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Custody and Visitation TO THE READER: This pamphlet contains general legal information. For advice regarding your particular legal problem, you should contact an attorney. 1. IF MY CHILDREN ARE LIVING WITH ME, DO I HAVE LEGAL CUSTODY OF THEM? Joint legal custody means that you and the other parent have joint responsibility for the care and control of the children and share joint power to make decisions concerning them. If there has been no court order or separation agreement establishing the custodial rights to the children, then neither parent has custody regardless of with which parent the children physically live. In such a situation, the parent who does not have the children physically with him\her is legally entitled to take them at any time. However, once you have established court-ordered custody, any person who withholds the children from you can be found guilty of parental abduction under 18.2-49.1 of the Code of Virginia. 2. HOW DO I GET COURT-ORDERED CUSTODY OF MY CHILD? REMEMBER that an agreement at an intake hearing is just that -- an agreement. Neither side has to agree on anything. If you are not satisfied with the outcome of the intake hearing, you should not sign any agreement, and insist that a hearing before a judge be scheduled. By filing a petition with the Juvenile and Domestic Relations District Court in the county where the child lives. The Court Services Unit will help you to file the necessary papers. You can and should file a petition for child support at the same time. You generally will either be allowed to file your petitions or you may be asked to make an appointment and come back to file your petitions. You should call the Court Services Unit first and find out what their procedure is. Once you have filed your petitions, the court will file them and assign a hearing date. Both you and the opposing party will be served with a summons by the sheriff for the hearing date. The first hearing is usually a temporary hearing that will be given about thirty minutes or less on the Court docket. Many parties are able to reach a temporary agreement at the first hearing date. In Spotsylvania, Stafford and King George Juvenile and Domestic Relations Court, the parties will be called into a mediation session at the first hearing to see if they are able to reach an agreement. If the parties are able to mediate their dispute, then their agreement will be taken into the courtroom and entered by the judge as a court order. If you and the other person are not able to reach an agreement, a brief hearing will be conducted and the judge will hear evidence in your case. The Court will only hear the issues for which a motion has been filed. Based on the evidence heard, the judge will issue a temporary order and the case will be set for another hearing. Sometimes the judge will order one or both of you to complete a homestudy or to participate in counseling. 3. IF THE OTHER PARENT DECIDES TO FIGHT FOR CUSTODY, HOW DOES THE JUDGE DECIDE? All custody and visitation cases in Virginia are decided upon on the answer to just one question: What are the best interests of the child? The judge looks at the case not from the point of view of what is best or fair for the mother or father, but from the point of view of what is best for the child Virginia Code 20-124.3 requires the court to consider many different factors: What is the age and physical and mental condition of the child and the ages and physical and mental conditions of each parent? Which parent is currently caring for the child and how long has the child been with that parent? What role has each parent played in caring for the child in the past, and what will that role be in the future? Which parent can provide the most adequate housing? Which parent is best able to keep the child clean, well fed and clothed? Which parent can provide the most adequate supervision of the child? Which can best provide affection and meet the child's emotional needs? Which parent is more likely to support and promote a good relationship between the child and the other parent? What are the relationships of the litigating parties to the child? (The law presumes it is in the child's best interests to be with a natural parent unless the parent is unfit or has abandoned the child). The judge will also look very carefully at any problem either parent might have that would affect his or her ability to be a good parent. Such problems could be: alcohol or drug abuse; physical or mental illness; a history of family abuse or of problems with controlling anger; or any situation affecting the child's moral environment, such as a parent's boyfriend or girlfriend living in the home. Except in highly unusual circumstances, a parent with a live-in lover will not be awarded custody. 4. HOW ARE THE CHILD'S INTERESTS REPRESENTED IN COURT? The judge generally appoints a special attorney called a guardian ad litem (GAL) to represent the child and to make a recommendation to the court on what kind of custody arrangement would be in the child's best interests. The GAL usually speaks with both parents and to other people who have a relationship with the child. The GAL will also want to speak with the child about his or her wishes in the matter if the child is old enough. The older a child is, the more his or her wishes will be taken into account, but keep in mind that the issue is the child's best interests, not simply what the child wants. IMPORTANT: Any recommendation by the GAL will be given great weight by the judge, so it is very important to meet with the GAL as soon as one is appointed to let him or her know what your position is. You should provide the GAL with any evidence that supports your position, such as report cards, letters, tape recordings, pictures, and the names, addresses and phone numbers of any witnesses you want the GAL to speak with. The judge may also decide to order a home study through the Department of Social Services. This is an investigation into the home situation of either or (usually) both parents by a social worker. The social worker will talk with the child and the parents and anyone else having a significant involvement with the child (such as neighbors, relatives, teachers, pastors and the like). The worker will also consider whether the home itself is a suitable place for the child to be raised. The worker then prepares a report to the Court that lays out the facts and sometimes makes a recommendation that the judge considers in reaching a decision. 