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Legal Information: West Virginia

Statutes: West Virginia

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Statutes: West Virginia

Updated: 
July 23, 2024

The statutes below are current with legislation of the 2024 Regular Session and First Extraordinary Session. Please check to make sure there have been no changes since this time. You will find these and additional statutes on the West Virginia Legislature website.

Chapter 44A. West Virginia Guardianship and Conservatorship Act

Updated: 
July 23, 2024

Article 1. Definitions and General Provisions

Updated: 
July 23, 2024

44A-1-4. Definitions

Updated: 
July 23, 2024

As used in this chapter, unless a different meaning is clearly required by the context:
 

(1) “Conservator” means a person appointed by the court who is responsible for managing the estate and financial affairs of a protected person, and, where the context plainly indicates, the term “conservator” means or includes a “limited conservator” or a “temporary conservator.”
 

(2) “De facto guardian” means a person who is not the medical power of attorney representative or appointed surrogate and has assumed substantial responsibility for any of the personal affairs of another person later found to be a protected person.
 

(3) “De facto conservator” means a person who is not the power of attorney representative or appointed surrogate and has assumed substantial responsibility for managing any portion of the estate and financial affairs of another person later found to be a protected person.
 

(4) “Estate” means real and personal property or any interest in the property and means anything that may be the subject of ownership.
 

(5) “Guardian” means a person appointed by the court who is responsible for the personal affairs of a protected person, and, where the context plainly indicates, the term “guardian” means or includes a “limited guardian” or a “temporary guardian.”
 

(6) “Interested person” means:
 

(A) An individual who is the subject of a guardianship or conservatorship proceeding;
 

(B) A guardian or conservator of a protected person; and
 

(C) Any other person with an actual and substantial interest in the proceeding, either generally or as to a particular matter, as distinguished from a person who has only a nominal, formal, or technical interest in or connection with the proceeding.
 

(7) “Limited conservator” means a person appointed by the court who has only those responsibilities for managing the estate and financial affairs of a protected person, as specified in the order of appointment.
 

(8) “Limited guardian” means one appointed by the court who has only those responsibilities for the personal affairs of a protected person, as specified in the order of appointment.
 

(9) “Living will” means a living will existing and duly executed in accordance with the provisions of article thirty, chapter sixteen of this code.
 

(10) “Medical power of attorney” means a power of attorney existing and duly executed in accordance with the provisions of article thirty, chapter sixteen of this code or existing and executed in accordance with the laws of another state.
 

(11) “Missing person” means an adult individual, eighteen years of age or older, who is absent from his or her usual place of residence in the state and whose whereabouts are unknown for a period of six months or more.
 

(12) “Person” means, generally, a natural person, any corporation, association, partnership or other business entity, any political subdivision or other public agency, public official or any estate, trust or other collection of properties to which the law attributes the capacity of having rights or duties.
 

(13) “Protected person” means an adult individual, eighteen years of age or older, who has been found by a court, because of mental impairment, to be unable to receive and evaluate information effectively or to respond to people, events, and environments to such an extent that the individual lacks the capacity: (A) To meet the essential requirements for his or her health, care, safety, habilitation, or therapeutic needs without the assistance or protection of a guardian; or (B) to manage property or financial affairs or to provide for his or her support or for the support of legal dependents without the assistance or protection of a conservator. A finding that the individual displays poor judgment, alone, is not sufficient evidence that the individual is a protected person within the meaning of this subsection. “Protected person” also means a person whom a court has determined is a missing person.
 

(14) “Surrogate decisionmaker” means an individual identified as such by an attending physician in accordance with the provisions of article thirty, chapter sixteen of this code.

Chapter 48. Domestic Relations

Updated: 
July 23, 2024

Article 1. General Provisions; Definitions

Updated: 
July 23, 2024

Part 2—Definitions

Updated: 
July 23, 2024

§ 48-1-219. Custodial responsibility defined

Updated: 
July 23, 2024

“Custodial responsibility” refers to physical custodianship and supervision of a child. It usually includes, but does not necessarily require, the exercise of residential or overnight responsibility.

§ 48-1-220. Decision-making responsibility defined

Updated: 
July 23, 2024

“Decision-making responsibility” refers to authority for making significant life decisions on behalf of a child, including, but not limited to, the child’s education, spiritual guidance and health care: Provided, That with regard to healthcare, both parents in any shared parenting plan, regardless of the relative ratio of parenting time allocated between the parents, shall have the authority to make emergency or other non-elective healthcare decisions concerning their child necessary for the child’s health or welfare during such parent’s parenting time.

