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1997 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 16.1-253.1, 16.1-253.4, as it is currently effective and as it may become effective, §§ 16.1-279.1, 18.2-57.2 and 19.2-81.3 of the Code of Virginia are amended and reenacted as follows:
§ 16.1-253.1. Preliminary protective orders in cases of family abuse.
A. Upon the 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. The order may be issued in an ex parte proceeding upon 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 has recently occurred shall constitute good cause.
A preliminary protective order may include any one or more of the following conditions to be imposed on the allegedly abusing person:
1. Prohibiting acts of family abuse.
2. Prohibiting such other contacts between the parties as the court deems appropriate.
3. Prohibiting such other contacts with the allegedly abused family or household member as the court deems necessary to protect the safety of such persons.
4. Granting the petitioner possession of the premises occupied by the parties to the exclusion of the allegedly abusing person; however, no such grant of possession shall affect title to any real or personal property.
5. Granting the petitioner temporary possession or use of a motor vehicle jointly owned by the parties to the exclusion of the allegedly abusing person; however, no such grant of possession or use shall affect title to the vehicle.
6. Requiring that the allegedly abusing person provide suitable alternative housing for the petitioner and any other family or household member, where appropriate.
B. As soon as practicable after receipt of the order by a local law-enforcement agency for service, the agency shall enter the name of the person subject to the order and other appropriate information required by the Department of State Police into the Virginia crime information network system established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52. A copy of a preliminary protective order shall be served as soon as possible on the allegedly abusing person in person as provided in § 16.1-264, and upon service, the agency making service shall enter the date and time of service into the Virginia crime information network system. The preliminary order shall specify a date for the full hearing. The hearing shall be held within fifteen days of the issuance of the preliminary order. Upon request after the order is issued, the clerk shall provide the petitioner with a copy of the order and information regarding the date and time of service. The order shall further specify that the person served may at any time file a motion with the court requesting a hearing to dissolve or modify the order. The hearing on the motion shall be given precedence on the docket of the court.
Upon receipt of the return of service or other proof of service pursuant
to § 16.1-264, the clerk shall certify and forward
forthwith a an attested copy of the preliminary
protective order to the local police department or sheriff's office which
shall, on the date of receipt, enter the name of the person
subject to the order and other appropriate information required by the
Department of State Police into the Virginia crime information network
system established and maintained by the Department pursuant to Chapter 2
(§ 52-12 et seq.) of Title 52 any other
information required by the State Police which was not previously
entered. If the order is later dissolved or modified, a copy of the
dissolution or modification order shall also be certified
attested, forwarded and entered in the Virginia crime information
network system as described above.
C. The preliminary order is effective upon personal service on the allegedly abusing person. Except as otherwise provided in § 16.1-253.2, a violation of the order shall constitute contempt of court.
D. At a full hearing on the petition, the court may issue a protective order pursuant to § 16.1-279.1 if the court finds that the petitioner has proven the allegation of family abuse by a preponderance of the evidence.
§ 16.1-253.4. Emergency protective orders authorized in cases of family abuse.
A. Any judge of a circuit court, general district court, juvenile and domestic
relations district court or magistrate may issue a written or verbal
oral ex parte emergency protective order pursuant to this section in
order to protect the health or safety of any person.
B. When a law-enforcement officer or an allegedly abused person asserts under
oath to a judge or magistrate, and on that assertion or other evidence the
judge or magistrate finds that (i) a warrant for a violation of §
18.2-57.2 has been issued and there is probable danger of further acts of
family abuse against a family or household member by the respondent or (ii)
reasonable grounds exist to believe that (i) the
respondent has committed family abuse and (ii) there is probable
danger of a further such offense against a family or household member by the
respondent, the judge or magistrate shall issue a written or
verbal an ex parte emergency protective order imposing one or
more of the following conditions on the respondent:
1. Prohibiting acts of family abuse;
2. Prohibiting such contacts by the respondent with family or household members of the respondent as the judge or magistrate deems necessary to protect the safety of such persons; and
3. Granting the family or household member possession of the premises occupied by the parties to the exclusion of the respondent; however, no such grant of possession shall affect title to any real or personal property.
C. An emergency protective order issued pursuant to this section shall expire at 5 p.m. on the next business day that the juvenile and domestic relations court is in session or seventy-two hours after issuance, whichever is later. The respondent may at any time file a motion with the court requesting a hearing to dissolve or modify the order. The hearing on the motion shall be given precedence on the docket of the court.
D. A law-enforcement officer may request an emergency protective order
pursuant to this section orally, in person or by electronic means, and the
judge of a circuit court, general district court, or juvenile and domestic
relations district court or a magistrate may issue an oral emergency protective
order. A verbal An oral emergency protective order
issued pursuant to this section shall be reduced to writing, by the
law-enforcement officer requesting the order or the magistrate on a preprinted
form approved and provided by the Supreme Court of Virginia. The completed form
shall include a statement of the grounds for the order asserted by the officer
or the allegedly abused person.
