In Virginia, you may be entitled to a domestic protective order if:
- You have been subject to “family abuse” committed by another,
- You continue to be in fear, and
- A protective order is necessary to prevent further abuse.
A Juvenile Court Judge, in granting a protective order, is authorized to use various remedies in favor of the person requesting the protective order. These include prohibiting contact between the parties (and the children, in some instances), granting the requesting party possession of a residence commonly occupied by both parties, and granting an order of temporary child support (read the rest of the remedies at Va. Code 16.1-279.1). Further, some of the remedies can be implemented immediately upon the approved application for an emergency protective order.
I have strong views on the domestic protective order laws in Virginia. I cannot argue against the necessity of these orders—violence in the household must not be tolerated and protection must be afforded to those in need–and I have represented many individuals who were properly in need of a protective order. However, I can say that I believe too many people get away with using the protective order as a legal tool–often, as an advantage against an opposing party in a custody or divorce battle. And it’s easy to see the benefit of obtaining a protective order: if you are seeking a divorce, a protective order could force a separation by ordering that your spouse give you temporary possession of the marital residence (not to mention de facto temporary custody of your children, among other things).
How do I know people abuse the system? I don’t. I can’t imagine people would ever willfully admit to using it as a tool–in many cases that would be considered perjury. What I can say is that I have seen many protective order affidavits that, on their face, should not even warrant a hearing. I’ve had numerous people in my office about custody issues ask me: “What if I go get a protective order?” when they are certainly not in fear of their significant other. Perhaps even worse, I have been involved in dozens (and heard about dozens more) of negotiations at protective order hearings and far too often the result is: the protective order is voluntarily dropped by the requesting party, and a temporary order of some kind is agreed upon, usually involving custody, visitation, or support. I believe that if the applicant was truly in fear for their safety at the time they filed for a protective order, they would not be so willing to let it go.
How can the Court system protect against this potential for abuse of protective order?
The legislature should step in and require:
- More Information on Affidavits
- More restrictive burdens of proof
- Limit the definition of family abuse
- Allow respondents (i.e. defending parties) to appear at preliminary protective order hearings
After all, we should be more hesitant, as a society, before we authorize a Court to strip a person of two essential freedoms—family and property.