If you are experiencing family abuse, you may request a protective order against members of your family or household, former spouse or persons with whom you have a child in common. A family or individual experiencing domestic abuse may find the need to seek out a protective order. A protective order gives a victim or victims of family abuse the protection of the court against an allegedly abusive family or household member without bringing a criminal action against the abuser. A protective order is a civil action, which requires that the offender abide by certain conditions.
“Family or Household member”
As defined in Virginia Code (16.1-228), a family or household member meets one or more of the following six criteria:
- A person’s spouse, whether or not he or she resides in the same house with the person
- A person’s former spouse, whether or not he or she resides in the same house with the person
- A person’s parents, stepparents, children, stepchildren, brothers, sisters, grandparents and grandchildren, regardless of whether such persons reside in the same home with the person
- A person’s mother-in-law, father-in-law, sons-in-law, daughters-in-law, who reside in the same home with the person
- Any individual who has children in common with the other person, whether or not the person and that individual have been married or have resided together at any time
- Any individual who cohabits or who, within the previous twelve months, cohabitated with the person, and any children of either of them residing in the same house with the person
There is no cost for getting a protective order.
There is not a requirement to get an attorney; however, if the other party has an attorney, you may decide to have one as well.
A protective order is only in effect if it has been served on the abuser.
Stay in touch with your attorney or law enforcement to find out when the order has been served.
A protective order is only as effective as the moral make-up of the abuser
In other words, it is only a piece of paper. If an abuser chooses not to follow orders, it offers no protection against the abuse.
However, an abuser will be charged with a crime if he/she violates the terms of the Protective Order.
Abiding by the Protective Order
It is only as effective as the character (moral make-up) of the abuser. The abuser may not abide by it. Abusers often feel “above the law.”
The abuser may in fact change tactics: begin to stalk, harass, or covertly abuse through written correspondence, through the children, through work, through friends and neighbors.
If someone is in need of a protective order, they should additionally consider putting a safety plan in place.
Remembering that if an abuser is resorting to physical or emotional violence, the victim and their family’s safety is compromised.
Offender is not arrested, nor sent to jail if the court makes a finding of abuse.
At the full hearing, the court revisits the conditions of the preliminary protective order
Offender can be ordered to participate in counseling.
May be valid for a period of up to two years
Violation of Protective Order
A violation of any condition of a Protective Order is a criminal offense, and the offender can be arrested for the violation.
An assault warrant is a misdemeanor offense punishable by a maximum of one year in jail and/or a $2,500 fine.
If found guilty, the defendant may have fines and/or jail time or these may be suspended, conditioned upon no further acts of abuse and/or no contact with the victim, and/or completion of a variety of counseling programs.
By request, the warrant may also be nolle prosequied (not prosecuted) and a Peace Bond may be issued.
What is a Peace Bond?
A peace bond is an agreement between the defendant (abuser) and Commonwealth of Virginia sworn before a judge.
It states that the offender will abide by certain conditions in addition to his/her good behavior and keeping of the peace bond for one year.
Peace Bond Conditions
These conditions may prohibit or limit contact between the parties or require the defendant to refrain from any violence toward the complainant.
For example, offender may be ordered to have no contact with his wife except to exchange the children for visitation.
Abuses, of course, may still occur.
If conditions of the Peace Bond are violated and this is proven at a subsequent hearing, the Bond is forfeited.
A Peace Bond is usually issued as an alternative to prosecution of an assault warrant.
Then, you will be provided with a court date
At the hearing, you request a Peace Bond from the Commonwealth’s Attorney or the presiding judge.
The defendant has the option to refuse the bond. If defendant agrees, the court may enter a Peace Bond and the charge is nolle prosequied (not prosecuted).
Effectiveness of Peace Bonds
Peace Bonds have limited effectiveness in cases where there is a history of continued physical violence in the home.
An offender may BELIEVE he or she will abide by it, but historically they do not.
Protective Orders in Cases of Stalking
Stalking is defined as “any person who on more than one occasion engages in conduct directed at another person with the intent to place, or when he knows or reasonably should know that the conduct places, that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that persons family or household member/s is guilty of a Class 1 misdemeanor. (Va. Code 18.2-60.3)
Stalking Protective Order
If you obtain a warrant for stalking against a family member, you may file for a Stalking Protective Order with the Fairfax Juvenile Court.
