Month: October 2014

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

Preparing for Your Initial Consultation

Here at ShounBach we understand that coming to speak with an attorney can feel daunting and overwhelming, especially when going through a difficult time such as a divorce or custody dispute. Our attorneys and staff hope to make your visit as informative and helpful as possible. Here are a few tips and hints to make your visit go smoothly.

When arriving at ShounBach you will be given an Intake Sheet to complete. Each piece of information requested is essential in providing you with advice and will be referred to frequently as your case progresses. All information provided is confidential and will not be shared.

We encourage potential clients to bring a list of their questions and concerns to the meeting. Our consultations generally last an hour and there is unusually a lot to discuss. It’s easy to lose track of all the issues you want to cover when experiencing a whirlwind of emotions. The attorney you meet with will provide you with great deal of information so please feel free to take notes. If you have any questions following your consultation, give us a call and we will be happy to assist you.

Some potential clients feel more comfortable bringing a third party with them. While moral support is always helpful, it is better if it is just you and your attorney in the consultation for confidentiality reasons.

Please bring any documents with you that you feel are necessary for the attorney to assess and understand your case. For example, pre-nuptial agreements, endorsed or proposed Property Settlement Agreements, court orders and any other pleadings you have received. You will also need to provide us with any court dates you may have pending.

We understand that the topics you come in to discuss can be unpleasant and at times you may feel uncomfortable; however, it is very important that you tell us the entire truth and not withhold any details. Every case is unique and we cannot properly evaluate your case if we do not know about the good and the bad.

Our attorneys understand what you are going through. We are here to guide you through all the bumps in the road and set you on a clearer path. We look forward to meeting with you!

SCOTUS Declines Review: Virginia’s Ban on Same-Sex Marriage Overturned

Surprising legal analysts across the country, the United States Supreme Court declined to grant requests from appellants in five states where measures banning same-sex marriage had been overturned. By declining review, the rulings from each of the appellate courts remains, clearing the way for same-sex marriages to begin or recommence in eleven states – including here in Virginia.

This decision marks the culmination of lawsuits filed by two Virginia couples, Timothy Bostic and Tony London, and Carol Schall and Mary Townley, seeking to overturn Virginia’s constitutional and statutory bans on same-sex marriage. Judge Arenda L. Wright Allen of the United States District Court for the Eastern District of Virginia ruled on February 13, 2014, that Virginia’s bans were unconstitutional, a ruling that was upheld this July by the United States Court of Appeals for the 4th Circuit. ShounBach’s own, Susan Butler, co-wrote the amicus brief filed on behalf of the Virginia Chapter of the American Academy of Matrimonial Lawyers, in support of lifting the ban.

With the Supreme Court’s decision, same-sex marriage now becomes legal throughout the 4th Circuit, which includes not only Virginia but Maryland, North Carolina, South Carolina and West Virginia as well.

The lawyers of ShounBach have been representing clients in matters that are unique to same-sex relationships including custody issues, separation agreements and same-sex divorces outside of Virginia. Given the recent decisions of the Court of Appeals and the United States Supreme Court, we now look forward to using our years of experience in handling complex divorce cases throughout the courts of Northern Virginia to help clients in same-sex marriages and divorces.

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The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
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