By Katarina Nguyen

A protection order is the same thing as a restraining order in that both are designed to protect you against an abuser. In DC, a protection order requires that the person who is subject to the order, the respondent, stay away from you, the petitioner. However, a protection order can provide many other types of protection and relief, as explained in Section II below. You can obtain a protection order if the “respondent has committed or threatened to commit one or more criminal offenses against [you]” (see DC Code Section 16-1003(a)). There is no filing fee to request and obtain a protection order.

I. Types of Protection Orders

DC has three types of protection orders: the first is a Civil Protection Order, which is used when the person threatening or committing a crime against you is a family member, roommate, someone you dated or had a sexual relationship with, someone with whom you share a child, spouse, ex-spouse, or someone who dated your current boyfriend, girlfriend, or spouse (see DC Code Section 16-1001(6)-(9), (12), and DC Code Section 16-1003(a)). This type of protection order is also used in cases of stalking, sexual assault, and sexual abuse. A Civil Protection Order can last up to one year.

The second type is a Temporary Protection Order, which offers much of the same protections of a Civil Protection Order, but only lasts for up to two weeks (see DC Code Section 16-1004(b)). Because it is granted ex parte, or without the abuser present, this order is meant as a placeholder while you schedule and hold a hearing for the Civil Protection Order (though if the respondent fails to show up to the hearing, then the Civil Protection Order can be granted ex parte as well).
 
The final type is an Emergency Temporary Protection Order, which is similar to a Temporary Protection Order, except that it lasts for only five days (see DC Police’s Guide on Protection Orders). Only a police officer and an advocate from Survivors and Advocates for Empowerment (SAFE) can request this type of protection order.

II. How a Protection Order Protects You

A protection order provides a variety of protections (see DC Code Section 16-1005(c)). The respondent can be ordered to:

• Give up possession of any firearms, restricted from carrying, using, or purchasing a firearm;
• Stop committing or threatening to commit crimes against you and any other person named in the petition ("protected person");
• Stay away from you and any other protected person, including at specific locations
• Refrain from contacting with you and any other protected person;
• Refrain from entering the home, or vacate the home if you both live together and you own/rent or jointly own/rent the home;
• Participate in psychiatric or medical treatment or counseling for, parenting, drugs, alcohol, domestic violence, and so on;
• Pay your attorneys' fees and court costs;
• Return personal property owned by you alone or jointly with the respondent, including keys;
• Provide you with financial assistance or spousal support for your expenses, including rent, mortgage, and bills;
• Pay you child support;
• Keep you and/or your children on his/her health insurance plan; and/or

• Reimburse you for property damage, medical costs, and other expenses you incurred due to the respondent's actions.

 
In addition to the above, the Court could also grant the following relief to the petitioner:

• Grant you temporary custody of the children and, assuming the respondent shows that visitation will not hurt the children's emotional development or endanger them (see DC Code Section 16-1005(c-1)), arrange for a visitation schedule that protects your safety;
• Order the police to assist in enforcing the terms of the order, such as by having them escort you to collect personal belongings or to collect the keys from the respondent for you;
• Grant you custody of a pet that belongs to you, the respondent, or lives in either household; and/or

• Order any other relief that you show you need to protect you from harm.

III. Filing for a Protection Order

A. Eligibility

To qualify for a protection order in DC, you must live or work in DC and at least one incident must have occurred in DC (see DC Code Section 16-1006). A protection order granted in DC is effective in all states in accordance with the U.S. Violence Against Women Act, which applies to all protective orders, regardless of whether the petitioner is a man or woman. Depending on the state, you may have to register your DC protection order with the court to make enforcement easier for the state. However, federal law requires the states to uphold a DC protection order regardless of whether it has been registered. If you move, you should also notify the DC court of your new address.
 
The time limit for filing for a protection order is two years. However, it is recommended that you file as soon as possible as judges view a long delay in filing less favorably. This is because the court will think that you were not really in danger, or else you no longer believed you were in danger, if you waited too long after the threat or crime. The judge will ask you why you waited so long after receiving the threat or injury to file for a protection order. If the judge is not satisfied with your reasons, he or she is more likely to deny your petition.

