Attorneys Of Beckman Schmalzle Georgelas & Ross

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What about Fido? Protective Orders and Pet Custody in Virginia.

On Behalf of | Dec 10, 2015 | Divorce, Family Law, Protective Orders

As family law lawyers in Leesburg, Virginia, we are often asked questions about pet custody in Virginia.  We are also often in the position of seeking protective orders on behalf of our clients and defending our clients against malicious protective orders.  Some new changes in the law have created an area where protective orders and pet custody in Virginia merge.

As we have stated previously regarding protective orders, they are a vital tool in protecting victims of violence and abuse or potential victims from threatened violence or abuse. Sometimes, however, protective orders are used as a negotiating tactic at the beginning stages of a divorce proceeding. Whether it is an emergency protective order, preliminary protective order, or permanent protective order, the issuance of one can dramatically affect one’s life.

A party need only present testimony to a magistrate of an alleged incident in order to obtain an Emergency Protective Order.  This is an ex parte proceeding, which means that the accused does not have the right to appear.  These Emergency Protective Orders usually last up to 72 hours.  They are followed by a Preliminary Protective order, which is also an ex parte Order which lasts for about 2 weeks. At the end of that period, there will be a hearing (with all parties having the right to be present) for a Permanent Protective Order, which lasts for up to two years.  The Petitioner (the person requesting the protective order) may be granted certain relief through any Protective Order pursuant to Va. Code Ann. §16.1-253.1, such as:

  1. Right to exclusive use and possession of the home to the exclusion of the other party;
  2. Right to the exclusive use of a vehicle of his or her choosing (whether jointly owned or in the other parties’ name only); and
  3. Prohibition against the other party from terminating any utility service to the premises granted to the Petitioner.

Now, as of July 1, 2014, a Court may grant petitioners even more including the right to exclusive possession of any “companion animal” that may have resided with the parties. A companion animal is defined under Va. Code Ann. §3.2-6500 as:

“any domestic or feral dog, domestic or feral cat, nonhuman primate, guinea pig, hamster, rabbit not raised for human food or fiber, exotic or native animal, reptile, exotic or native bird, or any feral animal or any animal under the care, custody, or ownership of a person or any animal that is bought, sold, traded, or bartered by any person. Agricultural animals, game species, or any animals regulated under federal law as research animals shall not be considered companion animals for the purposes of this chapter.”

A petitioner need only prove ownership of the animal in order to have it included in the protective order. Ownership can be shown by simply testifying that the petitioner is the custodian for the animal and the animal resides at the Petitioner’s residence. For example, if a Husband and Wife get into an argument and the Wife requests and is then granted an emergency protective order against the Husband, not only can she be granted the things listed above but she can also now be granted possession of the family pet. Even though the Husband most likely has an equal claim to the family pet as an owner under the definition provided in Va. Code Ann. §3.2-6500, because the Wife has petitioned the Court for a protective order and not the Husband, the Wife will get sole custody of the pet as long as she can show that she is also the owner.

This new provision applies to emergency protective orders, preliminary protective orders, and permanent protective orders. As a result, it is imperative to seek counsel if you have been served with a protective order against you or you need assistance obtaining a protective order against a family or household member. Not only could your residence be a primary issue but now as the Wicked Witch once said, “your little dog too!”