What is the legal definition of domestic violence in West Virginia?
This section defines domestic violence for the purposes of getting a domestic violence protective order.
Domestic violence (or abuse) is when a family or household member commits any of the following acts against you:
- tries to physically harm you, with or without a weapon;
- physically harms you, on purpose (intentionally) or recklessly, with or without a weapon;
- makes you afraid that s/he will physically harm you, and your fear is reasonable;
- makes you afraid of physical harm by harassment, stalking, psychological abuse, or threatening acts;
- sexually assaults you or sexually abuses you;
- kidnaps you; or
- holds or detains you against your will.1
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.2 See Who can get a protective order? for more information.
1 W. Va. Code § 48-27-202
2 W. Va. Code § 48-27-305(3)
What is the definition of a family or household member?
For the purpose of getting a protective order, a family or household member is defined as:
- your spouse or ex-spouse;
- someone with whom who you live(d) “as a spouse;”
- someone who lived in the same household as you;
- a sexual partner or intimate partner;
- someone who you are dating or used to date;
- someone with whom you have a child in common;
- your parent or step-parent;
- your sibling, step-sibling, or half-sibling;
- your father-in-law, mother-in-law, step-father-in-law, or step-mother-in-law;
- your child or stepchild;
- your daughter-in-law, son-in-law, stepdaughter-in-law, or stepson-in-law;
- your grandparent or step-grandparent;
- your aunt, aunt-in-law, or step-aunt;
- uncle, uncle-in-law, or step-uncle;
- your niece or nephew; or
- your first or second cousin.1
Note: If your relationship to the abuser is that you are a family member (as described in #7-16) of the abuser’s spouse, partner, etc. (as described in #1-6), you can still qualify for an order.1 Here are a few examples:
- you can file against your boyfriend’s step-father who attempted to sexually abuse you;
- you can file against against the niece of your former sexual partner who is threatening you;
- you can file against the first cousin of your baby’s mother who is stalking you; or
- you can file against the brother of someone with whom you lived who sexually assaulted you.
If you are being abused by someone with whom who you do not have of the above relationships, you may qualify for a personal safety order.
1 W. Va. Code § 48-27-204
What types of domestic violence protective orders are there? How long do they last?
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).1 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.2 Note: If you already have a temporary order for divorce, annulment, or separate maintenance or custody issued by the family court against the abuser, the type of order you could get from the magistrate’s court is called a temporary emergency protective order.3 For more information, see What type of emergency protective order can I get if I am in the middle of a divorce, annulment, or separate maintenance or custody case?
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 one year. To qualify for a one-year final order, you have to prove at a hearing that one of the following “aggravating factors” exists:
- There has been a serious violation of a past protective order;
- Two or more protective orders have been entered against the abuser (by anyone) within the previous five years;
- The abuser has one or more prior convictions for domestic battery or assault or a felony crime of violence while you were a family or household member;
- The abuser was convicted of stalking or harassment against someone who currently has an order of protection against the abuser; or
- Given the overall circumstances of your case, a one-year order is necessary to protect the physical safety of you and/or anyone else listed on the petition.4
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?
1 W. Va. Code § 48-27-403(a)
2 W. Va. Code § 48-27-403(b),(g)
3 W. Va. Code § 48-27-402
4 W. Va. Code § 48-5-505(a),(b)
What type of emergency protective order can I get if I am in the middle of a divorce, annulment, or separate maintenance or custody case?
If you are filing for a protective order against a spouse and there is currently a temporary order for divorce, annulment, or separate maintenance or custody from family court, then the magistrate can only consider incidents that happened after the temporary divorce order was issued. The order you would get from the magistrate is called a temporary emergency protective order.1 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 or not the temporary emergency protective order entered by the magistrate should be extended by the family court or should be vacated (dismissed).2
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.3
A temporary emergency protective order can only modify a custody or visitation order if there is clear evidence that the respondent abused a child.4
1 W. Va. Code § 48-27-402(a),(b)
2 W. Va. Code § 48-27-402(e)(1)
3 W. Va. Code § 48-27-402(c)
4 W. Va. Code § 48-27-402(d)
What protections can I get in a protective order?
An emergency protective order will include the following terms:
- order the abuser to stop abusing, harassing, stalking, threatening or intimidating you and/or your children;
- order the abuser not to do anything that would place you or your children in reasonable fear of bodily injury;
- order the abuser to hand in any firearms or ammunition s/he has, even if s/he is licensed to have the firearm or ammunition; and
- inform the abuser that the protective order can be enforced in every county in the state.1
A final protective order will include the all of the restrictions listed above and it can include any or all of the following:
- grant you possession of the house or apartment you where you lived with the abuser when the abuse occurred;
- order the abuser to stay away from your residence and the area immediately surrounding it;
- award temporary custody or temporary visitation for your minor children, including supervised visitation;
- order temporary spousal and/or child support for you and your children;
- order the abuser not to enter the school, business or place of employment of you or your household/ family members for the purpose of violating the protective order;
- order the abuser to participate in a batterer’s treatment program;
- order the abuser not to contact, telephone, communicate, harass or verbally abuse you in any way;
- provide for either you or the abuser to go and get your things, including granting temporary possession of motor vehicles owned by either or both of you, and providing for your safety while this occurs (e.g., ordering a law-enforcement officer to go with one or both of you);
- order you and the abuser not to sell, give away, or destroy each other’s things (including joint property);
- give you possession and control of family pets and ordering the abuser not to harm, kill, or see the animal;
- order the abuser to pay you or any other person back for medical expenses, transportation, shelter, and any other expenses you have paid as a result of domestic violence; and
- include anything else in the order that the judge thinks is necessary to keep you and whoever else is on the protection order safe.2
The judge will decide which of these will be included in your protective order based on the facts of your case.
1 W. Va. Code § 48-27-502(a),(b)
2 W. Va. Code §§ 48-27-502(a),(b), 48-27-503
In which county can I file for a protective order?
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.1
1 W. Va. Code § 48-27-302
If the abuser lives in a different state, can I still get an order against him/her?
When you and the abuser live in different states, the judge may not have “personal jurisdiction” (power) over an out-of-state abuser. This means that the court may not be able to grant an order against him/her.
There are a few ways that a court can have personal jurisdiction over an out-of-state abuser:
- The abuser has a substantial connection to your state. Perhaps the abuser regularly travels to your state to visit you, for business, to see extended family, or the abuser lived in your state and recently fled.
- One of the acts of abuse “happened” in your state. Perhaps the abuser sends you threatening texts or harassing phone calls from another state but you read the messages or answer the calls while you are in your state. The judge could decide that the abuse “happened” to you while you were in your state. It may also be possible that the abuser was in your state when s/he abused you s/he but has since left the state.
- If you file your petition and the abuser gets served with the court petition while s/he is in your state, this is another way for the court to get jurisdiction.
However, even if none of the above apply to your situation, it doesn’t necessarily mean that you can’t get an order. If you file, you may be granted an order on consent or the judge may find other circumstances that allow the order to be granted.
You can read more about personal jurisdiction in our Court System Basics - Personal Jurisdiction section.
Note: If the judge in your state refuses to issue an order, you can file for an order in the courthouse in the state where the abuser lives. However, remember that you will likely need to file the petition in person and attend various court dates, which could be difficult if the abuser’s state is far away.