B. Evidence Gathering

When seeking a protection order, be sure to have the abuser's work and home address, phone number, a physical description, and any aliases he or she uses. Also bring any evidence of harassment, stalking, or abuse inflicted upon or threats made to you or your children that you collected, such as police reports, hospital records, pictures, journals, notes, letters, emails, text messages, recordings, 911 calls, damaged clothing or objects, and so on. You should also contact any witnesses and ask if they would be willing to testify on your behalf at the Civil Protection Order hearing.
 
If seeking temporary custody of a child, have with you the addresses the child has lived at for the past five years and with whom the child lived at each address. You will also need to know if there is any pending court case concerning custody of the child and whether you know of any other person besides yourself or the respondent who claims to have custody of the child.
 
If seeking temporary child support from the respondent, you must bring proof of your income and the respondent's income to the Civil Protection Order hearing. This includes two recent pay stubs, tax returns for the last two years, or a completed financial statement. If there are any other child support orders that affect you or the respondent, then bring copies of them as well.
 
If seeking to have the respondent vacate your home, you must bring the lease or deed to the Civil Protection Order hearing. In addition, if seeking to have the respondent reimburse you for medical costs, property damage, and other expenses you incurred due to his or her actions, bring those bills, invoices, receipts, or estimates to the hearing.

C. Starting the Process - The Temporary Protection Order

To file for a protection order, you must go to the Domestic Violence Intake Center and fill out the Petition and Affidavit for Civil Protection Order form (available here). Because the filing process can take several hours, it is recommended you have plenty of time to arrive at court before it closes at 4:00 pm. If you have an emergency situation, including if the Domestic Violence Intake Center's offices are closed, you can contact the Domestic Violence Unit at Police Headquarters.
 
If filing with the Domestic Violence Intake Center, you can choose whether to file for just a Civil Protection Order or also a Temporary Protection Order, which must be filed with the Civil Protection Order. An intake officer will assist with filling out the paperwork. When writing about the incidents, use descriptive words and include as much details, times, and dates as possible. If you and the respondent share children who live with you, you can also file for child support. When you are finished with the paperwork, a court advocate will talk with you about the hearing and can help provide other resources, including counseling, emergency funds, and shelter housing.
 
If filing for a Temporary Protection Order, you will have a hearing in front of a judge that day. You must show the judge that you are “is immediately endangered by the respondent” (see DC Code Section 16-1004(b)(1)). For instance, if being threatened with death or bodily harm, that would be considered immediate danger. In cases of stalking, if the behavior is continuous or escalates in severity, this would constitute immediate danger. If you have a message from the respondent saying he or she is coming to find you, combined with a threat of committing a crime against you, that could also be a case of immediate danger. If granted, the Temporary Protection Order will remain in effect until the Civil Protection Order hearing, or up to two weeks. If denied, you will still have the Civil Protection Order hearing scheduled.

D. Service

Regardless of whether a Temporary Protection Order is granted, during the period between filing and the Civil Protection Order hearing, the respondent must be served. Service, or delivering the petition to the respondent, cannot be done by you or any other party to the petition (see DC Code Section 16-1004(d)). You can arrange to have a non-party person who is 18 years of age or older to deliver the petition to the respondent. This person must sign a Return of Service confirming the petition was delivered, which you must bring to the hearing. You can also hire a private process server or request that the police serve the petition upon the respondent.

E. The Civil Protection Order Hearing

At the Civil Protection Order hearing, if the respondent does not appear at court and you have proof that the respondent was properly served, then you can obtain a default ruling if the judge finds there is reasonable belief that the harm you stated in the petition occurred. However, if the judge finds that the respondent was not properly served, you can ask to continue the case to give you time to serve the respondent again. If you have a Temporary Protection Order, you can also ask that it be extended until the continued hearing date.
 
If the respondent does appear, there is a negotiation requirement in DC where you meet with an attorney negotiator to see if you and the respondent can reach an agreement about the Civil Protection Order, such as if the respondent consents to the protection order. If an agreement is reached, the judge will review the agreement and make sure that all parties understand the details of the agreement. The judge will then sign the agreement, which will last for one year. On the other hand, if no agreement is reached during negotiations, you will present your evidence and any witnesses, including yourself, of the injuries or threats, and the respondent will submit evidence in defense. The judge will then decide whether to grant the Civil Protection Order if there is good cause to believe that the respondent committed or threatened to commit a prohibited act against you. If the judge states that a decision to grant or deny your petition will be made at a later date, be sure to ask that the Temporary Protection Order be extended until such time.

