I. Protective Orders—A Shield Or a Sword?

A. Applicable Law and Procedure

There are three types of Protective Orders. There is an Emergency Protective Order (EPO), Preliminary Protective Order (PPO), and a Protective Order (PO).

The general understanding of a Protective Order is that it is a legal Order either issued by a Magistrate or a Judge to protect a person from physical abuse or threatening behavior by another person, usually a spouse or some other family member. A Protective Order can be issued in cases of domestic violence and stalking and should only be issued under the Virginia Statute to protect the health and safety of an abused person and/or his or her family or household members. Family abuse means any act involving violence, force or the threat of violence, including but not limited to any forceful detention, which results in bodily injury or places a person in reasonable fear of bodily injury. Family abuse can only be restrained by a Protective Order, if the abuser is a family or household member of the victim.
An EPO may order the abuser to stop the abuse or threatening behavior; prohibit the abuser from contacting the alleged victim either at home, at work, or by phone, directly or indirectly. It also may order the abuser to be removed from the marital residence or the home that they share with the victim and provide other relief as is necessary, such as possession of vehicles, or temporary custody or visitation, etc. An EPO may be obtained as soon as possible, after the victim is either assaulted or threatened with serious bodily harm and it can be issued by a magistrate, sheriff, or other law enforcement officer. The Magistrate is an officer of the Court who may issue
Protective Orders preliminary and under an emergency and Law Enforcement Officers may call the Magistrate or Judge for an EPO to be entered. The victim can also request that an EPO be entered in person at the office of the Magistrate or in the Juvenile and Domestic Relations District Court, in the City/County where the abuse occurred. Unfortunately, the abuser has to be served with a copy of the Order when entered so that they are aware of the conditions of the Order, or the Order will not be in effect. The Order is in effect as soon as it is served properly on the alleged abuser. An EPO lasts 72 hours or until the next scheduled Court date, whichever is later. They are entered with the exact termination date and time, depending on the Court's calendar and scheduled Court vacations, etc. Lawyers should advise the victims to petition for a Preliminary Protective Order before the EPO expires.
The Preliminary Protective Order like the EPO, is a legal order that stops the abuser or the threatening behavior, it also prohibits contact by the abuser directly or indirectly and can also order the abuser to be removed from the home and/or residence that is shared with the victim. In addition to what can be done with an EPO, a PPO, also may grant exclusive use and possession, but not ownership to a home and/or residence that is jointly owned and also grant temporary custody and visitation of the children that the victim and abuser have in common, and provides for the catch phrase, "other relief as necessary". The PPO must be obtained in a reasonable time; normally a short time after the abuse or threat has occurred. You do not have to receive an EPO to receive a PPO. The abuser does not have to be available in Court or notified of an exparte petition and request for a PPO and it can be done through intake at the Juvenile and Domestic Relations District Court in the County where the threat and/or abuse occurred. It can only last up to 15 days. As most of you know, a Preliminary Protective Order unusually lists a date and time for the Order to be terminated or continued, and then grants notice of the scheduled hearing date and time.
The final type of Protective Orders is the Protective Order, which does all of the above as discussed with the EPO and PPO. In addition the Permanent Protective Order may require the abuser to receive treatment or counseling. Virginia Code Section 20-103 which is the Pendente Lite Statute also allows for the Court in a divorce action or in an action for separate maintenance, filed in the Circuit Court, to grant exclusive possession of the home resided in by the married persons. That protection is temporary and also can only be considered in divorce actions. The Code section that allows for exclusive temporary possession of the residence for one of the parties to the divorce does not necessarily require a finding of abuse. I have successfully argued in different Courts, in fact, that evidence of adultery or desertion either financially or physically, should allow the Court jurisdiction under Virginia Code Section 20-103 to grant exclusive possession of a marital residence without the evidence of physical abuse. A Final Protective Order is only entered after both parties are given reasonable notice of a scheduled hearing and it can be extended for up to two years.

Most of the procedures that litigants ask of me in reference to Protective Orders indicate that most of them know of the procedures generally, and understand that they probably can receive a PO, as long as they can convince a magistrate or a Law Enforcement Officer or ultimately a Juvenile Court Judge that they have a reasonable fear of bodily injury, either by conduct or threats by the alleged abuser. Protective Orders do not cost anything and legal representation is not required. Protective Orders do not require criminal charges to be made, either at the same time or later. However, it is important to note that a Stalking Protective Order does require that a warrant for the stalker's arrest be obtained, so that the victim is eligible for a Stalking Protective Order, which will be discussed later on in this seminar.