5. MAY I BRING WITNESSES TO TESTIFY ON MY BEHALF? In fact, you should be thinking about people who can testify for you even before you file for custody. You will not need witnesses at the first hearing, but at the trial, you should ask witnesses to come. The people you choose should be able to give the court first-hand (not hearsay) information about your relationship with the children and your ability to meet their physical and emotional needs -- one or two high-quality witnesses are much more effective than many witnesses who don't have first-hand information or who merely repeat what others have already said. If necessary, you can subpoena witnesses by giving the Clerk of the Court the names and street addresses (not post office box numbers) of the people you want to appear on your behalf. To make sure they are served their subpoenas on time, you should go to the clerk's office to do this at least ten days in advance of your hearing date. 6. WHAT IS THE SIGNIFICANCE OF THE JUDGE AWARDING JOINT CUSTODY? Judges favor awarding joint custody because they believe it encourages both parents to work together for the common good of the children and makes the noncustodial parent feel more included in their lives. But as a practical matter, there is little difference between having joint legal custody with primary physical custody and having sole custody. This means that both parents retain the right to participate in significant decisions concerning the child, which implies a responsibility to notify the other parent when you are faced with a major decision to be made. However, the child will still most likely be ordered to reside primarily in one parent's home; that parent will have primary physical custody and the final say-so in most decisions unless the custody order provides otherwise. Whether custody is sole or joint, either way the noncustodial parent cannot have the children except under the terms provided in the custody order. Either way, a noncustodial parent cannot be denied access to the academic, medical, hospital or other health records of the child. Either way, the noncustodial parent cannot be denied the chance to participate in the child's school or daycare activities unless such participation is specifically denied in the custody order -- if the order so provides, it is the custodial parent's responsibility to provide the school or daycare with a copy. And either way, the custodial parent will be required to give 30 days advance written notice both to the noncustodial parent and to the court of any intended change of address, unless good cause can be shown why your address should not be disclosed (for example, if you have been the victim of severe domestic violence). Joint custody may put the noncustodial parent on slightly better footing if he or she goes back to court in the future to seek primary physical custody. 7. CAN I KEEP THE OTHER PARENT FROM SEEING THE CHILD IF I HAVE CUSTODY? Judges look very carefully to see whether requests to restrict visitation are not actually motivated by a desire to punish or hurt the other parent -- if a parent is seen as putting his or her own interests and desires ahead of the child's, a request to restrict visits could backfire and even cause the judge to reconsider custody. If a court-ordered visitation schedule is not working out, you can always petition the court to modify it, except in very unusual circumstances. Visitation, like custody, is set in accordance with the best interests of the child. Judges usually rule that it is in a child's best interests to know and have a relationship with both parents. The non-custodial parent will therefore be granted visitation rights unless it is found that parent has abused the child or has other major problems such as a severe drug or drinking problem -- and even then, the judge will likely provide for some limited contact. Visitation rights may be open-ended and flexible, to be worked out between the two parents, or they may be very specific as to days and times. Visitation may be limited to short visits at the custodial parent's home or some neutral site, or it may involve keeping the child overnight, over a weekend, or over a vacation or holiday period. Keep in mind that visitation and support are considered two separate issues in Virginia. The non-custodial parent's failure to pay support as ordered does NOT give the custodial parent the right to withhold visitation. Similarly, a custodial parent's failure to provide visitation as ordered does NOT give the other parent the right to stop paying support. The proper way to deal with violations of an order by the other parent is to file a show cause petition (the juvenile court has preprinted forms for this purpose) asking that the parent be held in contempt. It is possible to be put in jail for being in contempt. If you have specific concerns about the other parent and visitation, make sure you bring these up to the judge. The judge can tailor the visitation to fit the individual circumstances. If the other parent has a drinking or drug problem, for example, the judge can order that he or she visit only if clean and sober or if regularly attending AA meetings or only after having completed a treatment program. If the non-custodial parent does not know how to care for the child, he or she can be ordered to take a parenting class. If you are afraid of the other parent or if that parent has a tendency to be abusive toward the children, you may want to request supervised visitation, that is, visitation with some other adult present and in a protected location. If you ask for this, you need to think carefully before you go to court about who could do this and where you want the visitations to take place. You can ask that your local Department of Social Services be ordered to provide supervision of visitation, but be aware that you will be charged a fee. Supervised visitation is a temporary solution and usually is considered only in extreme cases. 