Know the Laws: West Virginia
UPDATED November 27, 2012
A protective order is a civil order that provides protection from harm by a family or household member who has committed domestic violence against you.
A domestic violence protective order is a court order that is set up to stop violence and harassment and to protect you and your children from an abuser.
In West Virginia, there are two types of protective orders: emergency protective orders and final protective orders.
An emergency protective order is a court order designed to provide you and your family members with immediate protection from an abuser. To get an emergency order, the judge must believe that you or your children are in immediate danger of abuse. To help prove your case, you can show the judge copies of any medical records you may have related to injuries that the abuser caused you. To get an order without the abuser present (known as ex parte), you may have to explain to the judge why the abuser should not be notified in advance that you are requesting an order (i.e., that your life would be in danger, etc).* An emergency protective order will protect you from the time you file for the final protective order until your full court hearing. This will usually be within 10 days but could be postponed – in that case, your emergency order can be extended until the following court date.** Note: if you are filing against a spouse and there has been a temporary order for divorce, annulment or separate maintenance issued by the family court, the type of order you could get from the magistrate’s court is called a temporary emergency protective order.*** For more information, see What type of emergency protective order can I get if I am in the middle of a divorce?
A final protective order offers the same type of protection as an emergency protective order, but it lasts longer. Since it lasts longer, you will have to have a full court hearing to get a final protective order. In this hearing, the abuser will have a chance to respond to your petition. A final protective order can last for 90 days, 180 days, or 1 year. (Note: The availability of a 1-year order comes from a new law passed in June 2010). To qualify for a 1-year final order, you have to prove at a hearing that one of the following "aggravating factors" exists:
You can ask the court to extend the order but you must do so before it expires. For more information, see How do I change or extend my protective order?
* W. Va. Code § 48-27-403(a)
** W. Va. Code § 48-27-403(b),(g)
*** W. Va. Code § 48-27-402
**** W. Va. Code § 48-5-505(a),(b)
If you are filing for a protective order against a spouse and there is currently a temporary order for divorce, annulment or separate maintenance from family court, then the magistrate can only consider incidents that happened after the temporary divorce order was issued. T he order you would get from the magistrate is called a temporary emergency protective order.* The magistrate will then transfer the case to the family court where the judge will hold a hearing within 10 days. The family court judge will decide whether the temporary emergency protective order entered by the magistrate should be extended by the family court or should be vacated (dismissed).**
The only protections that could be in a temporary emergency protective order are ordering the respondent to:
(1) stop abusing you and/or your minor children;
(2) not enter the school, business or place of employment of you or your family/household members for the purpose of violating the protective order; and
(3) stop contacting, telephoning, communicating with, harassing or verbally abusing you.***A temporary emergency protective order can only modify a custody or visitation order if there is clear evidence that the respondent abused a child.****
This section defines domestic violence for the purposes of getting a domesitc violence protective order.
Domestic violence (or abuse) is when one family or household member commits any of the following acts to another family or household member:
Note: If you reported or witnessed an act of domestic violence and, as a result, have been abused, threatened, harassed or you have been the target of other actions intended to intimidate you, you can apply for a protective order.** See Who can get a protective order? for more information.
* W. Va. Code § 48-27-202
** W. Va. Code § 48-27-305(3)
A "family or household member" is defined as:
An emergency protective order will include the following terms:
You can file a petition in the county where you live (either permanently or temporarily), in the county where the abuser lives, or in the county where the abuse took place. If you are getting a divorce, you can also file the petition in the county where the divorce proceedings are taking place.*
* W. Va. Code § 48-27-302