Virginia: Restraining Orders

  1. Protective Orders

    1. Introduction

      In Virginia, preliminary protective orders last 15 days or until a full hearing on the underlying threatening conduct; protective orders last for up to two years. If the person from whom the plaintiff wants protection is a family or household member or a juvenile, or if the plaintiff is a juvenile, the plaintiff should seek a preliminary protective order in juvenile and domestic relations district court. Otherwise, the plaintiff should go to the district court. There is no cost to file a protective order. When filing the protective order, the plaintiff should bring the name, address, and identifying information of the person from whom he or she is seeking protection, and a full description of the event that led the plaintiff to seek a protective order. A protective order is not effective until the person is “personally served.” To be served, a law enforcement officer or court official must give the Protective Order to the person from whom the plaintiff wants protection. A protective order may contain a “no contact” provision, such that the person cannot contact the plaintiff directly or indirectly except as authorized by the court.

    2. Text of Statute(s)

      Va. Code Ann. § 16.1-253 - Preliminary protective order.

      Va. Code Ann. § 16.1-279.1 - Protective order in cases of family abuse.

      Va. Code Ann. § 19.2-152.10 - Protective order.

      Va. Code Ann. § 19.2-152.11 - Venue for protective orders.

    3. Cases

      1. McBride v. McBride, No. 3258-03-4, 2004 WL 2982921 (Va. Ct. App. 2004).
        • Procedural Posture: Wife filed a bill of complaint for divorce, which the chancery commissioner recommended be granted on the grounds of desertion. The trial court conducted an ore tenus hearing on equitable distribution and the wife’s request for a protective order. The trial court announced its conclusions on equitable distribution, and granted the divorce and the request for a protective order.
        • Law: Protective order, § 16.1-279.1.
        • Facts: The evidence presented showed that the wife was stalked and harassed by her husband, and was afraid for her personal safety. The wife sought mental health counseling from a licensed professional counselor and marriage and family therapist several times a week. The therapist diagnosed the wife as suffering from post-traumatic stress disorder resulting from the repeated abuse she suffered during the marriage from her husband. The therapist testified that the wife’s self-inflicted knife wounds were the result of her intense fear that she was experiencing as a result of the abuse, and she strongly believed it was best for the wife not to have any further contact with the husband because it caused her to suffer psychological distress.
        • Outcome: Under Section 16.1-279.1, a protective order may be issued to protect the health and safety of the petitioner in cases of family abuse. In light of the evidence presented, the trial court had authority to issue a protective order against the husband.
        • Special Notes: This may indicate that psychological harm may be sufficient to obtain a protective order.
      2. Stephens v. Rose, 762 S.E.2d 758 (Va. Sup. Ct. 2014).
        • Procedural Posture: Plaintiff filed a petition for a protective order against her former boyfriend. The district court granted her petition, and the defendant boyfriend appealed. The circuit court conducted an evidentiary hearing and found that plaintiff had been reasonably placed in apprehension of bodily injury by defendant’s stalking, and granted plaintiff’s petition. The defendant appealed, claiming that the circuit court erred because the plaintiff failed to show the defendant directed an act of violence, force, or threat towards her.
        • Law: Protective order, § 19.2-152.10.
        • Facts: After the couple separated, the defendant emailed the plaintiff numerous times, sent her several instant messages, and tried to contact her several times through two social media sites. The plaintiff did not respond, and the defendant sent two emails acknowledging that plaintiff did not desire to communicate with him. The defendant then unexpectedly visited the plaintiff’s parents’ home and approached her parents, who told him not to contact the plaintiff. After learning that the defendant had visited her parents’ home, the plaintiff became emotionally disturbed and started crying because she was afraid. The defendant began repeatedly calling the plaintiff at her home and leaving voice messages. The plaintiff became very emotionally upset over the phone calls. The defendant also tried to contact the plaintiff at work, and sent her flowers at work. He also appeared at her door with flowers. The plaintiff moved from her home because she was afraid. At the circuit court hearing on the protective order, the plaintiff admitted she never directly told the defendant to stop contacting her, and she testified that he had never physically abused or threatened to physically abuse her, her family members, or her current boyfriend.
        • Outcome: Physical harm or threatened physical harm to a victim is not a necessary prerequisite to the granting of a protective order under the statute. Here, the plaintiff proved by a preponderance of the evidence that the defendant stalked her, and was thus entitled to the protective order.
        • Special Notes: A victim need not be physically harmed or threatened with physical harm in order to receive a protective order.
    4. Practice Pointers

      • Preliminary protective orders and protective orders pursuant to Va. Code Ann. §§ 19.2-152.9-19.2-152.10 may be filed using a form found here.
      • The Virginia Courts also publish a fact sheet with more information about seeking protective orders, found here.
      • The Virginia Courts have an online filing system for protective orders, found here.
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