Protective Orders Lawyer Fairfax
When a person alleges that she/he is a victim of “family abuse” - abuse by a household or family member- that person has the ability to file for a “Protective Order” in the Juvenile and Domestic Relations District Court in the county where the alleged victim lives, where the alleged abuser lives, or where the alleged abuse occurred.
In Virginia, family abuse is defined as violence, force, or threats by a family member that results in bodily injury or places a person in reasonable fear of death, sexual assault, or bodily injury. A family member can be a spouse, former spouse, close relative, parent of a child in common, or a person who lives with or has lived with the victim in the last 12 months.
A protective order is a civil remedy, and there are situations where a person will file for a protective order even though there are no criminal charges pending. However, protective orders are usually filed in conjunction with a criminal charge of domestic assault or domestic assault and battery. If a person is charged with domestic assault or domestic assault and battery, a variety of protective orders may come into play depending on the circumstances of the case.
The three types of protective orders:
• An Emergency Protective Order – an Emergency Protective Order is given by a magistrate based on a petition by the victim or a law enforcement officer alleging that family abuse exists. The alleged abuser does not need to be present when the Emergency Protective Order is being issued, however, the Emergency Protective Order is not effective until the Defendant or Respondent is served with it. This order lasts for 72 hours only and is required in cases where domestic assault is alleged.
• A Preliminary Protective Order – a Preliminary Protective Order is given by a judge based on a written and signed affidavit by the alleged victim. Again, the Court may issue this type of order even if the alleged abuser is not present, however, the order is not effective until he or she is served with it. This order lasts for 15 days.
• A “Permanent” Protective order – a permanent protective order is given by a judge after a hearing where the victim and alleged abuser are both present and able to tell their side of the story. This order can last for up to two years and appears on the criminal record of the abuser, even though it is a civil proceeding.
Protective orders prohibit abusive behavior and contact, but they can also impact property and custody rights including, but not limited to, granting the victim exclusive use and possession of the shared residence and family vehicle, as well as granting the victim temporary custody and visitation of children.
Most often, attorneys do not get involved until after a preliminary or emergency protective order have been entered. It is imperative that a Defendant or Respondent have an attorney represent them for the Permanent Protective Order hearing. In fact, the person attempting to obtain a protective order is well-advised to have an attorney advocate for them at the hearing. Our firm has experience representing clients on both sides of this difficult situation.
In cases involving a spouse or parties who have a child in common, the protective order process is often the first step in a divorce or child custody litigation. As such, it is important to achieve certain results to avoid negative repercussions in any future divorce case.
Violation of Protective Order
It is also imperative for a Defendant to have competent counsel in cases alleging a protective order violation. A violation of a protective order is a class 1 misdemeanor and could carry a penalty of up to 12 months in jail and a $2,500.00 fine. A second offense, within 5 years, carries a mandatory minimum jail sentence of 60 days. A third or subsequent offense, within 20 years, is a felony and carries a mandatory minimum jail sentence of 6 months.
Dissolution/Modification of Protective Order
Additionally, it is often necessary to dissolve or modify a protective order at a later date. An attorney can file and argue such a motion for you.