8. HOW DO I GET VISITATION OR CHANGE AN ALREADY-EXISTING ORDER? A non-custodial parent who feels he or she is not seeing enough of the child can also file a petition with the Juvenile Court for visitation in just the same way a custody petition is filed. Either parent can also seek to modify an existing custody or visitation order by filing a motion to amend in the court that entered the prior order (again, the juvenile court has preprinted forms for this purpose). Keep in mind that any party petitioning to have the terms of an existing order amended would have to demonstrate to the Court: (1) that there has been a change of circumstances since the prior order was entered; and (2) that this change makes a modification in the child's best interests. The Court will generally refuse to hear evidence of things that happened before the current order was entered. TO THE READER: This pamphlet contains general legal information. For advice on your particular legal problem, you should contact an attorney. 1. HOW DO I GET CHILD SUPPORT? By filing a petition with the Juvenile and Domestic Relations District Court in the county where the child lives. The Court Services Unit will help you file the necessary papers. You will need a street address (not a post office box number) of the parent from whom you are seeking support so that he or she can be served by the deputy sheriff. You can and should file a petition for custody, and for spousal support for yourself if appropriate, at the same time you file for child support. 2. HOW MUCH CHILD SUPPORT CAN I GET? When filing for support, don’t ask for a specific amount; simply ask that support be set in accordance with the Virginia child support guidelines. Otherwise, you risk asking for too little -- the court cannot order support payments in an amount greater than that asked for in the petition. Child support is set according to guidelines established by the Virginia General Assembly, which are attached to this pamphlet. The guidelines establish a basic monthly support obligation for both parents that is based on their combined monthly income before taxes. The non-custodial parent pays a percentage of that monthly support obligation, based on the percent that his or her income is of the combined total. Occasionally, the Court will adjust the final support award up or down from that figure to take into account special circumstances. A worksheet used by the courts to calculate support according to the guidelines is attached to this pamphlet. Certain monthly expenses are added to the basic monthly support obligation before multiplying by the percentage. Any monthly childcare costs that you incur in order that you may work are added before the percentage is taken. Extraordinary medical and dental expenses are also added to the basic monthly support obligation before taking the percentage. These are medical or dental expenses not covered by insurance that are more that $100 for a single illness or condition. EXAMPLE: Say you have custody of two children, that you make $1,000 per month before taxes, and that the other parent also makes $1,000 per month: (1)Add the two incomes together to arrive at a combined monthly income of $2,000. (2) Look at the attached guidelines at the $2,000 level; you will see that the basic monthly support obligation of both parents at that combined monthly income level for two children is $523. (3) Because the other parent's income is half, or 50%, of the combined total, he or she would pay 50% of the $523, or $261.50 per month in child support. (4) Say that in order to earn your income, you had to pay $200 per month in child care costs. Then you would add $200 to the $523, for a total of $723, before taking the percentage; your child support would be 50% of $723 or $361.50 per month. In cases involving split custody, that is, where each parent has physical custody of a child born of the relationship, the support obligation of each parent as a noncustodial parent is calculated, with the parent owing the largest amount paying the difference to the other parent. In cases where one parent has custody, but the other has physical custody through visitation for more than 90 days of the year, the basic monthly support obligation for both parents is multiplied by 1.4; that figure is then multiplied by the other parent's custody share (the number of days that parent has physical custody during the year divided by 365) to arrive at the basic monthly support obligation figure for each parent any special expenses described in the preceding paragraph are added to that figure, then actual support is determined by multiplying it by the parent's percentage of the combined monthly gross income. If the custodial parents’ income is at or below 125% of the Federal Poverty Guidelines, then support is figured by the child support guidelines in the usual way without regard to how much visitation the non-custodial parent has. 3. WILL THE COURT ORDER THE OTHER PARENT TO PROVIDE MEDICAL INSURANCE FOR THE CHILDREN? Yes, IF you ask for it in your petition when you file. If the absent parent is working and has insurance through his or her job, you should ask the Court for an order requiring that you and the children be carried on the insurance and that all medical cards, claim forms and other necessary documents be provided to you so that you can use it. However, be aware that if money is deducted from the other parent's check by the employer to pay for medical coverage, the amount of child support you will be awarded may be reduced by the same amount. 4. WHAT IF I DO NOT KNOW HOW MUCH THE OTHER PARENT IS MAKING? The support guidelines are only as good as the numbers you plug into them. If you know where the other parent works, you can find out exactly how much he or she makes by asking the Clerk of the Court to issue a subpoena duces tecum to the employer. This special type of subpoena orders that certain documents be delivered to the Court by the custodian, or keeper, of those documents. You would be asking that the other parent's wage and hour records for a specified period (we suggest for the last 12 months through to the date of the hearing) be delivered to the Court on the hearing date by the custodian. You can also have the Clerk of Court subpoena the custodian himself if you want him to answer questions about the records. To get a subpoena duces tecum issued, you will need the street address (not a post office box number) of the employer and the name of the person who is the keeper of these documents (usually the paymaster). You also need to be as specific as possible in describing the records or documents you want subpoenaed. If you believe the other parent has quit his or her job in order to avoid paying support, it may be a good idea to subpoena the wage and hour information from his or her most recent employer. If the judge agrees that the parent is voluntarily unemployed, he can use that income information as a basis for setting support anyway, since that parent has the proven capability of making that much. Judges won't allow parents to escape their obligation to support their children so easily. 