E. As soon as practicable after receipt of the order by a local
law-enforcement agency for service, the agency shall enter the name of the
person subject to the order and other appropriate information required by the
Department of State Police into the Virginia crime information network system
established and maintained by the Department pursuant to Chapter 2 (§
52-12 et seq.) of Title 52. A copy of an emergency protective order
issued pursuant to this section shall be served upon the respondent as soon as
possible, and upon service, the agency making service shall enter the date
and time of service into the Virginia crime information network system.
One copy of the order shall be given to the allegedly abused person when it is
issued, and one copy shall be filed with the written report required
by § 19.2-81.3 C. The original copy shall be forwarded for verification to
the judge or magistrate who issued the order and then filed with the clerk of
the juvenile and domestic relations district court within five business days of
the issuance of the order. The clerk shall certify and forward forthwith a
copy of the order to the local police department or sheriff's office which
shall, on the date of receipt, enter the name of the person subject to the
order and other appropriate information required by the Department of State
Police into the Virginia crime information network system established and
maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of
Title 52. If the order is later dissolved or modified, a copy
of the dissolution or modification order shall also be
certified attested, forwarded and entered in the system
as described above. Upon request, the clerk shall provide the allegedly abused
person with information regarding the date and time of service.
F. The availability of an emergency protective order shall not be affected by the fact that the family or household member left the premises to avoid the danger of family abuse by the respondent.
G. The issuance of an emergency protective order shall not be considered evidence of any wrongdoing by the respondent.
H. As used in this section, a "law-enforcement officer" means any full-time or
part-time employee of a police department or sheriff's office which is part of
or administered by the Commonwealth or any political subdivision
thereof, and who is responsible for the prevention and detection of
crime and the enforcement of the penal, traffic or highway laws of the
Commonwealth. Part-time employees are compensated officers who are not
full-time employees as defined by the employing police department or sheriff's
office.
§ 16.1-253.4. (Delayed effective date) Emergency protective orders authorized in certain cases; penalty.
A. Any judge of a circuit court, general district court, family court or
magistrate may issue a written or verbal oral ex parte
emergency protective order pursuant to this section in order to protect the
health or safety of any person.
B. When a law-enforcement officer or an allegedly abused person asserts under
oath to a judge or magistrate, and on that assertion or other evidence the
judge or magistrate finds that (i) a warrant for a violation of §
18.2-57.2 has been issued and there is probable danger of further acts of
family abuse against a family or household member by the respondent or (ii)
reasonable grounds exist to believe that (i) the
respondent has committed family abuse and (ii) there is probable
danger of a further such offense against a family or household member by the
respondent, the judge or magistrate may issue a written or verbal
an ex parte emergency protective order imposing one or more of
the following conditions on the respondent:
1. Prohibiting acts of family abuse;
2. Prohibiting such contacts by the respondent with family or household members as the judge or magistrate deems necessary to protect the safety of such persons; and
3. Granting the family or household member possession of the premises occupied by the parties to the exclusion of the respondent; however, no such grant of possession shall affect title to any real or personal property.
C. An emergency protective order issued pursuant to this section shall expire
at 5 p.m. on the next business day that the juvenile and domestic
relations family court sits in the jurisdiction or seventy-two
hours after issuance, whichever is later. The respondent may at any time file a
motion with the court requesting a hearing to dissolve or modify the order. The
hearing on the motion shall be given precedence on the docket of the court.
D. A law-enforcement officer may request an emergency protective order
pursuant to this section orally, in person or by electronic means, and the
judge of a circuit court, general district court, or family court or a
magistrate may issue an oral emergency protective order. A
verbal An oral emergency protective order issued pursuant to
this section shall be reduced to writing, by the law-enforcement officer
requesting the order or by the magistrate, on a preprinted form approved and
provided by the Supreme Court of Virginia. The completed form shall include a
statement of the grounds for the order asserted by the officer or the allegedly
abused person.
E. As soon as practicable after receipt of the order by a local
law-enforcement agency for service, the agency shall enter the name of the
person subject to the order and other appropriate information required by the
Department of State Police into the Virginia crime information network system
established and maintained by the Department pursuant to Chapter 2 (§
52-12 et seq.) of Title 52. A copy of an emergency protective order
issued pursuant to this section shall be served upon the respondent as soon as
possible, and upon service, the agency making service shall enter the date
and time of service, into the Virginia crime information network system.
One copy of the order shall be given to the allegedly abused person when it is
issued, and one copy shall be filed with the written report required
by § 19.2-81.3 C. The original copy shall be forwarded for verification to
the judge or magistrate who issued the order and then filed with the clerk of
the family court within five business days of the issuance of the order.