F. After the Hearing

If the judge denies your petition for a protection order, you should contact a domestic violence resource center to get advice on staying safe. You can also reapply for a protection order if a new violation is committed or a threat to commit a crime is made against you. You may also consider appealing the judge's decision.
 
If the judge grants your Civil Protection Order, you should review the order and make sure there are no mistakes (if there are, see the clerk about correcting the order). Then make several copies, one to keep with you and the others to give to others, such as the front desk of your workplace, your children's school or daycare, sympathetic neighbors, and so on. Include a picture of the respondent with the copy.
 
While the protection order is in effect, if you are a renter, you can ask your landlord to change the locks if you make the request in writing (see DC Code Section 42-3505.08). If the respondent is a tenant in your apartment, you will have to include a copy of the protection order that states the respondent must stay away from you. The landlord will have five business days to change the locks to all entrance doors to your apartment. While the landlord pays the initial cost, you may have to reimburse the landlord if, within 45 days, you receive a bill with proof of the cost. There may also be an administrative fee associated with the lock change that you may have to pay as well if, for instance, your lease provides that the landlord can change the locks upon request for a fee.

IV. Violations of the Protection Order

If you discover that the abuser has violated the protection order, contact the police and provide any evidence of the violation. This evidence can include a journal or log, voicemail messages, letters or envelopes, cell phone bills, emails, and pictures. If there are witnesses to the violation, ask if they would be willing to testify at a hearing. If you were injured as a result of the violation, go to the hospital immediately afterwards, inform the staff that you have a protection order, and take pictures of the injuries. One could be held in contempt of court for violating a protection order, which is punishable by a $1,000 fine and/or up to 180 days imprisonment (see DC Code Section 16-1005(f)-(h)).
 
You can also notify the court of a violation and bring proceedings against the respondent yourself by filing a motion to adjudicate civil contempt or a motion to adjudicate criminal contempt. You would file a motion for the former if the respondent did something such as failing to pay ordered child support. You would file a motion for the latter if the respondent harmed or threatened to harm you.

V. Extending, Modifying, or Vacating the Protection Order

Prior to the expiration of the protection order, you can file a motion to extend the protection order (see DC Code Section 16-1005(d)). At the same time, the respondent (and you) can file a motion to vacate the protection order if he or she can argue there is good cause as well. In addition, you can file a motion to change the terms of the protection order. If filing any of these types of motions, you must show “good cause” to the court to extend, modify, or vacate the protection order. Any motion you file must be served on the respondent in the manner explained previously.

VI. Resources

For additional help, see the DC Police's Guide on Protection Orders and Pamphlet, the DC Coalition Against Domestic Violence and Women Empowered Against Violence Pamphlet, the DC Courts Guide on Domestic Violence Matters, and Womens Law Guide on Civil Protection Orders.
 
If you need assistance filing a protection order or representing you in court, please feel free to contact us for a free phone consultation.

By: Melanie Eisenhart

Understanding how a court will evaluate a petition for modification to a custody order can make a significant difference in the outcome of that court’s ruling. In Virginia, courts initially decide custody based on what is in the best interest of the child. To determine this, a judge will consider the following ten factors on a case-by-case basis from Va. Code Ann. § 20-124.3: 

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs. 
2. The age and physical and mental condition of each parent. See Huck v. Huck, No. 1604-14-1, 2015 Va. App. LEXIS 184, at *6 (Va. Ct. App. June 2, 2015) (unpublished) (comparing the evidence related to the mental health of both parents, including the father’s anger and bullying and the mother’s anxiety and depression, the court refused to favor one parent over the other in consideration of this factor). 
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child. 
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members. See Forbes v. Forbes, No. 1081-12-1, 2013 Va. App. LEXIS 176, at *6 (Va. Ct. App. June 11, 2013) (unpublished) (denying the father’s motion to modify custody because the mother had a family support system living nearby).
5. The role that each parent has played and will play in the future, in the upbringing and care of the child. 
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child.  
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child.  
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference. See Sims-Bernard v. Bernard, No. 2090-12-2, 2013 Va. App. LEXIS 282, at *10 (Va. Ct. App. Oct. 8, 2013) (unpublished) (refusing the mother’s request for custody modification because, though her daughters stated a preference to living with their mother, this was not in their best interest due to the mother’s “mental abnormalities” in attitude towards their father).
9.   Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; See Craven v. Williamson, No. 1023-11-4, 2012 Va. App. LEXIS 2, at *3 (Va. Ct. App. Jan. 10, 2012) (unpublished) (determining that evidence presented at trial indicated a history of abuse when the father frequently lost his temper and yelled at his children, in addition to him “stomping” on one child in anger). 
10. Such other factors as the court deems necessary and proper to the determination. 

