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.
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 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. 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
You can apply for a protective order if:
Yes. Under West Virginia law, you can get a protective order against your same-sex partner if s/he falls into one of the categories listed in What is the definition of a family or household member? and has committed against you. See What is the legal definition of domestic violence? for more information.
There may also be other legal options for you as well. To find help in your state, please click on the WV Where to Find Help tab at the top of this page.
If you were denied an emergency protection order, you can file a petition for appeal in the family court within five days of the denial of the order.*
If you were denied a final protection order, you have the right to appeal your case to the circuit court. The appeal must be filed at the circuit court clerk’s office within 10 days from the judge’s denial of the order. Appeal forms are available at the circuit court clerk’s office but it may be best to have an attorney help you with the appeal.** To find an attorney, go to our WV Finding a Lawyer page.
Remember, you may also be able to reapply for an order of protection if a new incident of domestic abuse occurs after you are denied the order.
If you don’t qualify for a protective order based on your relationship to the abuser or the type of act s/he committed against you, remember that the abuser may still have committed a crime. Go to our WV Legal Statutes page to read the definition of some common crimes in WV. If you believe a crime has been committed against you, you could consider reporting it to law enforcement.
If charges are pressed against the perpetrator, a judge may be able to order him/her to stay away from you.
Whether or not you get a protective order, there are still some things you can do to stay safe. It might be a good idea to contact one of the domestic violence resource centers in your area to get help, support, and advice on how to stay safe. They can help you come up with a safety plan and help connect you with the resources you need. You will find a list of WV resources on our WV State and Local Programs page. You will also find information on safety planning on our Staying Safe page.
If you are being stalked or harassed, you can also visit the Stalking Resource Center website for more information on stalking and harassment laws, as well safety planning information.
* W. Va. Code § 48-27-510 (a)
** W. Va. Code, § 48-27-510(b); See WV Courts’ Domestic Violence Protective Orders brochure
The forms for a protective order are free and there is no fee to have the order served on the abuser.*
If you are granted an emergency protective order, you will never have to pay any fees or costs. However, if you are denied the emergency order, you may be charged a fee of $25 unless you were approved for the fee waiver (due to your low income) or unless you file an appeal.**
* W. Va. Code § 48-27-308
** See WV Courts’ Domestic Violence Protective Orders brochure
No, you do not need an attorney to file for a protective order --but it may be a good idea to have one. This is especially important if the abuser has a lawyer. Even if the abuser does not have a lawyer, if you can, try to get in touch with a lawyer to protect your legal rights.
If you cannot afford a lawyer but want one to help you with your case, you can find information on legal assistance and domestic violence agencies on the WV Finding a Lawyer page.
Also, the domestic violence organizations in your area and/or court staff may be able to answer some of your questions or help you fill out the necessary court forms. Often, these domestic violence organizations have court advocates who can go with you to the hearing for support. You can find local organizations on our WV State and Local Programs page.
Go to the magistrate in the county where you live, where the abuser lives, or where the abuse happened - whichever is most safe and easy for you. See the WV Courthouse Locations page to find a courthouse near you.It is sometimes helpful to bring the following information about the abuser to court with you, if you have it and can get to it safely:
Remember to bring some form of identification (a driver's license or other identification that includes your picture) to show to the clerk who will notarize your petition.
At the courthouse, find the clerk or magistrate and say that you want to file for a domestic violence protective order. You can also ask the clerk or magistrate if the local domestic violence program has an advocate who comes to the courthouse and how to get in touch with that person.
The clerk will give you the forms you need to file a “petition” for a protective order. On the petition you will be the “petitioner” and the abuser will be the “respondent.”
The forms are provided to you at no charge. There are no filing fees or fees you need to pay to get your abuser served with the paperwork.
Write briefly and clearly about the facts that show that you deserve to be granted a protective order. Describe most recent threats or violence, using descriptive language (slapping, hitting, grabbing, threatening, etc.) that fits your situation. Include details and dates, if possible. If you have a question, ask the clerk. The clerk may answer questions, but may not tell you what to write.
Do not sign the application until you have shown it to a clerk. The form must be signed in front of a notary public or a judge. There are notaries and judges at the courthouse.
Once you have finished, give the petition to the clerk. The clerk will bring them to a magistrate for you.*
* Rules of Practice and Procedure for Domestic Violence Civil Proceedings; Rule 8
If the magistrate finds that you need immediate protection, the magistrate will grant you an emergency order. An emergency order is also called an ex parte order. It will take effect right away and last for approximately ten (10) days, until the court hearing for the final order.
If the magistrate grants your emergency order, you will be given a court date for a "hearing" of your petition, usually within 10 days. This hearing will be in front of a judge at the time shown on a piece of paper called "the Notice of Hearing." The abuser will also be asked to come to court at which time s/he will have a chance to fight against you getting a final order. The court and law enforcement are normally responsible for notifying the abuser of the hearing.
You should ask the magistrate or the magistrate clerk what to do to serve the abuser with the the temporary order, the petition, and the paperwork that tells him/her about the hearing. It is the duty of law enforcement to serve the abuser, and the magistrate or clerk can tell you how to contact local law enforcement to do the service. The law says that all law-enforcement officers can serve the papers any day of the week, including Sundays and legal holidays. The officer has to attempt service within 72 hours of when they receive the order. They must try to find the respondent at every address that you provide to them. If service is not made, the law enforcement officer has to continue to attempt to serve the respondent until s/he is properly served.*
West Virginia law allows for the protective order to be "served" on the abuser through a legal advertisement published notice, with the publication area being the most current known county where the abuser lives if personal service by law enforcement has been unsuccessful. At the same time, the protective order and the order of publication will be mailed to the abuser's most current known residential address.** Please consult with court staff for information and instructions on this type of service if it applies to your situation.
