Domestic violence cases not only include criminal charges but also routinely include a protective order/restraining order and potential child custody issues. Our Fairfax domestic violence lawyer provides guidance on how Virginia courts handle family abuse charges, protective orders, and related issues. Contact us today to schedule a consultation with an accomplished criminal defense attorney.
Police will determine the primary aggressor on-scene and make an arrest. That person is taken to jail, booked, and held until a magistrate reviews the charges. That initial hearing usually happens within hours, though it can stretch overnight depending on the time of arrest. The magistrate decides whether to set bond or hold the person until the next court session.
Police will try to question the accused before the arrest to obtain statements that will be used against the accused if the case goes to trial. Remember, you have the right to remain silent and to ask for a lawyer before answering any questions from a police officer. Answering questions without your domestic violence lawyer present can create evidence that Fairfax prosecutors will later use in court. Requesting an attorney stops questioning by the police.
Restraining orders often go hand in hand with a domestic violence arrest. Most individuals charged with domestic assault & battery are served with an emergency protective order immediately after being arrested. That order restricts contact with the alleged victim, removes access to a shared home, and remains active for 72 hours. However, the alleged victim can petition for a permanent protective order for up to 2 years.
Virginia courts make custody decisions based on what serves the child’s best interests, and allegations of domestic violence dramatically impact child custody decisions. Courts consider whether each parent can provide a safe environment, so an active protective/restraining order can adversely impact any custody issues.
A domestic violence conviction can tip the scales toward the non-offending parent. If a protective/restraining order is granted, that order can restrict a parent from seeing their child, even if the child is not the victim of the alleged abuse. The law also recognizes family abuse as part of a custody evaluation, including emotional abuse or threats, not just physical harm. Judges weigh the frequency, severity, and timing of incidents.
If a protective order is issued, it can immediately change custody arrangements. Unfortunately, once a protective/restraining order is issued, it is often used by the other party as leverage.
With so much at stake, having a knowledgeable attorney is crucial to effectively challenge a domestic violence allegation in Fairfax.
Anyone subject to an emergency, preliminary, or permanent/ restraining order can file a motion to dissolve it or modify it under Virginia Code §19.2-152.10. Courts are required to give priority to those motions and set a hearing.
Violating a protective order is a separate criminal offense, a class 1 misdemeanor that requires imposition of a jail sentence; however, the jail sentence cannot exceed twelve months, and may include fines and an additional protective order. If the violation involves assault, stalking, or a similarly serious act, the penalty may increase. So, be careful that you do not violate a protective/restraining order while your criminal case and protective case are pending.
A person charged with domestic assault & battery can be subject to a protective order even if the criminal case is still pending and the person is still in jail. Again, judges issue these orders quickly once a person has been charged. That means a protective order can affect custody, housing, and even your ability to contact family before guilt or innocence is determined and before you are released from custody.
The best way to protect your rights and present the most sound legal defense is by hiring a reputable Fairfax domestic violence attorney like Manuel Leiva.
As a Fairfax domestic violence lawyer, Manuel Leiva draws on more than twenty-five years of criminal trial experience in Virginia courts. He founded The Leiva Law Firm after working as a public defender, and he continues to defend people charged with family abuse, assault, and related offenses. Contact us today.
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