Once a custody order is entered, the parent seeking modification ordinarily must establish both that the circumstances have materially changed since the last custody order and that the best interests of the child require a modification of custody.[1] To determine this, the court looks at the evidence presented and compares it to the ten best interest factors discussed above.[2] Most importantly, while making this decision courts are not required to weigh each of the ten factors equally or to elaborate on the amount of weight or consideration it gives each factor.[3] However, the court’s findings must be supported by evidence on the record or this will be considered an abuse of the court’s discretion.[4]

An example of how courts may evaluate the ten best interest factors independently and in conjunction with one another can be found in Bostick v. Bostick-Bennett.[5] In this case, the court compared the father’s degree of parental stability (factor three) with the mother’s ability to actively support the child’s relationship with the other parent (factor six), and initially granted sole custody to the father because it found that he could offer the child a more stable living environment.[6] The mother, though not unfit, could not provide the same level of support to the child as the father; however, the court allowed for visitation to foster and encourage the relationship between mother and child.[7] A short time later, when the father petitioned the court to relocate his child to North Carolina, his request was denied because he failed to prove a material change in circumstances that would warrant the child’s removal from Virginia.[8] Looking at the evidence presented, the court concluded that maintaining a relationship between the child and her mother would be in the best interest of the child, and that this relationship would be jeopardized if the father was granted his request to move to another state.[9]

Material Change in Circumstances

While the ten statutory factors are important to the modification of a custody order, a petitioner must first show the occurrence of a material change in circumstances.  Next the petitioner should focus on these factors to demonstrate that a modification of custody is in the best interest of the child.

Virginia Code § 20-108 sets out one way for courts to determine if a material change has occurred by stating that the “intentional withholding of visitation of a child from the other parent without just cause may constitute a material change in circumstances justifying a change of custody in the discretion of the court.” A change in circumstances is not limited to negative events that may occur in the home of the custodial parent, though.[10] A material change may also broadly include changes that the child experiences, such as their level of maturity or any special educational needs, or may include positive changes to the circumstances of the noncustodial parent, such as remarriage or the increased ability to provide a stable home environment.[11] Ultimately, however, no change in custody will be allowed if the change in circumstances is not in the best interest of the child.[12]
 
In Haring v. Hackmer,[13] the mother alleged a material change in circumstances occurred that would justify modification to the custody order that originally granted the father sole custody of their child. Namely, the mother argued that the father’s circumstances had declined when he remarried, moved his daughter to a new school due to relocation within the state, his financial situation had deteriorated, he had an unstable employment history, the daughter's mental and physical health had deteriorated since living with him, he allowed his daughter's medical insurance to lapse, and had not ensured that their daughter received proper medical and dental care.[14] Conversely, the mother alleged that her circumstances had improved because she relocated within the state and had established a successful insurance business.[15] Considering the evidence presented at trial, the court found no material change in circumstances, and the mother’s motion for modification was denied.[16]

Courts have also found that the following conditions do not indicate a material change in circumstances:

• Rude behavior or inefficient communication regarding visitation scheduling between parents. Thurmond v. Gropper, 45 Va. Cir. 168, 172 (Va. Cir. Ct. 1998). 
• The custodial parent’s denial of visitation or the child’s statement that he does not want to return to the custodial parent’s home.  Heretick v. Cintron, No. 1377-00-2, 2001 Va. App. LEXIS 172, at *9 (Va. Ct. App. Apr. 3, 2001) (unpublished).
• A change in work schedule allowing a parent to work from home and care for the child, an increase in the length of a subsequent marriage, or the custodial parent’s home being located in a neighborhood with few children. Humphries v. Davis, No. 0775-98-2, 1998 Va. App. LEXIS 635, at *4-5 (Va. Ct. App. Dec. 8, 1998) (unpublished). 

