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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

First Court Appearance: Reaching a Settlement in a Protective Order Case?

Dear readers, it had to happen someday.  After avoiding darkening the door of the Roanoke City Circuit Court in January, by reaching a settlement ten minutes before the hearing, in what would have been my first courtroom appearance since retiring from government service, yesterday, I made an appearance in the Roanoke City General District Court for a hearing on extending a Preliminary Protective Order.  If you are not familiar with the process in Virginia, there are three basic types of protective orders — Emergency, Preliminary, and Permanent — although this latter term is inaccurate as such orders are still for a limited time, though subject to renewal.  While an Emergency or Preliminary Protective Order can be obtained ex parte (that is, with only the person seeking the order appearing before the magistrate or judge), they last for only a brief period before the court is required to conduct a hearing at which the person against whom the order was entered will have an opportunity to oppose the issuing of the Permanent Order.

What is not commonly known is that the parties can agree to a settlement of the issue and have the court enter an order which, while not a “protective order,” functions in much the same way.  Called a “mutually agreed order of no contact,” the order sets out conditions for the parties to, for lack of a better expression, “leave each other the Hell alone.”  The good thing about such settlements is that they do not carry the stigma and legal consequences of a protective order but are still enforceable under the contempt power of the court — albeit as a civil contempt, not a criminal contempt as with a protective order.

Such orders are not appropriate in many protective order cases if there is a real concern for the safety of the party seeking the order.  However, many protective orders are sought when emotions are running high.  By the time of the court hearing, sometimes even just a few days later, passions have subsided and the parties have reconciled.  In other cases, however, the issue is not so readily resolved, and yet a protective order is not really the best solution, as it puts all the onus on one party.  You would be hard pressed to find a judge or experienced domestic attorney who could not recount at least several tales of the party who obtained the protective order calling the police to complain that the defendant was in violation, only for the explanation from the defendant to be “but she invited me over.”

As you have probably already discerned, a MAOONC was the solution that I thought was best for all parties.  I represented the plaintiff and, as she was amenable, I proposed it to the other party through her counsel.  While I think it took some effort on his part to explain to the defendant the benefit of agreeing to the MAOONC, eventually everyone agreed, the order was signed, and the wise judge (after first double-checking the statute to confirm he had the authority) entered the order.

There are no losses in the legal world — just victories and moral victories.  I would maintain that an agreed settlement should count as a “victory,” but I can equally understand how it could be considered a “draw.”  In those sports that still have the possibility of a tie, I suppose this means my record is 0-0-2.  Perhaps the better sports analogy is to the scoring convention in baseball that a walk does not count as an at bat, but still counts toward the player’s on-base percentage.  So, while I am still batting .000 with no at bats, my OBP is 1.000.

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