Can a teenager in Virginia get a protective order against a violent boyfriend or stalker without involving their parents?

Plain-English summary

Delegate Herring asked who can seek a protective order in Virginia when the victim is a minor. The AG sorted through four scenarios (a 16-year-old mother punched by the baby's father; a 16-year-old "married" to her abuser; a 17-year-old stalked on campus; a 17-year-old sexually assaulted at school) and pulled out the general rules.

The substantive eligibility: All the victims in the scenarios are eligible for protective orders. Sections 16.1-253.1, 16.1-253.4, and 16.1-279.1 authorize preliminary, emergency, and permanent protective orders in family abuse cases. "Family or household member" includes individuals who have a child in common (covering the teen mother and the baby's father) and individuals who cohabit (covering the underage "wife," whose marriage was void but who lived with her abuser). Sections 19.2-152.8, 19.2-152.9, and 19.2-152.10 cover stalking, sexual battery, and criminal acts causing serious bodily injury, with a prerequisite arrest warrant.

The procedural problem: Eligibility is one thing; capacity to file is another. Virginia treats minors as legally under a disability. At common law, minors could neither sue nor be sued in their own name. Section 8.01-8 codifies the modern rule: a minor may sue, but only through a "next friend," usually a parent. Emancipated minors, by contrast, can sue in their own right.

Emancipation under Virginia law requires more than maturity. A minor of 16 or older becomes emancipated only by: a valid marriage, active military duty, or a court order under Article 15 of Title 16.1 after demonstrating willing separation from parents with parental consent or acquiescence, self-support, and competent management of financial affairs. Mere maturity is not enough. The teen mother is not emancipated. The "wife" in a void marriage is not emancipated (the marriage was void under Virginia law). The out-of-state college student remains a dependent, so not emancipated. The 17-year-old high school sexual assault victim is not emancipated.

So the four "mature minors" in the scenarios cannot file petitions for non-emergency protective orders directly. Each must file through a next friend. The Court Services Unit of the Department of Juvenile Justice can help facilitate this.

Emergency protective orders are different. Section 16.1-253.4 authorizes a magistrate to issue an emergency family-abuse protective order on application of a person (which the opinion notes includes a juvenile), and § 19.2-152.8 has parallel provisions for stalking, sexual battery, and serious-injury crimes. Both § 16.1-253.4(D) and § 19.2-152.8(D) explicitly authorize law enforcement officers to request emergency protective orders. So even when a non-emancipated minor cannot file a petition in court, the minor can still obtain an emergency protective order from a magistrate, and a law enforcement officer can request one on the minor's behalf.

The takeaway: emancipation status matters. Emancipation is rarely casual; it requires a specific procedural step or a qualifying circumstance. Many "mature" minors do not actually have legal capacity to file. Emergency protective orders provide a bridge for immediate safety while a next friend can file the longer-term petition.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The protective order statutes have been amended multiple times since 2011, with adjustments to scope, duration, and procedure. Anyone helping a minor seek a protective order today should consult current statutes and victim-services guidance.

Common questions

Does "mature minor" have any legal weight here?
Not for filing capacity. Some states recognize a "mature minor" doctrine for medical decisions, but Virginia's protective-order statutes (and the broader civil-procedure rules) treat minors uniformly as under a disability unless emancipated. A 17-year-old with adult judgment still files through a next friend for non-emergency protective orders.

What's a "next friend"?
A person who files suit on behalf of a minor or other legally incompetent person. Often a parent, but it can be another adult, including in some cases a guardian ad litem appointed by the court. The minor remains the real party in interest.

Can the parents block the petition by refusing to act as next friends?
Effectively, yes, for non-emergency protective orders, unless another adult is willing to serve. That's why the Court Services Unit (Department of Juvenile Justice) sometimes facilitates these petitions when parents are uncooperative. For emergencies, magistrates can issue protective orders directly on the minor's application, and law enforcement can act independently.

Why isn't the teen mother's parents' permission a barrier to her protective order?
For the emergency protective order, it isn't. A magistrate can issue one on her own application or on a law enforcement officer's request. For the longer-term preliminary or permanent protective order, she will need a next friend (which could be a parent, another adult relative, or someone through the Court Services Unit).

Is the void marriage of any use to the teen "wife"?
Not for emancipation. The marriage was void because the parents didn't consent under Virginia law. The AG noted that emancipation by marriage requires a valid marriage, so a void marriage does not emancipate the minor. The cohabitation aspect, however, does give her substantive eligibility for a family-abuse protective order, since "family or household member" includes someone who cohabits.

Background and statutory framework

The substantive protective order regime:

• §§ 16.1-253.1, 16.1-253.4, 16.1-279.1. Preliminary, emergency, and permanent family-abuse protective orders.
• The opinion defines "family abuse" and "family or household member" but cites these definitions without section numbers in the reproduced body.
• §§ 19.2-152.8, 19.2-152.9, 19.2-152.10. Emergency, preliminary, and final protective orders for stalking, sexual battery, and serious-injury crimes. Arrest warrant required.

Minor capacity:

• § 8.01-8. Minor may sue by a next friend.
• The opinion relies on the common law rule (minors under a disability cannot sue in their own name) but cites it without a section number.
• Article 15 of Title 16.1. Emancipation procedures.

Emergency protective order shortcuts:

• § 16.1-253.4 (and subsection (D)). Magistrate can issue an emergency family-abuse protective order; law enforcement officer can request one.
• § 19.2-152.8(D). Same for stalking, sexual battery, serious-injury cases.

The doctrinal point: emancipation is the gate that converts a minor's eligibility into independent capacity to file. Otherwise, a next friend is required for non-emergency civil filings, but emergency protective orders provide a magistrate-based and law-enforcement-based path that doesn't require a next friend.

