It was not long ago when victims of domestic violence in Virginia who had
successfully obtained final protective orders were forced to face the
scary reality of their protective orders expiring with no real recourse.
Once a protective order expired, there was no way for a victim to extend
it. A victim would have to wait for a new incident of abuse or violence
to occur so that he or she could file a new petition for a protective
order. This glaring gap in the law prompted serious safety concerns for
victims who were left without protection even when legitimate fears persisted.
In 2010, the Virginia State Legislature acknowledged this gap and allowed
for the extension of protective orders without the need to file new petitions.
According to this relatively new law (Va. Code sec. 16.1-279.1(B)), the
court may now extend a protective order for up to 2 years "to protect
the health and safety" of a petitioner or a petitioner's family
or household members.
Although the new provision represented a breakthrough in domestic violence
law in Virginia, many victims, lawyers, and judges alike have faced challenges
implementing the law because it provides no real guidance on the definition
of "health and safety." The law also fails to indicate the burden
of proof required to warrant an extension. Therefore, judges have almost
complete discretion to determine whether extending a protective order
is necessary for the petitioner's health and safety.
In some cases, proving that the protective order should be extended may
be simple. For example, if the abuser continues to engage in violent or
threatening behavior, it is relatively easy to make the case that extending
the protective order is necessary to protect the victim's health and safety.
Often, however, the need for an extension is not that obvious. Sometimes
the victim still fears the abuser even when the abuser has demonstrated
good behavior by fully complying with the protective order. The court
must carefully balance the victim's fear with the restrictions to
the abuser's liberties in deciding whether an extension is truly necessary.
While the code technically does not require a new incident of family abuse,
fear alone may not be sufficient to warrant an extension. In these difficult
cases, it is critical to link the past abusive behavior and the reasonableness
of the victim's fear. Any additional evidence beyond the victim's
own testimony, i.e. witnesses who have observed the victim's or the
abuser's behavior, photographs, documents, text messages, voicemail
recordings, etc., can help strengthen the victim's case.
While the extension provision presents some improvements to victims'
rights, in practice, it still has many challenges. It is still important
that victims work with trained attorneys who have experience in this area
of the law. If you are considering a protective order or extending your
one, contact us at