Protective Orders from another State are valid and enforceable in Virginia, if they are registered in the appropriate Juvenile and Domestic Relations District Court where the victim is residing and/or visiting and a certified copy of that Order from out of State, needs to be registered. It is important that the victim that has received the Protective Order follow the terms and conditions of the Order and attend all hearings that are scheduled, report all violations of the Order by the abuser, and keep a copy of the Protective Order that has been issued and signed by the Judge on their person at all times.

Most importantly, it is important not to violate the Protective Order from the other side. Deliberate contact with the abuser should be avoided and eliminated. Procedurally, it is important that the details are specified, when describing the stalking and/or abuse, to include the dates and times and other details with accurate note taking. It is also important to describe exactly what the abuser has done, to demonstrate or describe any injuries received or property damage caused by the abusive act, and have witnesses available to collaborate what you have reported.

B. Uses and Abuses

Most clients understand that a Protective Order is a piece of paper and that it does not carry the respect of the abuser, even after being served by the Police. The Proctive Order is normally read by the Law Enforcement Officer, to the abuser, in total, at the time of service and normally the Law Enforcement Officer will ask the abuser if they have any questions or if they have any misunderstanding about the import of the Protective Order. Unfortunately, domestic violence is very common and does effect children more than anyone, along with the victims. Any type of violence, including a slap is disfavored in our society. Of course, it is not a natural part oflife and certainly, not married life. Women who are abused victims do not want to be beaten, they do not usually provoke this type of behavior, and do not deserve to be beaten. Abuse can occur in a same sex relationship also. My practice has been primarily focused on domestic relations and family law for almost 32 years, and Protective Orders did not exists in the form that they now exist. I believe that they were originally passed into Law in 1991. Many people abuse their need for Protective Orders to gain an advantage in a domestic or divorce situation. Most Judges are mindful ofthat abuse of the system. Most Judges do not extend the Protective Order for a two year period, as it can be extended or modified at a later date. Most Judges in the Richmond Metropolitan area extend a PO for a year or less. The entry of a Protective Order can be appealed by either party to the Circuit Court, which is a separate matter from a divorce that may be pending in the Circuit Court on behalf of the same parties. Some Judges in the Richmond Metropolitan area just routinely grant Protective Orders for two years, without a real finding of abuse or threat of reasonable bodily harm.

The Statute used to contain the adjective of "serious" bodily harm and that was later removed after one of two years of Judges trying to understand and determine what "serious" meant. A PO is granted not just based on bodily injury but also the threat of bodily injury or harm. There is also not a presumption of abuse. The Court should very carefully consider the entry of a Permanent Protective Order against an alleged abuser, unless there is evidence that is substantial that should allow for a PO for a two year period.

C. Ramifications, including special circumstances for Law Enforcement Personnel

Most local Sheriffs Department have taken the position that unless the Protective Order specifically states that the abuser is allowed to retrieve personal property or clothing from the home or residence or otherwise, then they can not be involved in that process and will not be involved in that process because it would authorize a violation to occur of the Protective Order. It has taken years for the Judges and Law Enforcement Officers to coordinate their concerns in reference to these types of ramifications and it is also important, to consider that a Protective Order does not stop violence necessarily nor does it shield violence, and in fact, at times it can generate violence. I will discuss, during my presentation, an exact case that I was involved in which generated extraordinary violence simply as a result of a Protective Order being issued and served the alleged abuser, when he felt at least, in his own mind, that no abuse had ever occurred. He actually committed multiple felonies and spent 20 years in a penitentiary because of his reaction and violation of the Protective Order when entered. In addition to the Preliminary Protective Order that can be entered, pursuant to Virginia Code Section 16.1-253, there is also a Preliminary Code Section in cases of family abuse under Virginia Code Section 16.1-253.1. The first Statute listed allows the Court, on its own Motion, to issue a Preliminary Protective Order, after a hearing only, to protective a child's life, health safety or other normal development, pending a final determination of any matter before the Court. Any matter can generate a Court's Motion for a Preliminary Protective Order under Virginia Code Section 16.1-253 and it may be issued exparte, as long as it is supported by an Affidavit or sworn testimony in front of a Judge and as long as the Judge believes that a child would be subject to a threat of life or health to the extent that any delay in the entry of an Order for an adversary hearing would be likely result in serious or waiting injury to the child's health. The Court shall state the basis for the Preliminary Protective Order in reference to a child under this Code Section and make a summary in reference to all allegations made and the Court must make a finding in writing. The Protective Order may only be issued for five (5) business days or less, and notice of a hearing involving all parties must be given at least 24 hours in advance of any hearing to the appropriate parties.