5. WILL THE COURT ALWAYS SET CHILD SUPPORT IN ACCORDANCE WITH THE GUIDELINES? Not always. The judge may find that certain circumstances exist that make application of the guidelines unfair or inappropriate. Factors that the judge will consider include: the arrangements which have been made regarding the children's custody; whether the parent has other children to support; whether either parent has incurred debts for the benefit of the children; or whether either parent has special expenses necessary for the production on income. Taking these factors into account, the judge may set the support award at a level higher or lower than what the guidelines call for. However, if the judge departs from the guidelines, he is required to state in writing in the support order the reasons that he is doing so. 6. HOW CAN I GET ALIMONY? TIP: Unlike for child support, you should request a specific amount for spousal support. Also ask that your spouse be required to provide you with health insurance. By filing a petition for spousal support, as it is now generally called, in the Juvenile and Domestic Relations District Court. You can make the request on the same petition as your request for child support. Unlike child support, spousal support is not set according to state guidelines but is decided by the judge depending upon the specific circumstances of each case. Factors considered include: the earning capacity of each party; the financial needs of each; the age, education, and physical and mental condition of each; the standard of living during the marriage; the length of the marriage; and the contributions to the marriage made by each side. If your marriage did not last very long, if your spouse did not support you during the marriage, and/or your employment prospects are good, you should not expect to receive spousal support. If you are guilty of adultery, abuse or desertion, you cannot receive spousal support. Courts have been using a formula as a rule of thumb to estimate the approximate amount to order as spousal support. The formula is 30% of the absent spouse's gross monthly income, minus 50% of the petitioning spouse's monthly income. For example, if the absent spouse earns $2,000 gross per month and you earn $500 per month gross, a court using this formula would: take 30% of $2,000 ($600); 50% of $500 ($250); and then subtract $250 from $600 to arrive at a spousal support amount of $350 per month. Keep it mind that this formula is simply a rule of thumb as a beginning point for determining spousal support; attached to this brochure is a form Income and Expense Statement which you should fill out and present to the judge to demonstrate your financial need. 7. WHAT IF I GET COURT-ORDERED SUPPORT BUT THE OTHER PARENT DOESN'T PAY? Once support is ordered, either at the intake hearing or by the judge at a formal hearing, the order remains in effect until it is changed by the court. The court only changes the order if one of the parties files a petition asking it to do so, and if it finds there has been a change of circumstances justifying a change since the previous order was entered. If the other parent is more than a month behind in the payments, you should file a motion for judgment on arrears (that is, past due support) and a motion for show cause summons. The clerk's office has pre-printed forms for filing these motions. In the motion for judgement on arrears, you are asking for a judgement for the entire amount of past-due support. Keep careful track of every payment made and every payment missed, because unless you ask for a specific amount of past-due support, the judge will not be able to enter a judgement in your favor. The show-cause summons orders the other parent to a hearing to explain why he or she should not be held in contempt for failing to abide by the court's order. You will need to appear at this hearing to testify about the payments missed. Although this is a civil rather than a criminal proceeding, a finding of contempt could result in a jail sentence of up to one year. Therefore, the other parent is entitled to be represented by an attorney at the show cause hearing. If he or she cannot afford an attorney, one may be appointed for him or her. Upon a finding that support is past due, the judge can order the responsible parent to pay the amount in addition to current support to catch up. You should ask the judge for mandatory wage withholding, that is, an order that all such payments be deducted from the parent's paycheck and sent directly to you. TO THE READER: This pamphlet contains general legal information. For advice regarding your particular legal problem, you should contact an attorney. 1. WHAT ARE THE GROUNDS FOR DIVORCE IN VIRGINIA? There are six grounds for divorce in Virginia: No-Fault: Separate and apart for one year -- this is probably the most common ground for divorce, and is available where the wife and husband have lived apart continuously for one year without cohabitation at any time during that period. No-Fault: Separate and apart for six months-- this ground can be used only if there are no children of the marriage under 18 and the parties have a written separation agreement. Adultery -- the adultery must have occurred within the past five years and you must not have continued to live with your spouse after you found out about it. Adultery is very difficult to prove and usually requires numerous court appearances. Desertion plus one year separation -- your spouse left the marital home without a good reason and with no intent to return, and you have been separated continuously for at least one year. Note: If you leave the home because of abuse, it is not desertion because you had a good reason to leave. Cruelty plus one year separation -- the marriage was abusive and you and your spouse have not lived together for at least one year. Conviction of a Felony -- the spouse's conviction must have resulted in confinement in a state or federal penitentiary for more than one year. If both you and your spouse are Virginia residents, you would file for a divorce in the Circuit Court of the county where the two of you last lived together, or where your spouse now lives. If your spouse lives in a different state, or if you do not know where your spouse lives, then you may file for divorce in the county where you live. Rappahannock Legal Services does not handle divorce, but we will give advice only to persons who are in the process of getting a divorce. If you are served with divorce papers by your spouse, you should seek advice from a lawyer as quickly as possible. 