Article 5. Divorce

Updated: 
July 23, 2024

Part 1. General Provisions

Updated: 
July 23, 2024

48-5-105. Residency requirements for maintaining an action for divorce

Updated: 
July 23, 2024

(a) Except as otherwise provided in subsection (b) of this section:

(1) If the marriage was entered into within this state, an action for divorce is maintainable if one of the parties is an actual bona fide resident of this state at the time of commencement of the action, without regard to the length of time residency has continued; or

(2) If the marriage was not entered into within this state, an action for divorce is maintainable if:

(A) One of the parties was an actual bona fide resident of this state at the time the cause of action arose, or has become a resident since that time; and

(B) The residency has continued uninterrupted through the one-year period immediately preceding the filing of the action.

(b) An action for divorce cannot be maintained if the cause for divorce is adultery, whether the cause of action arose in or out of this state, unless one of the parties, at the commencement of the action, is a bona fide resident of this state. In such case, if the respondent is a nonresident of this state and cannot be personally served with process within this state, the action is not maintainable unless the petitioner has been an actual bona fide resident of this state for at least one year next preceding the commencement of the action; or

(c) When a divorce is granted in this state upon constructive service of process and personal jurisdiction is thereafter obtained of the respondent in the case, the court may order all or any portion of the relief that has been demanded in the pleadings.

48-5-106. Venue of actions for divorce

Updated: 
July 23, 2024

(a) If the respondent in an action for divorce is a resident of this state, the petitioner has an option to bring the action in the county in which the parties last cohabited or in the county where the respondent resides.

(b) If the respondent in an action for divorce is not a resident of this state, the petitioner has an option to bring the action in the county in which the parties last cohabited or in the county where the petitioner resides.

Part 2. Grounds for Divorce

Updated: 
July 23, 2024

48-5-201. Grounds for divorce; irreconcilable differences

Updated: 
July 23, 2024

The court may order a divorce if the complaint alleges that irreconcilable differences exist between the parties and an answer is filed admitting that allegation. A complaint alleging irreconcilable differences shall set forth the names of any dependent children of either or both of the parties. A divorce on this ground does not require corroboration of the irreconcilable differences or of the issues of jurisdiction or venue. The court may approve, modify or reject any agreement of the parties and make orders concerning spousal support, custodial responsibility, child support, visitation rights or property interests.

48-5-202. Grounds for divorce; voluntary separation

Updated: 
July 23, 2024

(a) A divorce may be ordered when the parties have lived separate and apart in separate places of abode without any cohabitation and without interruption for one year. The separation may occur as a result of the voluntary act of one of the parties or the mutual consent of both parties.

(b) Allegations of res judicata or recrimination with respect to any other alleged grounds for divorce are not a bar to either party obtaining a divorce on the ground of voluntary separation.

(c) When required by the circumstances of a particular case, the court may receive evidence bearing on alleged marital misconduct and may consider issues of fault for the limited purpose of deciding whether spousal support should be awarded. Establishment of fault does not affect the right of either party to obtain a divorce on the ground of voluntary separation.

48-5-203. Grounds for divorce; cruel or inhuman treatment

Updated: 
July 23, 2024

(a) A divorce may be ordered for cruel or inhuman treatment by either party against the other. Cruel or inhuman treatment includes, but is not limited to, the following:

(1) Reasonable apprehension of bodily harm;

(2) False accusation of adultery or homosexuality; or

(3) Conduct or treatment which destroys or tends to destroy the mental or physical well-being, happiness and welfare of the other and render continued cohabitation unsafe or unendurable.

(b) It is not necessary to allege or prove acts of physical violence in order to establish cruel and inhuman treatment as a ground for divorce.

48-5-204. Grounds for divorce; adultery

Updated: 
July 23, 2024

A divorce may be ordered for adultery. Adultery is the voluntary sexual intercourse of a married man or woman with a person other than the offender’s wife or husband. The burden is on the party seeking the divorce to prove the alleged adultery by clear and convincing evidence.

48-5-205. Grounds for divorce; conviction of crime

Updated: 
July 23, 2024

A divorce may be ordered when either of the parties subsequent to the marriage has, in or out of this state, been convicted for the commission of a crime that is a felony, and the conviction is final.

48-5-206. Grounds for divorce; permanent and incurable insanity

Updated: 
July 23, 2024

(a) A divorce may be ordered for permanent and incurable insanity, only if the person is permanently and incurably insane and has been confined in a mental hospital or other similar institution for a period of not less than three consecutive years next preceding the filing of the complaint and the court has heard competent medical testimony that such insanity is permanently incurable.

(b) A court granting a divorce on this grounds may in its discretion order support and maintenance for the permanently incurably insane party by the other.

(c) In an action for divorce or annulment, where the petitioner is permanently incurably insane, the respondent shall not enter a plea of recrimination based upon the insanity of the petitioner.

48-5-207. Grounds for divorce; habitual drunkenness or drug addiction

Updated: 
July 23, 2024

(a) A divorce may be ordered for habitual drunkenness of either party subsequent to the marriage.

(b) A divorce may be ordered for the addiction of either party, subsequent to the marriage, to the habitual use of any narcotic or dangerous drug defined in this code.

