By Katarina Nguyen
A protective order is the same thing as a restraining order–both are meant to protect you and Virginia uses the term protective order instead of restraining order. A protective order is meant to protect you from someone who has physically or sexually harmed you or threatened to harm or kill you by preventing this person from even contacting or approaching you.
If you’re filing for a protective order, you are called the “petitioner” and the offender is called the “respondent.”
In Virginia, there are two categories of protective orders: general protective orders and those in cases of family abuse. General protective orders are codified under Virginia Code Sections 19.2-152.7:1 to 19.2-152.12, and family abuse protective orders are codified under Virginia Code Sections 16.1-253, 16.1-253.1, 16.1-253.4, and 16.1-279.1.
General protective orders are filed in the General District Court, while family abuse protective orders are filed with the Juvenile and Domestic Relations (“JDR”) District Court. You can obtain a family abuse protective order at any time, including during the pendency of a divorce, support, custody, or visitation case. Each variety offers the same essential protection of preventing the respondent from contacting or coming near you, while the family abuse variety offers specific related relief, such as giving you possession of the residence and/or vehicle and ordering the respondent pay temporary child support.
I. Obtaining a Protective Order
The first step is determining whether you need a general protective order or a family abuse protective order. Family abuse protective orders are issued in cases of family abuse committed by a “family or household member” against you or another member of your family.
General protective orders are used for everyone who does not fall under the family abuse protective order definition.
The process for obtaining protective orders in either category is virtually identical and the Virginia court system has aimed to streamline this process. For instance, there is no filing fee required when seeking a protective order.
A. Types of Protective Orders
There are multiple types of protective orders, depending on how immediate the threat of harm is.
The first is the Emergency Protective Order (Virginia Code Section 16.1-253.4 for family abuse protective orders, and Section 19.2-152.8 for general protective orders), which only lasts three days. Emergency Protective Orders are typically obtained by a law enforcement officer because the situation is so dire that you cannot wait to have a petition filled out and processed by the court. To secure further protection after the Emergency Protective Order expires, you must file for a Preliminary Protective Order before the emergency protective order expires (Virginia Code Section 16.1-253.1 for family abuse protective orders, and Section 19.2-152.9 for general protective orders). A preliminary protective order typically lasts either 15 days or until the date of a full hearing. You are not required to get an emergency protective order before filing for a preliminary protective order. At the full hearing, the court determines whether to award the third type, which is a Final or Full Protective Order (Virginia Code Section 16.1-279.1 for family abuse protective orders, and Section 19.2-152.10 for general protective orders). Final protective orders may last up to two years.
B. Types of Harm Sufficient for a Protective Order
To obtain a general protective order, you need to demonstrate to the judge that the offender has subjected you to an act of violence or a threat of violence. Alternatively, you can show that the offender is the subject of a petition or warrant for arrest for committing a crime involving an act of violence or threat of violence. You must show that a protective order is necessary to protect the health and safety of yourself and/or your family.
To obtain a family abuse protective order, you need to demonstrate to the judge that the offender has subjected you to family abuse, as defined under Virginia Code Section 16.1-228, which can include acts of violence, threats of violence, sexual assault, forceful detention, and stalking. This abuse needed to have taken place within a reasonable period of time prior to your filing for a protective order. You must show that a protective order is required to protect the health and safety of yourself and/or your family.
The relief or protections available differs depending on the type of protective order. A full Protective Order can order the respondent to get treatment or counseling or that you receive temporary custody or visitation of a minor child in cases of a family abuse protective order, whereas a Preliminary and Emergency Protective Order cannot provide as much relief because a full hearing has not been held.
C. Filing Your Petition for a Protective Order
If you believe you have grounds to file for a protective order, you must fill out Form DC-383 for a general protective order, which is available for download here, along with instructions on how to fill out the form here. For a family abuse protective you must fill out Form DC-611, which is available for download here, along with instructions on how to fill out the form here (Note: you can delete the “Virginia Beach” insertion at the very top of the form and specify the court in which you are filing).
You must provide the contact information for the respondent and describe how he or she has harmed or threatened to harm you or members of your family. If seeking a family abuse order, you must check the appropriate boxes describing your relationship to the respondent. You can then check the box stating you are seeking a Preliminary Protective Order during the interim leading up to the full hearing. After that, you check the boxes for each type of relief you are seeking (see subsection D below for more details). On the second page, for service of the petition, you only need to fill in your name and the name and address of the respondent. The rest is filled out by the court and the serving officer. You are not required to disclose your address and phone number in the form. This information is kept confidential by the court.