2. WHAT IS LEGAL SEPARATION? There is no court proceeding for a legal separation in Virginia. If a husband and wife are living separate and apart, they are legally separated without going to court. There is a proceeding in Virginia which results in a divorce from bed and board, or a non-final divorce, and which is sometimes (mistakenly) called a legal separation. This type of divorce does not end the marriage. Neither party can remarry. Sexual relationships with others will still be considered adultery. This type of proceeding can be used to solve problems of alimony, custody, or child support, or to prohibit abusive behavior, but many of these problems can be handled more easily in Juvenile Court (see our bulletins on custody, support and abuse). It is not necessary to get this type of divorce in order to be granted a final divorce after a year of separation. A separation agreement is a written agreement between a husband and wife on how certain issues related to your marriage will be resolved, issues such as: division of property; determining who pays which bills; custody and visitation; or child and spousal support. It is only good if both you and your spouse sign it. No one can be forced to sign a separation agreement, and it is not wise to do so before talking to a lawyer. This is not a court order, however, and your options are limited of the other party does not live up to the agreement. 3. HOW IS PROPERTY DIVIDED IF THE HUSBAND AND WIFE CANNOT AGREE? When the Court grants a final divorce, it will also decide how the property is to be divided between the husband and the wife if either party has asked the Court to do so. This is called equitable distribution of marital property. The Court divides the parties' property into three categories: husband's property; wife's property; and marital property, which generally is property acquired during the marriage. Equitable distribution does not necessarily mean equal distribution. The Court will divide the marital property after considering many factors, such as: in whose name the property is titled; when and how it was acquired; what contributions were made by the husband and the wife to the acquisition and maintenance of the property; how long was the marriage; what the relative physical and mental conditions of the parties are; and whether the husband or wife is at fault for the marriage ending. After considering all of these factors and others if necessary, the Court may make a money award from one party top the other, or partition (divide) property titled in both names. If the Court makes a money award, the husband or wife may transfer property instead to satisfy the award if the Court approves. 3. CAN I GET CUSTODY AND SUPPORT FOR MY CHILDREN BEFORE FILING FOR THE DIVORCE? Yes. You may ask the Juvenile and Domestic Relations District Court in the county where the children live to determine custody and /or support. The Clerk of the Court will be able to help you file the necessary papers. (Refer to our custody and support bulletins). If your marriage involved physical abuse or threats of abuse and you and/or your children continue to be in danger, there are legal remedies for your protection. Please see our pamphlet on abuse and call us to discuss your options. TO THE READER: This pamphlet contains general legal information. For advice regardingyour particular legal problem, you should contact an attorney. 1. WHAT IS ABUSE? When we talk about abuse in this pamphlet, we are talking about the abuse of a woman by a man in her life. The man may be a boyfriend, husband, relative or ex-husband. The abuse may be words or actions. It may be anything from insults, threats, slaps, kicks or punches to choking, beating with a weapon, stabbing or shooting. No one, for whatever reason, has a right to inflict his violent behavior on you. Regardless of what you may have done or not done, you have a right to work out your problems in a way that does not involve violence. Violence does not go away if you ignore it. Once violence starts in a relationship, it almost always gets worse. Children who witness domestic violence can suffer severe emotional harm and you may be guilty of abuse or neglect yourself, if as a parent you do nothing to protect your children from such harm. Doing nothing in the hope that the violence will not happen again can cause great damage to your emotional well-being and self-esteem, as well. Doing nothing could also lead to future physical harm and even cost you your life. 2. WHAT IS A PROTECTIVE ORDER? A civil protective order can issued by a court to protect you in cases of family abuse.The law defines family abuse as: any act of violence, including any forceful detention (that is, holding you against your will), which results in physical injury or places you in reasonable fear of serious bodily injury and is committed by a family or household member. The law defines family or household member very broadly to include any of the following: (1) Your spouse or former spouse, whether or not he or she resides in the same home as you; (2) Your parents, stepparents, children, stepchildren, brothers, sisters, grandparents or grandchildren if they reside in the same home as you; (3) Your mother-in-law, father-in-law, sons-in-law, daughters-in-law, brothers-in-law or sisters-in-law if they live in the same home as you; (4) any person with whom you have had a child, whether or not he lives or has ever lived with you; or (5) any person who cohabits with you now or has cohabited with you within the last 12 months (that is, a live-in or former live-in boyfriend or girlfriend) and