The clerk shall certify and forward forthwith a copy of the order to the
local police department or sheriff's office which shall, on the date of
receipt, enter the name of the person subject to the order and other
appropriate information required by the Department of State Police into the
Virginia crime information network system established and maintained by the
Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52. If
the order is later dissolved or modified, a copy of the dissolution or
modification order shall also be certified attested,
forwarded and entered in the system as described above. Upon request, the clerk
shall provide the allegedly abused person with information regarding the date
and time of service.
F. The availability of an emergency protective order shall not be affected by the fact that the family or household member left the premises to avoid the danger of family abuse by the respondent.
G. The issuance of an emergency protective order shall not be considered evidence of any wrongdoing by the respondent.
H. As used in this section, a "law-enforcement officer" means any full-time or
part-time employee of a police department or sheriff's office which is part of
or administered by the Commonwealth or any political subdivision
thereof, and who is responsible for the prevention and detection of
crime and the enforcement of the penal, traffic or highway laws of the
Commonwealth. Part-time employees are compensated officers who are not
full-time employees as defined by the employing police department or sheriff's
office.
§ 16.1-279.1. Protective order in cases of family abuse.
A. In cases of family abuse, the court may issue a protective order to protect the health and safety of the petitioner and family or household members of the petitioner. A protective order issued under this section may include any one or more of the following conditions to be imposed on the respondent:
1. Prohibiting acts of family abuse;
2. Prohibiting such contacts by the respondent with the petitioner or family or household members of the petitioner as the court deems necessary for the health or safety of such persons;
3. Granting the petitioner possession of the residence occupied by the parties to the exclusion of the respondent; however, no such grant of possession shall affect title to any real or personal property;
4. Granting the petitioner temporary possession or use of a motor vehicle jointly owned by the parties to the exclusion of the respondent; however, no such grant of possession or use shall affect title to the vehicle;
5. Requiring that the respondent provide suitable alternative housing for the petitioner and, if appropriate, any other family or household member;
6. Ordering the respondent to participate in treatment, counseling or other programs as the court deems appropriate; and
7. Any other relief necessary for the protection of the petitioner and family or household members of the petitioner, including a provision for temporary custody or visitation of a minor child.
B. The protective order may be issued for a specified
period,; however, unless otherwise authorized by law, a
protective order may not be issued under this section for a period longer than
two years. The clerk shall certify and forward forthwith a
an attested copy of the order to the local police department
or sheriff's office which shall, on the date of receipt, enter the name of the
person subject to the order and other appropriate information required by the
Department of State Police into the Virginia crime information network system
established and maintained by the Department pursuant to Chapter 2 (§
52-12 et seq.) of Title 52. If the order is later dissolved or modified, a copy
of the dissolution or modification order shall also be
certified attested, forwarded and entered in the system as
described above.
C. Except as otherwise provided in § 16.1-253.2, a violation of a protective order issued under this section shall constitute contempt of court.
D. The court may assess costs and attorneys' fees against either party regardless of whether an order of protection has been issued as a result of a full hearing.
E. Any judgment, order or decree, whether permanent or temporary, issued by a
court of appropriate jurisdiction in another state, the United States or any of
its territories, possessions or Commonwealths, the District of Columbia or by
any tribal court of appropriate jurisdiction for the purpose of preventing
violent or threatening acts or harassment against or contact or communication
with or physical proximity to another person, including any of the conditions
specified in subsection A, shall be accorded full faith and credit and enforced
in the Commonwealth as if it were an order of the Commonwealth, provided
reasonable notice and opportunity to be heard were given by the issuing
jurisdiction to the person against whom the order is sought to be enforced
sufficient to protect such person's due process rights and consistent with
federal law. A person entitled to protection under such a foreign order may
file the order in any juvenile and domestic relations district court or family
court by filing with the court a certified an attested or
exemplified copy of the order and an affidavit, under oath, that to
the best of such person's knowledge the order is then in effect as written and
upon such filing shall be enforceable as an order entered pursuant to this
section. Upon such a filing, the clerk shall forward forthwith an
attested copy of the order to the local police department or sheriff's office
which shall, on the date of receipt, enter the name of the person subject to
the order and other appropriate information required by the Department of State
Police into the Virginia crime information network system established and
maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of
Title 52.
Upon inquiry by any law-enforcement agency of the Commonwealth, the clerk shall make a copy available of any foreign order filed with that court. A law-enforcement officer may, in the performance of his duties, rely upon a copy of a foreign protective order or other suitable evidence which has been provided to him by any source and may also rely upon the statement of any person protected by the order that the order remains in effect.