You may be required to fill out a separate affidavit detailing the supporting facts showing good cause if seeking a Preliminary Protective Order. Good cause is when you can show an immediate and present danger of an act of violence or threat of violence, or you provide evidence to show probable cause that an act of violence of threat of violence recently occurred.
D. Available Relief
For family abuse protective orders, the following relief is available:
- Prohibiting further acts of family abuse or criminal offenses that result in injury to person or property
- Prohibiting such contact with you and/or your family as the judge deems necessary for your health and safety
- Granting you possession of the home at the exclusion of the respondent, if you and the respondent live together
- Prohibiting the respondent from necessary utility services to the home, or requiring the respondent to restore such services
- Granting you temporary exclusive possession or use of a motor vehicle jointly owned by you and the respondent or owned by you alone
- Prohibiting the respondent from terminating the auto insurance, vehicle registration, and taxes on the motor vehicle, or requiring the respondent to maintain the above
- Requiring the respondent provide you and/or your family with suitable alternative housing, including requiring him or her to pay the deposit needed to connect or restore necessary utility services in the alternative housing
- Granting temporary custody or visitation of a minor child or children to you
- Provide you with temporary child support for the minor children
- Granting you possession of a companion animal, as defined under Virginia Code Section 3.2-6500 (assuming you meet the definition of an owner under the same Section)
- Any other relief necessary for your protection
For general protective orders, the following relief is available:
- Prohibiting acts of violence, force, or threat or criminal offenses that may result in injury to person or property
- Prohibiting such other contact with you and/or your family as the judge deems necessary for your health and safety
- Granting you possession of the companion animal, as defined under Virginia Code Section 3.2-6500 (assuming you meet the definition of an owner under the same Section)
- Any other relief necessary to prevent acts of violence, force, threat, criminal offenses resulting in injury to your person or property, or communication or contact of any kind by the respondent
E. The Hearing
At the full hearing, the respondent will have the opportunity to defend his or herself against your allegations. You have to show by a preponderance of the evidence (i.e., more likely than not or 51%) that (1) you were subjected to an act of violence or threat of violence, (2) the respondent was convicted of a criminal offense due to an act of violence or threat of violence, or (3) a warrant was issued against the respondent alleging he or she committed an act of violence or threat of violence. If the court believes you are at risk for harm, it will grant your petition and issue a full Protective Order.
II. After Getting a Protective Order
A. Extending Your Protective Order
When the expiration date of your protective order is approaching, you may apply to extend the Protective Order using Form DC-630 for a period of up to 2 years if the respondent continues to pose a threat to you or your family. The same form is used for both family abuse and general protective orders. The form is available for download here, along with instructions on how to fill out the form here. (The second page is for the clerk and serving officer to fill out.) There is no limit on the number of extensions that can be requested. If granted, a new Protective Order is issued.
B. Dissolutions and Modifications of Existing Protective Order
Both you and the respondent also have the right to file a motion to modify or dissolve the Protective Order. If modified, the court will issue a new Protective Order.
C. Violations of the Protective Order
If the respondent violates the Protective Order and you feel threatened, you should call the police immediately. The respondent can be punished under Virginia Code Sections 18.2-60.4 and 16.1-253.2. If a family abuse protective order was violated, then you must first file Form DC-635 in the JDR District Court, available for download here and instructions here, which is a motion for show cause detailing how the respondent violated the order. If a general protective order was violated, you must file Form DC-420 in General District Court, which is available for download here and instructions here. If the court grants your motion, the respondent will be found guilty of a Class 1 misdemeanor. After the second offense, the respondent may be imprisoned for at least 60 days if violence or the threat of violence was involved. The court will also enter an additional protective order for up to 2 additional years beginning from the date of conviction.
III. Other Resources
For additional help on determining whether you qualify for a protective order and what type to seek, the Virginia court has I-CAN. Once you register, you fill out the questionnaire, which takes approximately 30 minutes. This website does not file a petition for you, but helps determine what forms you will need.
If you need assistance filing a protective order or representing you in court, please feel free to contact us for a free phone consultation.