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EspañolWhat are my options if I was denied a protective order?
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.1 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 ten days from the judge’s denial of the order. A Circuit Court hearing on the appeal will be held within ten days of the date the appeal is filed. If either side is not happy with the Circuit Court decision, that party can appeal to the Supreme Court of Appeals of West Virginia. The Supreme Court’s decision is final. Appeal forms are available at the circuit court clerk’s office.2 Since appeals are complicated, 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. You can read more about appeals on our Preparing for Court - By Yourself page in the File an Appeal section.
In addition, 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. You may also consider reporting the abuser to the police if you believe that a crime was committed.
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 on our WV Advocates and Shelters page for help. You will also find information on safety planning on our Safety Tips page.
1 W. Va. Code § 48-27-510(a)
2 W. Va. Code § 48-27-510(b); See West Virginia Courts’ Domestic Violence Protective Orders brochure
Can the abuser have a gun?
Once you get a protection order, there may be laws that prohibit the respondent from having a gun in his/her possession. There are a few places where you can find this information:
- first, read the questions on this page to see if judges in West Virginia have to power to remove guns as part of a temporary or final order;
- second, go to our State Gun Laws section to read about your state’s specific gun-related laws; and
- third you can read our Federal Gun Laws section to understand the federal laws that apply to all states.
You can read more about keeping an abuser from accessing guns on the National Domestic Violence and Firearms Resource Center’s website.
What should I do when I leave the courthouse?
Here are some things you may want to consider doing. However, you will have to evaluate each one to see if it works for your situation.
- Review the order before you leave the courthouse. If something is wrong or missing, ask the clerk to correct the order before you leave.
- Be careful as you’re leaving the courthouse. If you are very fearful, try to leave with someone or speak with the security guard about safety as you leave. You might also wait a while for the abuser to leave so you don’t run into him/her on your way out. For more safety tips, see our Safety in Court page.
- Make several copies of the protective order as soon as possible.
- Keep a copy of the order with you at all times.
- Leave copies of the order at your work place, at your home, at the children’s school or daycare, in your car, with a sympathetic neighbor, and so on.
- Give a copy to the security guard or person at the front desk where you live and/or work along with a photo of the abuser.
- Give a copy of the order to anyone who is named in and protected by the order.
- If the court has not given you an extra copy for your local law enforcement agency, you might want to take one of your extra copies and deliver it to them.
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 Safety Planning 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 Advocates and Shelters page.
What can I do if the abuser violates the order?
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.1
For more information about contempt, including the difference between criminal contempt and civil contempt, go to our general Domestic Violence Restraining Orders page.
1 W. Va. Code § 48-27-901
How do I change or extend my protective order?
Either you or the abuser may petition the court to change a term of your protective order.1 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 West Virginia 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.2 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.3Note: The West Virginia 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 one-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.4
1 W. Va. Code § 48-27-505(f)
2 W. Va. Code § 48-27-505(a)
3 See Request to Extend 90-Day or 180-Day Protective Order; W. Va. Code § 48-27-505(d)
4 W. Va. Code § 48-27-505(c)
What happens if I move?
If you move within West Virginia, your order will still be valid and good. You 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 Protection Orders and Full Faith & Credit (1-800-903-0111, ext. 2) for information on enforcing your order there.
If I get a protection order, will it show up in an internet search?
According to federal law, which applies to all states, territories, and tribal lands, the courts are not supposed to make available publicly on the internet any information that would be likely to reveal your identity or location. This applies to all of these documents:
- the petition you file;
- the protection order, restraining order, or injunction that was issued by the court; or
- the registration of an order in a different state.1
1 18 USC § 2265(d)(3)
