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The Challenges of Extending Family Abuse Protective Orders

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 info@shoun.com

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