any children of that person, whether yours or not, living with you now. NOTE: The only type of protective order available no matter what your relationship with the abuser is a protective order issued for stalking when a warrant for arrest of the alleged stalker has been issued.A protective order is only a piece of paper. It cannot stop a knife or a bullet and may not have much effect on a person who is drunk or out of control. However, it can help stop an abusive situation in one of two ways: It tells the abuser that certain behavior will not be allowed or tolerated. It can convince the police or sheriff's department to take action in future abuse situations because a court has already said that the abuse is serious. The court can order that the family abuser be excluded from the home, that is, not allowed to live there for up to two years. This is called an exclusion order. The court can also order that you have sole possession and use of a family car. If you request exclusion orders you should ask the judge to require that the abuser turn over his keys to the home and the car that you will be exclusively using. You can request that the order contain any number of conditions needed to adequately protect yourself and your children, or other family members being harmed by the abuse. You should ask whomever is issuing you a protective order to impose any of the following conditions that you think are necessary: forbidding any further acts of abuse or harassment; prohibiting the abuser from having any further contact with you (and your children, if necessary), or limiting those contacts to whatever is appropriate under the circumstances; ordering the abuser into counseling (and you into counseling, too if you consent); or requiring the abuser to provide alternative housing for you and any other family or household member. You can also ask that the abuser be put out of the home. 3. HOW DO I GET A PROTECTIVE ORDER? There are several ways to get a protective order. You can request one at your local magistrate's office. You can ask a police officer who has responded to a domestic violence call at your home or elsewhere to issue an emergency protective order. You can also apply for a protective order by filing a petition at the clerk's office of the Juvenile and Domestic Relations Court in the city or county where you live. You do not need a lawyer to do this. The clerk of the court or an intake officer of the court services unit will help you. The petition must be filed within a reasonable period of time after the abuse has occurred. If either the magistrate or a police officer issue you a protective order on an emergency basis, you will still need to go to the clerk's office and apply for a permanent protective order. Preliminary protective orders: After you have applied for a permanent protective order through the clerk's office, the court can enter a preliminary protective order against the abuser prior to a full hearing on the matter, if it finds this is necessary to protect your health and safety. Such a preliminary protective order can be entered after an emergency ex parte hearing, that is, a hearing where only you and your witnesses are present, not the abuser. Judges do not ordinarily enter orders against persons who have not had a chance to present their side, but they will do so if you can show that there is an immediate and present danger of family abuse requiring such an order. You would have to demonstrate serious injuries or bring witnesses to establish probable cause that family abuse recently occurred. The preliminary protective order, whether ex parte or entered after a short hearing with both sides present, can order the abuser excluded from the home or any other relief normally available after a full hearing except for an order for counseling. If an exclusion order is entered, a deputy sheriff would then serve the order on the abuser and ensure that he leaves. A full hearing on the protective order is required to be scheduled within 15 days after the preliminary protective order is entered. Emergency protective orders: If the police are called to respond to a domestic violence call, the officers can issue an emergency protective order if they can determine that the abuser has committed family abuse AND if there is probable danger of further abuse unless an order is entered. If the officers find sufficient evidence, they can call the judge or magistrate on duty for approval and issue a written emergency protective order on the spot. If the police are not called or do not issue an emergency protective order to you, you can go to the magistrate's office yourself and request that an emergency protective order be issued on the same basis. The emergency order can grant you exclusive use of the home, just like in a preliminary or permanent protective order. But it is very temporary, expiring at 5 p.m. the next business day or within 72 hours, whichever is longer, so you will still need to go to the clerk's office to file for a permanent protective order. for longer-term protection. If the magistrate or the JDR intake officer decide that there is either not enough evidence or the circumstances are not appropriate to issue an emergency or ex parte preliminary protective order, you should still file a petition at the JDR Court for a permanent protective order, and the court will schedule a hearing for a later time, with the abuser notified of the date. This is the same hearing that the law requires to have occurred anyway within 15 days after an emergency or preliminary ex parte order had been entered. If you petition for a permanent protective order without having an emergency or preliminary protective order in place, there is nothing to keep the abuser from having contact with you, so you should take precautions to protect yourself. The abuse shelter listed in this brochure can help you create a Safety Plan or offer shelter at a safe house if necessary. At the full hearing on whether a permanent protective order will be entered, the judge will listen to both sides and consider any evidence that either of you offer. If you received medical attention for injuries caused by the abuse, bring a medical report or other documentation to the hearing. Bring any witnesses with you who can verify the abuse. A reluctant witness or a law enforcement officer can be compelled to come to