Emergency Protective Orders

On occasion, a family member in Virginia may find themselves defending against a petition for a protective order on the basis of family abuse without having complete knowledge or understanding of the allegations against them. This places that spouse at a tremendous disadvantage. However, the defending party can take certain steps in advance to determine the allegations against them so as to mount an effective defense.

Pursuant to Virginia Code Section 16.1-253.1, upon filing of a petition alleging that the petitioner is or has been, within a reasonable period of time, subjected to family abuse, the court may issue a preliminary protective order against an allegedly abusing person in order to protect the health and safety of the petitioner or any family or household member of the petitioner. Section 16.1-253.1 gives judges the authority to issue a preliminary protective order in an ex parte proceeding when the petition is supported by an affidavit or sworn testimony before the judge. An ex parte proceeding is a proceeding brought by the party seeking specific relief where evidence is presented by that party only, without notice of the hearing to the other party. After a preliminary protective order is entered, the court sets the issuance of the final protective order for a hearing to give the defending party the opportunity to be heard and to defend themselves against the allegations of the party seeking the protective order.

Issuance of the preliminary protective order based on oral testimony and in an ex parte hearing places the defending party at a severe disadvantage at the final protective order hearing. Without full awareness of the allegations against them, the defending party may not be able to effectively represent themselves at the final hearing.

In such cases, the defending party can determine the allegations against them in one of two ways. First, he or she may ask the court to order the party seeking the protective order to file a bill of particulars, specifying the factual information that is the basis for the protective order and which is not in the petition for the protective order. Second, the defending party may propound discovery on the party requesting the protective order.

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