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Legal Information: West Virginia

Restraining Orders

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October 29, 2018

Step 1. Go to the courthouse.

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:

  • a photo
  • addresses of residence and employment
  • phone numbers
  • a description and plate number of the abuser's car and
  • history of drugs or gun ownership.

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.

Step 2. Pick up the forms.

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.

Step 3. Carefully fill out the forms.

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.1

1 Rules of Practice and Procedure for Domestic Violence Civil Proceedings; Rule 8

Step 4. Emergency order

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 does not give you an emergency protective order, you can file an appeal of the denial to the family court judge. You have 5 days to file an appeal.1 Speak to the magistrate clerk for help getting the appeal form and to learn where to file your appeal.
You will have a full hearing in a few days, and an emergency order can help protect in the days before your hearing. To get an emergency order, the abuser does not have to be present. If you get an emergency order, be sure to keep a copy of it with you at all times.

1 W. Va. Code § 48-27-510(a)

Step 5. Notice of hearing

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.

Step 6. Service of process

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.1

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.2 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.

1 W. Va. Code § 48-27-701
2 W. Va. Code § 48-27-311

Step 7. The hearing

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.  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.1

To get a 90-day final order or a 180-day order, you must:

  • Prove that the abuser has committed an act(s) of domestic violence (as defined by the law) against you or your children; and
  • Convince a judge that you need the specific protections you asked for in the petition.2

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
  • That 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.3

See the Preparing Your Case page for ways you can show the judges you were abused.

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 to find out if someone can go with you to the hearing.  (Go to WV Advocates and Shelters to find an organization in your area).

1 Rules of Practice and Procedure for Domestic Violence Civil Proceedings; Rule 14.
2 W. Va. Code § 48-27-501
3 W. Va. Code § 48-5-505(a),(b)