If you also have an emergency order requiring the abuser to leave your home, the sheriff will also make sure that happens.
If the abuser has not been served in time for your hearing, the hearing may be “continued,” or rescheduled, until a later date.
* W. Va. Code § 48-27-701
** W. Va. Code § 48-27-311
To get a 90-day final order or a 180-day order, you must:
To qualify for a 1-year final order, you have to prove at a hearing that one of the following "aggravating factors" exists:
See the Preparing Your Case section under the Preparing for Court tab on the top of this page for ways you can show the judges you were abused.
* W. Va. Code § 48-27-501
** W. Va. Code § 48-5-505(a),(b)
Hearings for final orders are held in the family court. You must go to the hearing if you want a final order. If you do not go to the hearing, your emergency order will expire and you will have to start the process over. If you do not show up at the hearing, it may be held against you if you file for another order in the future. It is generally best to have a lawyer represent you at the hearing if you can, especially if you think the abuser will have one. Go to our WV Finding a Lawyer page for legal referrals.
If the abuser does not show up for the hearing, the judge may still grant you a protective order, or the judge may order a new hearing date if the abuser has not been served. If the judge orders a new hearing date, make sure to ask the judge to extend your emergency order until then. *
It is extremely important that you attend the hearing. If you absolutely cannot attend the hearing, call the clerk and ask how you can get a “continuance” for a later court date. If you think you might not be safe, or might not be able to tell the judge your story in front of the abuser, call one of the domestic violence organizations in your area so that someone can go with you to the hearing. (Go to WV State and Local Programs to find an organization in your area).
* Rules of Practice and Procedure for Domestic Violence Civil Proceedings; Rule 14.
Ongoing safety planning is important after receiving the order. People can do a number of things to increase their safety during violent incidents, when preparing to leave an abusive relationship, and when they are at home, work, and school. Many batterers obey protective orders, but some do not. It is important to build on the things you have already been doing to keep yourself safe. We have safety planning suggestions on our Staying Safe page. Advocates at local domestic violence organizations can assist you in designing a safety plan and can provide other forms of support. To find an advocate in your area please visit the WV State and Local Programs page.
If you believe that the abuser has violated the protective order, you can call 911. If the police find that the abuser has violated a valid court order, then the police must arrest the abuser immediately. Violation of the order is a criminal offense, and penalties can include jail terms.
When the police arrive, it is a good idea to write down the name of the responding officer(s) and their badge number in case you want to follow up on your case. Make sure a police report is filled out, even if no arrest is made. If you have legal documentation of all violations of the order it will help you have the order extended or modified.
If the abuser violates the order and you do not have time to call the police or the police do not get there in time to see the violation, you may file a criminal complaint. If a judge finds probable cause that the abuser has violated the order, then the judge can issue a warrant for his arrest.
If the abuser violates the protective order, you may also file a petition for civil contempt. To file for civil contempt, go to the courthouse where you first got the order, or to the courthouse where the violation occurred. Tell the clerk that you need to file a "Petition to Show Cause" for violation of a protective order. You will get a court date, usually within 5 days, and will then have to prove to a judge that the abuser violated the order.*
* W. Va. Code § 48-27-901
Either you or the abuser may petition the court to change a term of your protective order.* To ask that it be changed, you will have to go to the clerk of court where you first got the order to file a petition to modify your order. The petition is shown on the WV Courts website here.
If you have a 90-day order or a 180-day order and want to extend it for another 90 days, you have to submit a request in writing to the court where you got the order and it can be extended without another court hearing.** You would have to file a Request to Extend 90-Day or 180-Day Protective Order before your current order expires. Then, the clerk will send a notice of the extension to the respondent (abuser) by mail.*** Note: The WV Courts website has a notice with information about extending a protective order when the parties to the protective order are also parties to an action in family court - you can read that information here and you may be able to ask the clerk for clarification.
If you have a 1-year order and want to extend it, the court can extend it for whatever period of time the court considers necessary to protect the physical safety of you or anyone protected by the order. You would have to prove that the abuser materially (significantly) violated the existing protective order or s/he significantly violated a protective order issued by the judge in your divorce case. The order can only be extended after a court hearing where the abuser has the right to be present.****
* W. Va. Code § 48-27-505(f)
** W. Va. Code § 48-27-505(a)
*** See Request to Extend 90-Day or 180-Day Protective Order; W. Va. Code § 48-27-505(d)
**** W. Va. Code § 48-27-505(c)
If you move within West Virginia, your order will still be valid and good. It is a good ideaYou may want to to call the clerk to change your address within the court files but make sure that it will be kept confidential if you don’t want the abuser to see your new address.
Please see our Moving to Another State with a Protective Order page for more information on moving with your West Virginia protective order.
Additionally, the federal law provides what is called "Full Faith and Credit," which means that once you have a criminal or civil protection order, it will be effective, or follow you, wherever you go, including U.S. Territories and tribal lands. Different states have different rules for enforcing out-of-state protection orders. You can find out about your state’s policies by contacting a domestic violence program, the clerk of courts, or the prosecutor in your area.
If you are moving out of state, you should call the battered women’s program in the state where you are going to find out how that state treats out-of-state orders.
If you are moving to a new state, you may also call the National Center on Full Faith and Credit (1-800-903-0111) for information on enforcing your order there.