Citations

• Va. Code § 2.2-505
• Va. Code Ann. § 8.01-8
• Va. Code Ann. § 16.1-253.1
• Va. Code Ann. § 16.1-253.4
• Va. Code Ann. § 16.1-279.1
• Va. Code Ann. § 19.2-152.8 (Supp. 2010)
• Va. Code Ann. § 19.2-152.9
• Va. Code Ann. § 19.2-152.10
• Article 15 of Title 16.1 (emancipation; referenced in the opinion without specific section numbers)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/10-116-Herring.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

January 21, 2011

The Honorable Charniele L. Herring
Member, House of Delegates
Post Office Box 11779
Alexandria, Virginia 22312

Dear Delegate Herring:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask, based upon four hypothetical factual scenarios, (1) whether a mature or emancipated minor may seek a protective order pursuant to §§ 16.1-253.1, 16.1-253.4, 16.1-279.1, 19.2-152.8, 19.2-152.9, or 19.2-152.10; and (2) whether law enforcement officers may seek emergency protective orders pursuant to §§ 16.1-253.4 and 19.2-152.8 on behalf mature or emancipated minors who are victims of domestic violence (family abuse) or stalking, sexual assault, or other acts of violence.

Response

It is my opinion that an emancipated minor may file petitions for protective orders pursuant to the applicable statutes, and a minor may seek an emergency protective order in certain situations, but that a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. It further is my opinion that law enforcement officers may file petitions for emergency protective orders on behalf of minors who are victims of family abuse or stalking, sexual assault or other acts of criminal violence.

Background

For purposes of your request, you define "mature minor" as "a minor who is mature enough and well informed enough to have his or her choices respected independent of third parties." You further define "emancipated minor" as a minor emancipated by: (i) entry into a valid marriage; (ii) active duty with any of the Armed Forces of the United States; (iii) willingly living separate and apart from his or her parents or guardian, with the consent or acquiescence of the parents or guardian; or (iv) entry of an order of emancipation pursuant to Article 15 of Title 16.1 of the Code of Virginia.

[Scenarios describing a 16-year-old mother in family abuse, a 16-year-old in a void marriage, a 17-year-old college student being stalked, and a 17-year-old high school sexual assault victim.]

Applicable Law and Discussion

Sections 16.1-253.1, 16.1-253.4 and 16.1-279.1 authorize preliminary, emergency and permanent protective orders, respectively, in cases of family abuse. "Family abuse" is defined as any act involving violence, force, or threat ... which is committed by a person against such person's family or household member. Because the definition of "family and household member" includes "any individual who has a child in common with the person" and "any individual who cohabits or who, within the previous 12 months, cohabited with the person," the young women in the first two scenarios qualify as victims of family abuse.

Sections 19.2-152.8, 19.2-152.9 and 19.2-152.10 authorize emergency, preliminary and final protective orders, respectively, in cases of stalking, sexual battery, and criminal offenses resulting in serious bodily injury. Unlike protective orders issued for family abuse, to obtain a protective order in these contexts, a warrant first must be issued for the arrest of the alleged offender.

Whether an individual is entitled to obtain a protective order, however, is a question distinct from whether the person may request the issuance of such an order. Protective order proceedings are civil in nature. In civil matters, minors who have not been legally emancipated are considered to be under a disability. At common law, minors were unable to sue or to be sued in their own capacities. The common law, unless repealed by statute, remains part of the law of Virginia. Section 8.01-8 permits a minor to sue, provided the child does so by his "next friend," who may be one or both of his parents. A minor also may initiate suit if he or she is emancipated. To be deemed emancipated, a minor of at least 16 years of age must demonstrate to the appropriate court that he either has entered into a valid marriage, is on active duty with the U.S. military, or willingly lives separate and apart from his parents or guardian, with their consent or acquiescence, and is self-supporting and can manage his own financial affairs. There is no provision authorizing "mature minors" to initiate a legal action.

[Application to the scenarios: none of the victims is emancipated. The teen mother lives at home. The college student is dependent for tax purposes. The "marriage" of the 16-year-old is void under Virginia law. The high school student is not emancipated.]

With respect to emergency protective orders, the General Assembly expressly has authorized persons who are victims of sexual battery, aggravated sexual battery, stalking or a criminal offense resulting in a serious injury to come before a magistrate and obtain an emergency protective order, provided the requirements set forth in the statute are met. A person, including a juvenile, who is subjected to family abuse may similarly be able to obtain an emergency protective order from a magistrate.

Other, nonemergency protective orders contemplate the filing of a pleading in court. To file a petition, one must have legal standing to do so. Given the common law rule, absent a statute to the contrary, a minor may not initiate suit on his own behalf without the aid of his next friend. Thus, absent statutory authority allowing a minor to bring a legal action, a mature minor must file the required petition by a next friend. Such petitions can be handled through the Court Services Unit, which is a division of the Department of Juvenile Justice.

Finally, §§ 16.1-253.4(D) and 19.2-152.8(D) explicitly provide that a "law-enforcement officer may request an emergency protective order pursuant to th[e] section." I therefore conclude that a law-enforcement officer may file a petition for an emergency protective order on behalf of the minor in each of your scenarios.

Conclusion

Accordingly, it is my opinion that an emancipated minor may file petitions for protective orders pursuant to the applicable statutes, and a minor may seek an emergency protective order in certain situations, but that a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. It further is my opinion that law enforcement officers may file petitions for emergency protective orders on behalf of minors who are victims of family abuse or stalking, sexual assault or other acts of criminal violence.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General