Emergency and Temporary Custody Orders in Virginia

Who counts as family

These orders address family abuse, defined in § 16.1-228 as any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury, committed against a family or household member. That includes stalking and forceful detention, among other acts. Family or household members include a spouse or former spouse, and any individual who has a child in common with the person, whether or not they were ever married or lived together.

Emergency protective order

Any circuit, general district, or J&DR judge, or a magistrate, may issue a written or oral ex parte emergency protective order (§ 16.1-253.4(A)). When a law enforcement officer or an allegedly abused person asserts under oath to a judge or magistrate, and the judge or magistrate finds reasonable grounds to believe the respondent has committed family abuse and there is probable danger of a further offense against a family or household member, the order shall issue, except that one is not required when the respondent is a minor (§ 16.1-253.4(B)).

It expires at 11:59 p.m. on the third day following issuance, extended to 11:59 p.m. on the next day the J&DR court is in session if the expiration falls on a day the court is not in session. The judge or magistrate gives the protected person or officer the form for petitioning for a preliminary protective order.

Preliminary protective order

• Filing. The intake officer must accept and file a petition for a protective order and give the petitioner a written explanation of the conditions, procedures, and time limits (§ 16.1-260(C)). The case may be filed where either party has a principal residence, where the abuse occurred, or where a protective order then in effect was issued (§ 16.1-243(A)(3)).
• Ex parte. The court may issue it without the respondent present on good cause shown when the petition is supported by an affidavit or sworn testimony before the judge or intake officer. Immediate and present danger of family abuse, or evidence sufficient to establish probable cause that family abuse recently occurred, is good cause (§ 16.1-253.1(A)).
• What it can order. Conditions include prohibiting further abuse, prohibiting contact, granting the petitioner possession of the residence, and any other relief necessary to protect the petitioner and family or household members.
• Hearing. The order is effective on personal service and sets a date for a full hearing, which is held within 15 days of issuance unless continued or the court is closed (§ 16.1-253.1(A) and (C)). At the full hearing, the court may issue a protective order if the petitioner proves family abuse by a preponderance of the evidence (§ 16.1-253.1(E)).

Protective order after a hearing

• Custody and support. The order may include any relief necessary for protection, including a provision for temporary custody or visitation of a minor child (§ 16.1-279.1(A)(10)). The court may also issue a temporary child support order, which ends when support is determined under § 20-108.1 or when the protective order ends, whichever comes first (§ 16.1-279.1(A1)).
• Length. Up to two years, or up to four years if the respondent was subject to a previous protective order under this section issued within 10 years. Before it expires, the petitioner may file a written motion for a hearing to extend it (§ 16.1-279.1(B)).
• Changes. Either party may at any time file a written motion to dissolve or modify the order (§ 16.1-279.1(G)).
• No fee. No fee is charged for filing or serving a petition or order under § 16.1-253.1 or § 16.1-279.1.
• On appeal. A family abuse protective order is a final order that can be appealed (§ 16.1-296(A1)), and § 16.1-298(B) lists it among the orders an appeal does not automatically suspend.

Temporary orders without abuse

In custody and visitation cases other than divorce, the court may enter an order providing for custody, visitation, or maintenance pending the suit (§ 20-103(C)), applying the best interests factors in § 20-124.3 (§ 20-103(D)). Such an order has no presumptive effect and is not determinative when the court decides the case (§ 20-103(J)).

If the child is in Virginia and has been abandoned, or an emergency requires protecting the child because the child, a sibling, or a parent is subjected to or threatened with mistreatment or abuse, a Virginia court has temporary emergency jurisdiction (§ 20-146.15(A)). How long an order made on that basis lasts depends on whether another state has jurisdiction or a prior custody order exists (§ 20-146.15(B) and (C)).

Primary sources

Laws, rules and forms change. Check the current version at the source before you file.

• Va. Code § 16.1-253.4, emergency protective orders
• Va. Code § 16.1-253.1, preliminary protective orders
• Va. Code § 16.1-279.1, protective order in cases of family abuse
• Va. Code § 16.1-228, definitions of family abuse and household member
• Va. Code § 16.1-260, intake; petition
• Va. Code § 16.1-243, venue
• Va. Code § 16.1-296, appeals
• Va. Code § 16.1-298, effect of pending appeal
• Va. Code § 20-103, orders pending suit
• Va. Code § 20-146.15, temporary emergency jurisdiction