In contrast, courts have found that the following conditions do indicate a material change in circumstances:

• Making and then suddenly canceling plans to relocate to another country at the detriment of causing an unstable living environment for the child. Laing v. Walker, No. 1693-94-3, 1995 Va. App. LEXIS 592, at *5 (Va. Ct. App. July 18, 1995) (unpublished). 
• Showing by the noncustodial parent can show that the remarriage of the noncustodial parent has provided for a more stable living environment, that the child has become increasingly withdrawn since living with custodial parent, and that the child preferred to live with the noncustodial parent. Turner v Turner, 3 Va. App. 31, 34, 348 S.E.2d 21, 23 (1986).
• Failure by the custodial parent to sufficiently support the children when their grades declined, when compared to the noncustodial parent who frequently met with the children’s teachers. Schoonover v. Schoonover, No. 0554-99-3, 1999 Va. App. LEXIS 518, at *5-6 (Va. Ct. App. Sept. 7, 1999) (unpublished). 

Without a material change in circumstances and evidence that a change in custody is in the best interest of the child, a court will not grant the petition to modify custody. 

-----
[1] Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983).
[2] Cintron v. Long, No. 2169-99-2, 2000 Va. App. LEXIS 487, at *11 (Va. Ct. App. July 5, 2000) (unpublished). See generally Mason v. Moon, 9 Va. App. 217, 220, 385 S.E.2d 242, 244 (1989) (noting that “in custody disputes between a natural parent and a nonparent, the law presumes the best interest of the child will be served when in the custody of the natural parent”).
[3] Id.
[4] Id.
[5] Bostick v. Bostick-Bennett, 23 Va. App. 527, 478 S.E.2d 319 (1996).
[6] Id. at 530, 478 S.E.2d at 320.
[7] Id. at 536, 478 S.E.2d at 323.
[8] Id. at 530, 478 S.E.2d at 320.
[9] Id. at 534, 478 S.E.2d at 322.
[10] Keel, 225 Va. at 612, 303 S.E.2d at 921.
[11] Id.
[12] Id.
[13] No. 1085-08-4, 2009 Va. App. LEXIS 402 (Va. Ct. App. Sept. 8, 2009) (unpublished).
[14] Id. at *5.
[15] Id.
[16] Id. at *6.

By: Lloyd Jeong

When a parent has sole custody of a child, that parent has complete say over child visitation with the non-custodial parent. 

However, in most cases, the courts grant the parents joint legal custody (the parents share the responsibility of making decisions for the child) and grant one parent primary physical custody (the child resides with this parent most of the time).  Therefore, a visitation schedule is required for the parent without primary physical custody and the child. 

In an ideal world, both parents will make compromises and reach a visitation agreement that satisfies both parents and is convenient for the child.  Unfortunately, however, disputing parents may not be able to come to a amicable agreement.  When parents are unable to reach an agreement, the court will set a visitation schedule for the parents and child.

The Virginia judicial system website lists several factors to consider when coming up with a visitation schedule.

• Be child-focused;
• Encourage frequent and continuing contact with each parent;
• Preserve the dignity of all parties;
• Help the family spend time, money and emotional resources in the most positive ways; and,
• Ensure that children benefit from a healthy, non-abusive family environment at all times.

Additionally, when approving a visitation schedule, the court will consider the “best interests of the child” and the corresponding 10 factors that were previously discussed. 

If parents cannot agree on a visitation schedule, the court may order parents to participate in mediation.  Mediation is where the a neutral third party helps the parents reach an agreement amicably.  If the parents are still unable to reach an agreement after mediation, then each parent may propose a schedule to the court.  The judge may either accept one of the proposed schedules, or create a new visitation schedule.  Once the judge orders a visitation schedule, the parents must follow the ordered schedule.

By: Lloyd Jeong

When deciding which parent (or other person) is granted custody of the child, the Virginia courts determine what is in the “best interests of the child.”  To make this determination, the courts consider ten factors as listed in Virginia Code § 20-124.3:

1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs; 
2. The age and physical and mental condition of each parent; 
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child; 
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child; 
6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child; 
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child; 
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference; 
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and 
10. Such other factors as the court deems necessary and proper to the determination. 

No one factor is decisive by itself.  Courts will consider all of the factors above and weigh them against each other before making a final decision.  For example, if there is a custody dispute between a wealthy parent who has a history of domestic violence and a less affluent parent, the court may decide to grant custody to the parent with less financial resources after weighing all ten of the factors.