the hearing by having a subpoena issued -- see the Juvenile Court clerk about this at least ten days prior to the hearing date. The judge can enter a protective order effective for a specified period of up to two years. Any violation of the protective order by the abuser puts him in contempt of court, which can result in his being put in jail. If he has violated an order that forbids him from going on certain property, from contacting certain people, or from engaging in further acts of family abuse, he would also be guilty of a Class I misdemeanor which carries a penalty of up to a full year in jail. The law has recently been changed to prohibit the entire jail term from being suspended, so that it is now mandatory that at least some jail time be served. It is also unlawful for someone subject to a protective order to purchase or transport any firearm while the protective order is in effect. If an abuser violates a protective order, you should either call the police and swear out a warrant or file a show cause motion at the clerk's office at the JDR court.The most common types of criminal warrants available in abuse situations are: Cursing and abusing-- the other person said things to you to get you mad or threaten you. Assault -- the other person has threatened you with bodily injury and you believed you would be hurt. Battery -- the other person touched you without your permission. A battery can be anything from a push or a slap with an open hand to punching, kicking, choking, etc. Stalking-- the other person has engaged in a series of actions (at least two) with the intent to place you in fear of death, sexual assault, or bodily injury to yourself or to a family member. 4. INSTEAD OF A CIVIL PROTECTIVE ORDER, CAN I TAKE CRIMINAL ACTION? Yes. It is a crime to touch or threaten to touch another person without that person's permission. You can start a criminal action by getting a warrant. Criminal warrants are issued by magistrates, most of whom are available 24 hours a day. The magistrate will decide whether or not to issue a warrant based on the facts and how you present them. Some of the things the magistrate will consider are: How soon after the violence did you ask for the warrant? The more recent the incident, the more likely one will be issued. Do you have witnesses or other evidence that the abuse took place and that the person you are accusing did it? Was either person drinking? CRIMINAL OR CIVIL? If you get a criminal warrant against an abuser, or if the police make a warrantless arrest of the abuser, make sure the attending police officer or the issuing magistrate also issue you an emergency protective order, which they are required to do by law, and follow-up by going to the JDR Court on the next business day to fill out a petition for a civil protective order. You need to do both because, in the case of the criminal warrant, you are just the complaining witness; it is the State or the Commonwealth's Attorney, not you, who has control over the case. You are the party with control in a civil protective order case, on the other hand. A protective order offers different remedies than a criminal action, including exclusive use of a joint residence or car. A criminal action may end up getting dropped or take months to be heard. By the same token, it is important to file criminal charges in addition to requesting a protective order because criminal prosecution offers remedies not available in protective order hearings, such as physical confinement or restitution for physical injuries. You must be able to convince the magistrate that yours is a case requiring legal action and, very importantly, that you are serious about following through the process. You can bring a friend with you for support, but your friend will be allowed to talk only if she was a witness to the abuse. If a warrant is not issued, you may want to seek legal advice. The abuser can be arrested without a warrant, if a police officer responds to a domestic violence call and has probable cause to believe that your abuser was the primary aggressor and committed family abuse. If the police officer can determine who the primary aggressor is, new changes in the law now make it mandatory to arrest the primary aggressor. The police officer can make exceptions with good cause, but must then include the special circumstances convincing them not to make the arrest in a written report that the department must make available to you upon request. Police officers are also supposed to provide you with written information about available legal and community resources and assist with transportation to safety. It is very important to create a documented record of abuse, because more often than not the abuse is an ongoing problem that will occur again. If your abuser is charged with a third assault and battery after two prior misdemeanor convictions, it will be a Class 6 felony and he will face much steeper penalties. If you had not gone forward on prior incidences of abuse and gotten convictions, you may later regret not being able to bring the felony charge he deserves. If a crime results in a physical injury and you report it to the police within 120 hours, you are eligible for crime victims' compensation from the State. If you have children with the abuser and are thinking about leaving to stay with family who are out of state, you will stand a much better chance of being allowed to file for custody immediately in the new state if you have a valid protective order in place here or can show the court in the new state a certified copy of a criminal conviction for family abuse. Otherwise, you may be forced to come back to Virginia to litigate custody if the abuser files for custody here before you have established your six-month residency in the new state. 