Restraining Orders

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)