protective Order if one was issued.
* Full name(s) and date(s) of birth for any family members you also want to be protected by the Protective Order.
* The following information about the person from whom you are seeking protection;
The name and address of the person.
Any nicknames or aliases of the person.
Home, work, cell phone and pager numbers. Address for home, work and places frequented.
Age, height, weight, eye color, hair color, distinguishing marks.
Social Security Number.
Recent photograph of that person if available.