5. WHAT HAPPENS AFTER I GET A CRIMINAL WARRANT? The abuser will be arrested. This may consist of his simply being issued a summons to appear in court on a certain date, or he may be taken into custody. If he is taken into custody, he will probably not be held unless he is either drunk or threatening, but instead released after being told when to appear in court and that he will be re-arrested if he gets into more trouble. If he is held, he will be taken before a judge on the next business day. The judge will usually not order him to be held further, especially if he has a job. The judge will set bond, which is an amount of money he will have to pay if he does not show up for his court date, and then release him. You will be summoned to appear in court on the date set for the hearing on the warrant. The case will be heard in Juvenile and Domestic Relations Court if family abuse is involved, or in General District Court if not. Either way, it will be prosecuted by the Commonwealth's Attorney. Before the hearing date, you should contact the office of the Commonwealth's Attorney to let them know that you are following through with the warrant and want the abuser prosecuted. (Be aware that the Commonwealth's Attorney can and often does refuse to permit the charges to be dropped once they are filed). At the hearing, the judge will listen to you, the abuser and any witnesses and then make a decision. If he is found guilty, you should tell the judge what you would like to see happen, such as his going to jail, or being ordered into counseling, or having his sentence taken under advisement (suspended) on the condition he agrees to stay away. As you are the injured person, the judge should listen to what you have to say.Because the accused abuser might get jail time if convicted, he will be entitled to a lawyer. Although it seems unfair, you as the injured person are not entitled to a lawyer, as a criminal case is considered to be the Commonwealth's case, not yours. 6. IF I DECIDE TO LEAVE MYSELF, HOW DO I GET OUT? The easiest way to leave is when the abuser is not around, but this is not always possible. If the abuser is threatening you, you need to get out before he becomes physically violent. If you can, call the police or the sheriff, or send a child to tell a neighbor to call. They will come and make sure you are able to leave without interference and, if they witness the abuse or threats or if the abuser is very drunk, they may be able to remove him from the home. There are times when it is simply impossible to get out before the violence begins. In that case, all you can do is try to avoid serious injury and plan to leave or have the abuser removed as soon as you can. 7. MAY I TAKE MY CHILDREN SHOULD I DECIDE TO LEAVE? It is much easier to get court-ordered custody of your children if you already have them with you. Taking them with you is not kidnaping. Unless either you or the children's father already has court-ordered custody, you both have equal rights to the children. See our brochure on custody for more information. 8. WHAT CAN AND SHOULD I TAKE WITH ME WHEN I LEAVE? The most important items to take are the papers you will need to conduct your business, apply for welfare benefits, or take legal action. These would include: birth certificates for you and your children; Social Security cards; your marriage certificate; your checkbook; your savings account book and charge cards; insurance policies; proof of your income such as pay stubs or tax returns; and bills you are responsible for. You can also take personal items such as your clothes and jointly owned items if you can take them without causing a disturbance. If the children are coming with you, you can also take their furniture, clothes, toys, or gifts. If you are married to the abuser, you should know that both you and he have rights to property purchased during the marriage. If you cannot agree on how to divide it, a judge can do so after a divorce is filed. You can take any property, including a vehicle, that is yours alone or yours and your husband's jointly. Don't take any property belonging to your husband alone. If you cannot get into the house to get your belongings, you can go to the General District Court for your county or city and file a Warrant in Detinue for that property which belongs to you alone. The clerk will help you. You would provide a list of all the items you want and the value for each. The cost to file is about $18 (it varies depending on the court). A hearing would be scheduled, at which you would have to prove that the items belonged to you. The judge can order that the items be returned to you or that you be paid their value. You can do this without a lawyer, although you may want to consult with one before proceeding. If you are able to exclude the abuser from your home by getting a protective order that grants you exclusive use of the home, you should still take precautions to protect yourself and your property. If someone you are married to or involved with steals your property, the police are unlikely to get involved. You may want to changes the locks, dead bolt the doors, secure the windows, and notify neighbors of the restraining order, to prevent break ins and theft. You may also want to put any items of significant value in storage or a safe place away from your home, until you can settle your joint property issues. If the phone or utilities are in the abuser's name, you should be prepared to set up your own accounts. 9. WHAT IF I WANT TO LEAVE, BUT CANT? Virginians Against Domestic Violence operates a state-wide hotline to help abuse victims find a safe place to go, or someone they can talk to, or appropriate referrals. Their toll-free number is 1800838-8238. Rappahannock Counsel on Domestic Violence provides numerous services for abused women and their children, including an emergency shelter serving residents of the city of Fredericksburg and the counties of Caroline, King George, Spotsylvania and Stafford. Their hotline number is 373-9372.If you are a victim of sexual assault or sexual abuse, contact the Rappahannock Council Against Sexual Assault at 371-1666 for crisis intervention services, information and referrals. 10. OTHER IMPORTANT TELEPHONE NUMBERS: Magistrate Offices: Fredericksburg 898-1080 // Caroline 633-9245 // King George 775-7820 Spotsylvania: 898-1080 // Stafford: 659-2968 Victim-Assistance Programs: Fredericksburg: 372-1040 Caroline: none King George: 775-4442 Spotsylvania: 582-7261 Stafford: 658-4301 State Division of Crime-Victims' Compensation: 1-800-552-4007 Commonwealth Attorneys: Fredericksburg: 372-1040 Caroline: 633-7170 King George: 775-4442 Spotsylvania: 582-7148 Stafford: 658-8780 JDR Intake\Clerk’s Offices: Fredericksburg: 372-1068 \ 372-1072 Caroline: 633-9340 \ 633-9550 King George: 775-9044 \ 775-9500 Spotsylvania: 582-7218 \ 582-7129 Stafford: 658-8771 \ 658-8775 |
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