Types of Civil Protection Orders in Fairfax Domestic Violence Cases
An assault is the striking or an unlawful touching of one person against another, a domestic assault, therefore is defined as an assault between two family members. An assault does not need to result in an injury or even a bruise or a mark, and in fact any unlawful touching including a shove, a push or anything of that nature can be considered an assault. When these types of offenses are alleged, a protective order is often issued requiring the individual who allegedly committed the assault to stay away from the other party. With this said, if you are accused it is important to understand the legal requirements of the protective order and follow it to avoid further consequences.
Emergency Protective Order
First is an emergency protective order. Emergency protective orders last 72 hours and are generated automatically by the magistrate who issued the warrant for the person’s arrest. It’s something that takes place immediately upon the issuance of that warrant and, therefore, the person who has been accused, under most circumstances, is not entitled to return home for a period of 72 hours, even if the person who accused him or her allows for it. It is an operation of the law that cannot be undone.
Preliminary Protective Order
The second kind of protective order is called a preliminary protective order. This is something that the alleged victim of the assault must go and obtain at the magistrate’s office. It requires a sworn statement alleging some sort of family abuse. A preliminary protective order is civil in nature and lasts for a period of up to two weeks, or until there is a hearing on a matter in court. The hearing is generally set for some time within that two-week time frame so that a judge in the juvenile and domestic relations court can make a ruling as to whether or not he or she believes family abuse has taken place. And if so, whether or not a protective order is appropriate.
Full Protective Order
If there is a hearing on the preliminary protective order and the judge finds by a preponderance of the evidence that some sort of family abuse has taken place and that a protective order is, therefore, appropriate, the judge will enter a full protective order. And a protective order is something that lasts for two years.
If a person violates the terms of any of these protective orders, it constitutes a separate and distinct criminal charge that subjects them to the possibility of jail time.
Child Custody and Visitation
Generally speaking, an emergency protective order will preclude a person from going home and interacting with their children at all, but it only lasts for 72 hours. After an emergency protective order expires, the law is silent as to what might happen with regards to custody and visitation. However, if a protective order is issued, that’s either a preliminary protective order or a full protective order, then the court will consider things like child custody and visitation at the hearing for that protective order and the court will make a ruling as to what is appropriate regarding custody and visitation at that time.
Benefits of a Lawyer
The benefits of having a domestic violence lawyer on a person’s side, if they are accused of domestic violence, cannot be overstated. They are facing a significant criminal charge and a Class One misdemeanor that can, and very often does, result in jail time upon conviction. Having a lawyer by their side to prevent those things from happening is absolutely critical.
If the allegations are false against a person, then they need a lawyer who is well-trained and well-practiced in the art of trial practice to go to court and fight against the charges and/or cross-examine the victim and make it clear to the court that there exists reasonable doubt as to whether or not the assault occurred.
If, however, the evidence is overwhelming that the assault did occur, they need a lawyer on their side to help them try to present evidence in mitigation, to try to soften their sentence, to make it so that a conviction might be avoided through a deferred disposition or some other disposition that is available to first time offenders.