Legal Information: West Virginia

Restraining Orders

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October 29, 2018

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)