When Family Fights Lead to Violence
October 30, 2019
Family fights are uniquely emotional and incredibly personal. What happens when a intra-family feud spills over into violence? This article shares an overview of Virginia's Domestic Violence Laws and some key considerations for those faced with this situation.
by Ave Mince-Didier
Under Virginia’s laws, it is a crime to injure, attempt to injure, or threaten a member of your family or household. It is also a crime to violate a restraining order.
In Virginia, a person commits family abuse (also called domestic violence) by committing any act against a family or household member that involves violence, force, or threats, and results in physical injury or places the family or household member in fear or injury or harm. Both stalking and sexual assault can constitute family abuse.
Family and household members include spouses, former spouses, parents, children, grandparents, grandchildren, siblings, in-laws who live in the same house, people who have children together, and people who live together or have lived together in the past year. (Va. Code Ann. § 16.1-228.)
Assault and Battery
In Virginia, it is also a crime to inflict physical injury against a family or household member. (Va. Code Ann. § 18.2-57.2.)
For more information on assault, see Virginia Assault and Battery Laws.
Arrests for Domestic Violence
Under Virginia’s laws, if a police officer has probable cause to believe (a reasonable belief) that a person has committed assault and battery against a family or household member or violated a protective order, the officer may make an arrest without a warrant and should, absent special circumstances, take the person into custody.
This is an exception to the usual rule that officers must obtain an arrest warrant first. (Va. Code Ann. § 19.2-81.3.)
A protective order (sometimes called a restraining order) is a court order requiring one person (the respondent) to not contact and stay away from another person (the petitioner).
Preliminary protective order
In Virginia, any family or household member who is or has been the victim of domestic violence may file a petition for a preliminary protective order.
The court may issue an “ex parte” order (one made without notice to the defendant and without the defendant first appearing in court) if there is an immediate danger of family abuse or if family abuse has occurred recently.
If the court finds family abuse, it may issue a preliminary protective order:
- prohibiting family abuse or criminal offenses
- prohibiting the respondent from contacting the petitioner or other family or household members
- granting the petitioner possession of any shared residence
- requiring the respondent to retain or restore residential utility services
- granting the petitioner temporary possession of a vehicle
- requiring the respondent to provide housing for the petitioner or other family members, and
- granting any other relief necessary.
The preliminary order goes into effect when the defendant is served and remains in effect until a hearing is held. A hearing must be held within 15 days of the preliminary order, although it can be delayed for up to six months if there is a good reason to do so. (Va. Code Ann. § 16.1-253.1.)
Final protective order
Following a hearing, the court can issue a final protective order. In the final protective order, the court can:
- grant, require, or prohibit any relief available in a preliminary protective order
- order the respondent to participate in treatment or counseling
- grant attorney’s fees, and
- order temporary child support.
A final protective order remains in effect for set period of time, up to two years. (Va. Code Ann. § 16.1-279.1.)
Emergency protective order
Additionally, any Virginia judge can issue an emergency protective order if the judge finds that there is a danger of further acts of family abuse, and:
- a warrant has been issued for assault and battery against a family member, or
- the respondent has committed family abuse.
The emergency protective order is limited. It can only:
- prohibit crimes or acts of family abuse
- prohibit the respondent from contacting family members, and
- grant family members possession of a shared residence.
The emergency protective order is in effect for only three days, or until the next court day after the third day.
(Va. Code Ann. § 16.1-253.4.)
Violating a protective order
Violating most provisions of a protective order is a crime. Violating a preliminary or final protective order is also contempt of court. Contempt of court is punishable by time in jail or a fine. (Va. Code Ann. § § 16.1-253.1, 16.1-279.1.)
Assault and battery against a family member is also a Class 1 misdemeanor, punishable by up to one year in jail and a fine of up to $2,500.
The court may place a first time offender on probation and order treatment as a condition of probation. If the defendant has two or more prior convictions for assault and battery (or similar crimes) against a family or household member, then assault and battery is punishable as a Class 6 felony by up to one year in jail, or one to five years in prison, and a fine of up to $2,500.
It is a Class 1 misdemeanor to violate a protective order by:
- committing family abuse
- committing any crime
- contacting a prohibited person, or
- going to a prohibited place.
A person convicted a second time of violating a protective order when the prior or current offense involved committing or threatening violence must serve a minimum of 60 days in jail.
A third or subsequent conviction for violating a protective order involving violence is punishable as a Class 6 felony, and the defendant must serve at least six months in jail.
A conviction for assault and battery causing serious injury against a person who is under a protective order or entering the home of a person under a protective order is also punishable as a Class 6 felony.
(Va. Code Ann. § § 16.1-253.2, 18.2-10, 18.2-11, 18.2-57.2, 18.2-57.3, 18.2-60.4.)
Obtaining Legal Advice and Representation
A protective order or a conviction for assault on a family or household member can have serious consequences. If you are charged with domestic violence or served with a protective order, you should contact a criminal defense attorney in Virginia immediately. A criminal defense attorney will be able to tell you what to expect in court and prepare your case so that you have the best chance of achieving a good outcome.
This article first appeared on Criminal Defense Lawyer.