2006 Code of Virginia § 16.1-253 - Preliminary protective order

16.1-253. Preliminary protective order.

A. Upon the motion of any person or upon the court's own motion, the courtmay issue a preliminary protective order, after a hearing, if necessary toprotect a child's life, health, safety or normal development pending thefinal determination of any matter before the court. The order may require achild's parents, guardian, legal custodian, other person standing in locoparentis or other family or household member of the child to observereasonable conditions of behavior for a specified length of time. Theseconditions shall include any one or more of the following:

1. To abstain from offensive conduct against the child, a family or householdmember of the child or any person to whom custody of the child is awarded;

2. To cooperate in the provision of reasonable services or programs designedto protect the child's life, health or normal development;

3. To allow persons named by the court to come into the child's home atreasonable times designated by the court to visit the child or inspect thefitness of the home and to determine the physical or emotional health of thechild;

4. To allow visitation with the child by persons entitled thereto, asdetermined by the court;

5. To refrain from acts of commission or omission which tend to endanger thechild's life, health or normal development; or

6. To refrain from such contact with the child or family or household membersof the child, as the court may deem appropriate, including removal of suchperson from the residence of the child. However, prior to the issuance by thecourt of an order removing such person from the residence of the child, thepetitioner must prove by a preponderance of the evidence that such person'sprobable future conduct would constitute a danger to the life or health ofsuch child, and that there are no less drastic alternatives which couldreasonably and adequately protect the child's life or health pending a finaldetermination on the petition.

B. A preliminary protective order may be issued ex parte upon motion of anyperson or the court's own motion in any matter before the court, or uponpetition. The motion or petition shall be supported by an affidavit or bysworn testimony in person before the judge or intake officer whichestablishes that the child would be subjected to an imminent threat to lifeor health to the extent that delay for the provision of an adversary hearingwould be likely to result in serious or irremediable injury to the child'slife or health. If an ex parte order is issued without an affidavit beingpresented, the court, in its order, shall state the basis upon which theorder was entered, including a summary of the allegations made and thecourt's findings. Following the issuance of an ex parte order the court shallprovide an adversary hearing to the affected parties within the shortestpracticable time not to exceed five business days after the issuance of theorder.

C. Prior to the hearing required by this section, notice of the hearing shallbe given at least twenty-four hours in advance of the hearing to the guardianad litem for the child, to the parents, guardian, legal custodian, or otherperson standing in loco parentis of the child, to any other family orhousehold member of the child to whom the protective order may be directedand to the child if he or she is twelve years of age or older. The noticeprovided herein shall include (i) the time, date and place for the hearingand (ii) a specific statement of the factual circumstances which allegedlynecessitate the issuance of a preliminary protective order.

D. All parties to the hearing shall be informed of their right to counselpursuant to 16.1-266.

E. At the hearing the child, his or her parents, guardian, legal custodian orother person standing in loco parentis and any other family or householdmember of the child to whom notice was given shall have the right to confrontand cross-examine all adverse witnesses and evidence and to present evidenceon their own behalf.

F. If a petition alleging abuse or neglect of a child has been filed, at thehearing pursuant to this section the court shall determine whether theallegations of abuse or neglect have been proven by a preponderance of theevidence. Any finding of abuse or neglect shall be stated in the court order.However, if, before such a finding is made, a person responsible for the careand custody of the child, the child's guardian ad litem or the localdepartment of social services objects to a finding being made at the hearing,the court shall schedule an adjudicatory hearing to be held within thirtydays of the date of the initial preliminary protective order hearing. Theadjudicatory hearing shall be held to determine whether the allegations ofabuse and neglect have been proven by a preponderance of the evidence.Parties who are present at the hearing shall be given notice of the date setfor the adjudicatory hearing and parties who are not present shall besummoned as provided in 16.1-263. The adjudicatory hearing shall be heldand an order may be entered, although a party to the hearing fails to appearand is not represented by counsel, provided personal or substituted servicewas made on the person, or the court determines that such person cannot befound, after reasonable effort, or in the case of a person who is without theCommonwealth, the person cannot be found or his post office address cannot beascertained after reasonable effort.

Any preliminary protective order issued shall remain in full force and effectpending the adjudicatory hearing.

G. If at the preliminary protective order hearing held pursuant to thissection the court makes a finding of abuse or neglect and a preliminaryprotective order is issued, a dispositional hearing shall be held pursuant to 16.1-278.2. Upon receipt of the order by a local law-enforcement agency forservice, the agency shall enter the name of the person subject to the orderand other appropriate information required by the Department of State Policeinto the Virginia Criminal Information Network established and maintained bythe Department pursuant to Chapter 2 ( 52-12 et seq.) of Title 52. Wherepractical, the court may transfer information electronically to the VirginiaCriminal Information Network. A copy of the preliminary protective ordershall be served as soon as possible on the allegedly abusing person in personas provided in 16.1-264, and upon service, the agency making service shallenter the date and time of service into the Virginia Criminal InformationNetwork. The preliminary order shall specify a date for the dispositionalhearing. The dispositional hearing shall be scheduled at the time of thehearing pursuant to this section, and shall be held within seventy-five daysof this hearing. If an adjudicatory hearing is requested pursuant tosubsection F, the dispositional hearing shall nonetheless be scheduled at thehearing pursuant to this section. All parties present at the hearing shall begiven notice of the date and time scheduled for the dispositional hearing;parties who are not present shall be summoned to appear as provided in 16.1-263.

H. Nothing in this section enables the court to remove a child from thecustody of his or her parents, guardian, legal custodian or other personstanding in loco parentis, except as provided in 16.1-278.2, and no orderhereunder shall be entered against a person over whom the court does not havejurisdiction.

I. Neither a law-enforcement agency, the attorney for the Commonwealth, acourt nor the clerk's office, nor any employee of them, may disclose, exceptamong themselves, the residential address, telephone number, or place ofemployment of the person protected by the order or that of the family of suchperson, except to the extent that disclosure is (i) required by law or theRules of the Supreme Court, (ii) necessary for law-enforcement purposes, or(iii) permitted by the court for good cause.

J. Violation of any order issued pursuant to this section shall constitutecontempt of court.

K. Upon receipt of the order by a local law-enforcement agency for service,the agency shall enter the name of the person subject to the order and otherappropriate information required by the Department of State Police into theVirginia Criminal Information Network established and maintained by theDepartment pursuant to Chapter 2 ( 52-12 et seq.) of Title 52. Wherefeasible and practical, the court may transfer information electronically tothe Virginia Criminal Information Network. A copy of the preliminaryprotective order shall be served as soon as possible on the allegedly abusingperson as provided in 16.1-264, and upon service, the agency making serviceshall enter the date and time of service into the Virginia CriminalInformation Network. The preliminary order shall specify a date for the fullhearing.

Upon receipt of the return of service or other proof of service pursuant tosubsection C of 16.1-264, the clerk shall forward forthwith an attestedcopy of the preliminary protective order to the local police department orsheriff's office which shall, upon receipt, enter into the Virginia CriminalInformation Network any other information required by the State Police thatwas not previously entered. If the order is later dissolved or modified, acopy of the dissolution or modification order shall also be attested,forwarded and entered in the Virginia Criminal Information Network asdescribed above.

L. No fee shall be charged for filing or serving any petition or orderpursuant to this section.

(1977, c. 559; 1985, c. 595; 1986, c. 308; 1987, c. 497; 1996, c. 866; 1997,c. 790; 1998, c. 550; 2002, cc. 508, 810, 818.)