F. Either party may at any time file a written motion with the court requesting a hearing to dissolve or modify the order.
§ 18.2-57.2. Assault and battery against a family or household member.
A. Any person who commits an assault and battery against a family or household member shall be guilty of a Class 1 misdemeanor.
B. On a third or subsequent conviction for assault and battery against a family or household member, where it is alleged in the warrant, information, or indictment on which a person is convicted, that (i) such person has been previously convicted twice of assault and battery against a family or household member, or of a similar offense under the law of any other jurisdiction, within ten years of the third or subsequent offense, and that (ii) each such assault and battery occurred on different dates, such person shall be guilty of a Class 6 felony.
C. Whenever a warrant for a violation of § 18.2-57.2 this
section is issued, the magistrate shall issue an emergency protective
order as authorized by § 16.1-253.4 when the person arrested and
taken into custody is brought before the magistrate.
D. As used in this section, "family or household member" means (i) the
defendant's spouse, whether or not he or she resides in the same home with the
defendant,; (ii) the defendant's former spouse, whether
or not he or she resides in the same home with the
defendant,; (iii) the defendant's parents, stepparents,
children, stepchildren, brothers and sisters, grandparents and grandchildren
who reside in the same home with the defendant,; (iv) the
defendant's mother-in-law, father-in-law, sons-in-law, daughters-in-law,
brothers-in-law and sisters-in-law who reside in the same home with the
defendant,; (v) any person who has a child in common with
the defendant, whether or not the defendant and that person have been married
or have resided together at any time,; or (vi) any
individual who cohabits or who, within the previous twelve months, cohabited
with the defendant, and any children of either of them then residing in the
same home with the defendant.
§ 19.2-81.3. Arrest without a warrant authorized in cases of assault and battery against a family or household member and for violations of protective orders; procedure, etc.
A. Any law-enforcement officer, as defined in § 19.2-81, may arrest without a warrant for an alleged violation of § 18.2-57.2 or § 16.1-253.2 regardless of whether such violation was committed in his presence, if such arrest is based on probable cause or upon personal observations or the reasonable complaint of a person who observed the alleged offense or upon personal investigation.
B. A law-enforcement officer having probable cause to believe that a violation of § 18.2-57.2 or a violation of § 16.1-253.2 has occurred shall arrest and take into custody the person he has probable cause to believe, based on the totality of the circumstances, was the primary physical aggressor unless there are special circumstances which would dictate a course of action other than an arrest.
C. Regardless of whether an arrest is made, the officer shall file a written
report with his department of any incident in which he has probable cause to
believe family abuse has occurred, including, where required, a statement in
writing that there are special circumstances which would dictate a course of
action other than an arrest. Upon request of the allegedly abused person, the
officer department shall make a copy
summary of the report available to the allegedly abused
person. The officer shall also provide the allegedly abused person, both orally
and in writing, information regarding the legal and community resources
available to the allegedly abused person.
D. In every case in which a law-enforcement officer makes an arrest under this section, he shall petition for an emergency protective order as authorized in § 16.1-253.4 when the person arrested and taken into custody is brought before the magistrate. Regardless of whether an arrest is made, if the officer has probable cause to believe that a danger of acts of family abuse exists, the law-enforcement officer shall seek an emergency protective order under § 16.1-253.4.
E. A law-enforcement officer investigating any complaint of family abuse, including but not limited to assault and battery against a family or household member may, upon request, transport, or arrange for the transportation of an abused person to a hospital, safe shelter, or magistrate. Any local law-enforcement agency may adopt a policy requiring an officer to transport or arrange for transportation of an abused person as provided in this subsection.
F. As used in this section, "family or household member" means (i) the person's spouse, whether or not he or she resides in the same home with the person, (ii) the person's former spouse, whether or not he or she resides in the same home with the person, (iii) the person's parents, stepparents, children, stepchildren, brothers and sisters, grandparents and grandchildren who reside in the same home with the person, (iv) the person's mother-in-law, father-in-law, sons-in-law, daughters-in-law, brothers-in-law and sisters-in-law who reside in the same home with the person, (v) any person who has a child in common with the defendant, whether or not the person and that person have been married or have resided together at any time, or (vi) any individual who cohabits or who, within the previous twelve months, cohabited with the person, and any children of either of them then residing in the same home with the defendant.
G. As used in this section, a "law-enforcement officer" means (i) any full-time
or part-time employee of a police department or sheriff's office which is part
of or administered by the Commonwealth or any political subdivision
thereof, and who is responsible for the prevention and detection of
crime and the enforcement of the penal, traffic or highway laws of this
Commonwealth and (ii) any member of an auxiliary police force established
pursuant to subsection B of § 15.1-159.2. Part-time employees are
compensated officers who are not full-time employees as defined by the
employing police department or sheriff's office.