PO can be extended without new evidence

A protective order may be extended under Code § 19.2-152.10(B) without the petitioner presenting new or additional evidence.

Background

In January 2020, petitioner obtained a protective order against respondent. Before the order expired, petitioner sought to extend the order. She re-submitted the documentary evidence that she provided to obtain the original order.

At the extension hearing, “counsel for the Respondent contended that he was unable to locate any case law examining whether the Code section required new or additional evidence be presented on motion for the extension of the protective order.

“After its own search, the Court has similarly been unable to locate any case law on point.”

Discussion

After examining the legislative history of Code § 19.2-152.10(B), the court concludes that new or additional evidence is not required to extend a protective order.

“First, the statute itself does not contain any language on its face that would require the introduction of any additional evidence to support an extension.

“If the General Assembly had intended for such a requirement, the Court would expect to find such a requirement either in the explicit text of the statute or in at least one of the various iterations of the amendment. …

“[T]he General Assembly did not include any language in the amended statute nor discuss any

such requirement as evidenced in the legislative history.

“Second, the Court takes note of the amendment made prior to the eventual passage of Subsection (B) in which the General Assembly altered the basis for the protective order extension.

“In the initial draft, the House proposed the following language: ‘The order may be extended for a period not longer than one year if the respondent continues to pose a threat to the health and safety of the petitioner and family or household members of the petitioner at the time the request for an extension is made.’ (Emphasis added.)

“The conditional language in this clause of the proposed amendment suggests that an extension may be granted on the condition that ‘the respondent continues to pose a threat to the health and safety of the petitioner and family.’

“The focus of this provision is on the conduct of the respondent and whether a danger has continued from the issuance of the prior protective order to the present.

“However, the General Assembly amended this language from a focus on the acts of the respondent to the health and safety of the petitioner: ‘The court may extend the initial protective order for a period not longer than one year to protect the health and safety of the petitioner or persons who are family or household members of the petitioner at the time the request for an extension is made.’ (Emphasis added.)

“By removing the specter of ‘threat’ from the calculation and instituting a standard of essentially maintaining the ‘health and safety’ currently in place, the General Assembly granted the Court broad discretion to grant an extension of the initial protective order.

“The Court may extend such a protective order ‘to protect the health and safety of the petitioner or persons who are family’ instead of focusing its inquiry on whether respondent ‘continues to pose a threat,’ as initially introduced by the amendment.

“Third, from a logical perspective, the protective order acts as a shield to protect the petitioner and their family members from an individual who had – at least at the initial issuance – demonstrated an ability or desire to harm, harass, or otherwise jeopardize the safety of the petitioner and/or their family.

“If the protective order accomplishes its goal, there should be no new or additional evidence for the petitioner to present at a hearing on a motion to extend under Virginia Code § 19.2-152.10(B).

“Thus, if the Court were to find that petitioner was required to provide new or additional evidence in the wake of an effective protective order, the Court would essential[y] require either (a) evidence of a violation of the prior protective order by the respondent or (b) the prior protective order to lapse and subject the petitioner to possible jeopardy of her ‘health and safety’ so that she could obtain new or additional evidence to support a new protective order.”

Ruling

“Based on the legislative history and apparent intent of the General Assembly in unanimously passing Virginia Code § 19.2-152.10 – particularly subsection (B) – the Court finds that requiring Petitioner to present new or additional evidence contravenes both the black letter and the spirit of the statute. …

“[T]he Court hereby affirms the extension of the protective order granted by the General District Court on January 20, 2022. Petitioner’s Protective Order shall remain in place until January 20, 2024.”

Zimmerman v. Happe, Case No. CJ22-02, March 21, 2022, Floyd County Circuit Court (Fleenor). VLW 022-8-020, 7 pp.