In Virginia “Restraining Orders” are known as Protective Orders. This is a civil process handled in Virginia Courts. Below are 5 things to know about this process.
- There are Several Steps to the Protective Order Process. There are basically 3 kinds of Protective Orders in Virginia. An Emergency Protective Order (EPO) is typically granted by a Magistrate, and lasts 72 hours. A Preliminary Protective Order is granted by a Magistrate or a Judge, and lasts 2 weeks, until a hearing can be held. At that hearing the Judge will decide whether to enter a Permanent Protective Order. Despite the name, a Permanent Protective Order lasts 2 years, but can be renewed.
- Protective Orders are judged by the “preponderance of the evidence” standard. The standard for granting Protective Orders that is “if the court finds that the petitioner has proven the allegation that the petitioner is or has been, within a reasonable period of time, subjected to an act of violence, force, or threat by a preponderance of the evidence.” Va. Code 19.2-152.9. This ‘preponderance of the evidence’ standard is less than the criminal standard of “beyond a reasonable doubt” and roughly translates to “more likely than not.”
- Protective Orders are Appealable. Protective Orders are initially heard by either the General District Court, or the Juvenile and Domestic Relations Court, depending on the relationship between the parties. Regardless of the outcome, either party can appeal to the Circuit Court, who will hear the matter “de novo” – without any regard for the prior ruling. However, while the appeal is pending the ruling of the lower court will stand – meaning that if the Protective Order was granted, it will stay in effect
- Violating a Protective Order is a Criminal Offense. Violating a Protective Order is a criminal offense under Va. Code 18.2-60.4. This is, at minimum, a Class 1 Misdemeanor, and has a mandatory one day in jail. Aggravating factors can increase the severity of the offense. If you are the Respondent, it is important to review the exact terms of your Protective Order so you know what you are prohibited to do. Frequently, Protective Orders have additional prohibitions written in that may not be clear.
- The Rules of Evidence Apply in Hearings on Protective Orders. If both parties appear without an attorney, some judges may not apply the rules of evidence too strictly. However, having an attorney representing you is a good way to be sure that your evidence is admitted, and to ensure that the other side’s inadmissible evidence is excluded. Frequently the parties to Protective Orders want to argue about irrelevant personal issues, or to rely on hearsay “My friend told me that….”
Our Client Focused Attorneys have experience arguing for and against Protective Orders in courts throughout Virginia. Contact Us to learn how we can help you.