A Preliminary Protective Order in cases of family abuse under Virginia Code Section 16.1-253.1 can only be entered after the filing of a petition. The Court may not do so on its own Motion. Virginia Code Section 16.1-253.4, is interesting, in that a District Court Judge, a Circuit Court Judge, a Domestic Relations Judge or Magistrate may issue a written or oral exparte Emergency Protective Order when a Law Enforcement Officer or other alleged abusive person asserts under oath to that Judge or Magistrate that abuse has occurred. I do not know how an Oral Order can be entered nor do I know how an Oral Order can be served, and I believe it would be easily defended if it was simply an Oral Order. Virginia Code Section 20-103 states that in all suits for divorce or separate maintenance, the Court may under Subsection A, grant exclusive use and possession of the family residence during the pendency of this suit. As discussed earlier, the ability by the Court to Order that, does not require any evidence of abuse. Subsection B states that, in addition to the terms provided in Subsection A, a Court may grant exclusive use and possession of a residence, if there is a showing of a reasonable apprehension of physical harm to a party by the party's family or household member as defined in Virginia Code Section 16.1-228, then the Court may enter an Order excluding the party's family or household member from the jointly owned or jointly rented dwelling. If the Order is entered exparte, then the Order shall not exceed 15 days from the date the Order is served, which again, is different from the Emergency Protective Order or temporary Protective Order entered in the Juvenile Court or by the Magistrate, as it is 15 days from the date entered before a hearing is held, and also the Order can provide in its own terms for an extension of time beyond the 15 days to be effective automatically. Virginia Code Section 18.2-60.4, makes it a class 1 Misdemeanor to violate any provision of a Protective Order, and Virginia Code Section 19.2-152.9 states that as long as a petition has been filed, alleging that there has been abuse, stalking or criminal offense resulting in a serious bodily injury to the petitioner, and the allegation is made within a reasonable period of time, and further, that a warrant has been issued for the arrest of the alleged abuser, then the Court may issue a Preliminary Protective Order. Virginia Code Section 19.2-152.10, indicates that Protective Order may be issued to protect the health and safety of any petitioner and family or household members, upon the issuance of a warrant for criminal offense resulting in serious bodily injury or in violation of Virginia Code Section 18.2-60.3, and a hearing must be held pursuant to Subsection D of Virginia Code Section 19.2-152.9 or a conviction of that criminal offense for a violation of 18.2-60.3 or a criminal offense resulting in serious bodily injury to the petitioner only. A Protective Order issued under this Code Section may prohibit criminal offenses in the future, prohibit contacts by the respondent with the petitioner or family or other household members as is necessary, to protect the health and safety of such person, and any other relief necessary to prevent future criminal offenses including injury to person or property, acts of stalking, or communication or any contact of any kind and further these Protective Orders may be issued for up to two (2) years.

D. Defending Against Them—5th Amendment Issues

Representing a respondent against a Petition for a Protective Order by a spouse or other family member is very difficult. Often, the evidence is simply a "he said" "she said" dispute and most Courts believe the victim over the alleged abuser or respondent. The Standard of Proof is only a preponderance of the evidence. If there is an attending criminal charge, it is probably better not to have the respondent testify in a civil action to defeat the entry of a Protective Order, since that evidence can then be used against the respondent in the criminal matter, which would violate his 5th Amendment rights to remain silent. Certainly, knowing the criteria that Judges use in each individual jurisdiction, being familiar with procedures and the general nature of each Judge within each jurisdictions as to their past history in entering or denying Protective Orders, and most importantly, knowing what acts trigger the issuance of a Protective Order in every case by certain Judges are paramount considerations when defending against the entry of Protective Orders. Reminding the Court continuously, that the extension of up to two (2) years is a discretionary act and it is not mandated or required, and further, if a divorce is pending, trying to convince counsel for the alleged victim to replace a Protective Order with a no contact Order in a divorce action would be preferable to both parties, is an appropriate resolution.