Misha Lopez explains the different types of Virginia protective orders and where to file them.
Requesting or defending against a protective order can be a complicated and confusing process. To start, you have to file your request in the correct court. Once the correct court is determined, you must choose one of three types of protective orders. Today’s post seeks to explain the basic process and differences between emergency protective orders and preliminary protective orders, whether you are requesting protection or fighting entry of an order.
Where to File a Virginia Protective Order
Protective orders can be filed in two general district courts:
- Juvenile & Domestic Relations District Court (J&DR)
- General District Court (GDC)
If the injuries or threats were made by a “family or household member”, then the case will need to be filed in the J&DR. “Family or household members” is defined by the Code of Virginia and is fairly broad.
On the other hand, if the injuries or threats are made by someone who does not fall within the “family or household member” definition, then the case must be filed in GDC. Identifying the court in which you need to file is important because filing in the wrong court can result in the case being dismissed or transferred to a different court, delaying the process.
The Petitioner may seek one of three types of protective orders:
- Emergency Protective Orders
- Preliminary Protective Orders
- Permanent Protective Orders
Today I will discuss emergency protective orders and preliminary protective
orders. Check back soon to learn about permanent protective orders.
Emergency Protective Orders
The first type is an emergency protective order. Virginia Code Sections 19.2-152.8 (non-family/household member cases) and 16.1-253.4 (family/household member cases) set the standards for when an emergency protective order may be received.
Sections 19.2-152.8 and 16.1-253.4 limit emergency protective orders to 72 hours. There are two types of circumstances that justify issuance of an emergency protective order. One circumstance is for a petitioner to allege under oath that he or she was either threatened or injured by the respondent, and a J&DR or GDC judge must find “there is probable danger” of future threats or harm to the petitioner.
An emergency protective order may also issue if a judge finds the respondent has been charged with “any criminal offense” that involves violence or threats. Sections 19.2-152.8 and 16.1-253.4 also create presumptions in favor of issuing an emergency protective order when the first method above is used by the petitioner.
Preliminary Protective Orders
The second type of protective order is a preliminary protective order, which is defined by Virginia Code Sections 19.2-152.9 (non-family/household member cases) and 16.1-253.1 (family/household member cases). A preliminary protective order is very similar to an emergency protective order. A GDC or J&DR judge may issue a preliminary protective order when a respondent has been charged with a threat or an act of violence. One key difference between emergency and preliminary protective orders is the language in Sections 19.2-152.9 and 16.1-253.1 that requires a petitioner to be, or have been, subjected to violence or threats “within a reasonable period of time.”
Like emergency protective orders, preliminary protective orders are temporary in nature, and they are routinely issued prior to a full hearing on a permanent protective order. Because preliminary orders are entered in anticipation of a future hearing, Sections 19.2-152.9 and 16.1-253.1 both require that the hearing on the permanent protective order be held within 15 days of the entry of a preliminary protective order. However, a preliminary protective order may stay in effect up to six months after its initial entry under certain circumstances, and generally, preliminary protective orders will be extended to cover the entire period, but not to exceed six months, between the issuance of the preliminary protective order and the permanent protective order.
Get Greenspun Shapiro PC on Your Side Today
Whether requesting or fighting a protective order, there are high stakes for both parties. It is vital to make sure your case is presented fully and accurately to a judge so they may make the proper determination. If you are party to a protective order, call a trusted Fairfax, VA attorney at Greenspun Shapiro PC. We routinely assist in requesting and defending protective orders, and we are ready to help you as needed. You can schedule a meeting with one of our attorneys by calling 703-352-0100.