A stalking protective order may only be requested if a stalking warrant was issued.
Emergency Protective Orders
- Effective for 72 Hours
- Can be obtained by a magistrate or the police officer who responds to the call
- Prohibits further acts of abuse
- Prohibits contact with the victim’s family or household members (ask that specific members be named on the order)
- Allows victim to temporarily remain in the home without the abuser for duration of the order
- Keep a copy with you at all times, give a copy to employer
- Not a guarantee of safety. Report violations to law enforcement.
Preliminary Protective Orders
- Effective for 15 days
- Can be obtained by filing a written report at the Juvenile and Domestic Relations Court Service Unit. An intake worker may be able to help you fill out paperwork.
- Must file for this before an emergency protective order expires
- A hearing with the judge of the JDR Court will be set within the 15 days
- Prohibits further acts of abuse
- Prohibits contact between the victim and the abuser, between other household/family members which can be named on the order
- Allows victim to temporarily remain in the home without the abuser for as long as the order is in effect or may order the abuser to provide a suitable alternative
- Gives victims sole temporary custody of a vehicle that is jointly owned
- Only in effect after served on the abuser
- Keep a copy with you always and have one for employer
- Not a guarantee of safety
- Effective up to 2 years
- Can be obtained only through a full hearing with a judge in JDR court
- Bring pictures, witnesses, and any copies of police records and medical documentation
- Prohibits further acts of abuse
- Prohibits contact between abuser and victim as well as other family/household members which can be named on the order
- Victim may remain temporarily in the home without abuser for as long as order is in effect
- Or abuser may be ordered to provide a suitable alternative for victim and other household members
- Gives sole temporary custody of jointly owned vehicle for as long as order is in effect
- Can order abuser to participate in treatment, counseling, anger management
- Any other relief as necessary (no recording, limited/no emails, etc.)
- Must be served to be in effect
- Keep a copy and give one to employer
- Not a guarantee of safety
The suggestion to “just go get a protective order” is a naïve misunderstanding of the process, of the legal system, and maybe most importantly: of the complicated dynamics of family abuse.
Often a deep sense of shame and embarrassment – permeates the family so that a victim is reluctant to expose the abuse out of fear, shame, humiliation etc.
Abuser may be threatening many of the following: further violence, taking the children away, cutting victim/family off financially etc.
An abuser often works very hard to isolate the family.
When the victim is ready to take action, she may find herself with little to no contact with helpful resources or supportive people.
After seeking out a Protective Order, there must be a court hearing:
- Spouses may appear together – intimidation, fear, humiliation
- Judges must be convinced that abuse is indeed occurring – “he said/she said”
- Abuser may (often does) turn accusations around onto the victim
- “He said/she said” – Abusers may try to deflect attention away from their actions
- When she has protected herself, he may say she is the one who is violent
- When she is overwhelmed, afraid, angry, he may say she is mentally unstable
- When she protects her children, he may threaten to take them from her, accuse her of parental alienation
Many times it is easier to obtain a protective order if police reports are on file
Calling the police does not guarantee a positive police report
But calling them anyway does establish the pattern of domestic calls and the potential for a finding of abuse
The action of seeking out a protective order may be turned against the one seeking it
Efforts to use it against the victim may be quite profound and destructive:
Drawing children into marital conflict, one spouse or partner bad mouthing the one who filed, to or in front of the children
Parental alienation is an issue in child custody and the abuser may assert that the victim is alienating the children from him, when in reality it may be just the opposite
Officials will most likely become involved, opening the family members up to scrutiny and exposure from:
School officials, staff and teachers
Neighbors/friends are interviewed
Coworkers are often interviewed
Job in jeopardy potentially
Family difficulties now exposed on the job
Bruises and broken bones are the obvious signs, but not all signs are obvious
Many claims of abuse/violence come back “unfounded” from CPS
Others may not be able to corroborate abuse if they have not seen it, or if they see the abuser only as a gregarious, charming person
Victim must face abuser who often feels vindicated
This can lead to further denial of abuse, for both victim and abuser
Victim more confused, abuser more convinced of his position of power
If Protective Order is Violated
Call the local Police RIGHT AWAY and ask that a report be made
A violation is a Class 1 misdemeanor
Other charges may be added, such as contempt of court, for violations
Keep a copy and I.D. with you at all times
If the violation happens in another town, you can still call the police in that town