Q: My husband lied to the cops to get a epo granting possession of the home. If I get an order on him, who gets to stay?
I have real evidence that I can take to the magistrate and get him arrested for assault. If I was granted a EPO also and possession of the home, which h one of us gets to stay there? Is it the one who was granted it first?
A:
A protective order may be issued in three successive steps, each with greater due process protections for the accused. To protect against an immediate harm, a emergency protective order can be issued ex parte by the magistrate or general district court judge on a sworn statement or affidavit, without a hearing. It expires at midnight of the third day after issuance.
A preliminary protective order may be issued with an adversary hearing allowed to the defendant/accused on short notice. The hearing is usually rather short, and may attract the attention of the Commonwealth's Attorney or prosecutor if there is the possibility of criminal charges, usually one of family abuse. If the prosecutor is interested in a crime, the prosecution will proceed first, on the higher evidentiary burden of showing evidence beyond a reasonable doubt. Even if not convicted, a protective order may proceed on the lower clear and convincing evidentiary burden.
If requested by the accused, a dispositional or final evidentiary hearing will be held within 60 days. That provides the accused with the opportunity to testify fully and present his or her evidence. The final protective order resulting from this hearing may last for 2 years and can be renewed.
Lying under oath during a legal proceeding is the crime of perjury, which may be prosecuted by the Commonwealth.
Anyone facing a protective order, or interest in the issuance of a protective order, should consult with an experienced Virginia family law lawyer.
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