48-5-208. Grounds for divorce; desertion

Updated: 
July 23, 2024

A divorce may be ordered to the party abandoned, when either party willfully abandons or deserts the other for six months.

48-5-209. Grounds for divorce; abuse or neglect of a child

Updated: 
July 23, 2024

(a) A divorce may be ordered for abuse or neglect of a child of the parties or of one of the parties, “abuse” meaning any physical or mental injury inflicted on such child including, but not limited to, sexual molestation; and “neglect” is willful failure to provide, by a party who has legal responsibility for such child, the necessary support, education as required by law, or medical, surgical or other care necessary for the well-being of such child.

(b) A divorce shall not be granted on this ground except upon clear and convincing evidence sufficient to justify permanently depriving the offending party of any allocation of custodial responsibility for the abused or neglected child.

Part 5. Temporary Relief During Pendency of Action for Divorce

Updated: 
July 23, 2024

48-5-501. Relief that may be included in temporary order of divorce

Updated: 
July 23, 2024

At the time of the filing of the complaint or at any time after the commencement of an action for divorce under the provisions of this article and upon motion for temporary relief, notice of hearing and hearing, the court may order all or any portion of the following temporary relief described in this part 5, to govern the marital rights and obligations of the parties during the pendency of the action.

48-5-502. Temporary spousal support

Updated: 
July 23, 2024

The court may require either party to pay temporary spousal support in the form of periodic installments, or a lump sum, or both, for the maintenance of the other party.

48-5-503. Temporary parenting order; child support

Updated: 
July 23, 2024

(a) The court shall enter a temporary parenting order in accordance with the provisions of sections 9-203 and 9-204 of this chapter that incorporates a temporary parenting plan.

(b) When the action involves a minor child or children, the court shall require either party to pay temporary child support in the form of periodic installments for the maintenance of the minor children of the parties.

(c) When the action involves a minor child or children, the court shall provide for medical support for any minor children.

48-5-504. Attorney's fees and court costs

Updated: 
July 23, 2024

(a) The court may compel either party to pay attorney’s fees and court costs reasonably necessary to enable the other party to prosecute or defend the action. The question of whether or not a party is entitled to temporary spousal support is not decisive of that party’s right to a reasonable allowance of attorney’s fees and court costs.

(b) An order for temporary relief awarding attorney fees and court costs may be modified at any time during the pendency of the action, as the exigencies of the case or equity and justice may require, including, but not limited to, a modification which would require full or partial repayment of fees and costs by a party to the action to whom or on whose behalf payment of fees and costs was previously ordered. If an appeal is taken or an intention to appeal is stated, the court may further order either party to pay attorney fees and costs on appeal.

(c) If it appears to the court that a party has incurred attorney fees and costs unnecessarily because the opposing party has asserted unfounded claims or defenses for vexatious, wanton or oppressive purposes, thereby delaying or diverting attention from valid claims or defenses asserted in good faith, the court may order the offending party, or his or her attorney, or both, to pay reasonable attorney fees and costs to the other party.

48-5-505. Costs of health care and hospitalization

Updated: 
July 23, 2024

As an incident to requiring the payment of temporary spousal support, the court may order either party to continue in effect existing policies of insurance covering the costs of health care and hospitalization of the other party. If there is no such existing policy or policies, the court may order that such health care insurance coverage be paid for by a party if the court determines that such health care coverage is available to that party at a reasonable cost. Payments made to an insurer pursuant to this subdivision, either directly or by a deduction from wages, may be deemed to be temporary spousal support.

48-5-506. Use and occupancy of the marital home

Updated: 
July 23, 2024

(a) The court may grant the exclusive use and occupancy of the marital home to one of the parties during the pendency of the action, together with all or a portion of the household goods, furniture and furnishings, reasonably necessary for such use and occupancy.

(b) The court may require payments to third parties in the form of home loan installments, land contract payments, rent, payments for utility services, property taxes and insurance coverage. If these third party payments are ordered, the court may specify whether such payments or portions of payments are temporary spousal support, temporary child support, a partial distribution of marital property or an allocation of marital debt.

(c) If the court does not set forth in the temporary order that all or a portion of payments made to third parties pursuant to this section are to be deemed temporary child support, then all the payments made pursuant to this section are deemed to be temporary spousal support. The court may order third party payments to be made without denominating them as either temporary spousal support or temporary child support, reserving such decision until the court determines the interests of the parties in marital property and equitably divides the same. At the time the court determines the interests of the parties in marital property and equitably divides the same, the court may consider the extent to which payments made to third parties under the provisions of this subdivision have affected the rights of the parties in marital property and may treat these payments as a partial distribution of marital property notwithstanding the fact that these payments were denominated temporary spousal support or temporary child support or not so denominated under the provisions of this section.

(d) If the payments are not designated in an order and the parties have waived any right to receive spousal support, the court may designate the payments upon motion by any party.

(e) Nothing contained in this section shall abrogate an existing contract between either of the parties and a third party, or affect the rights and liabilities of either party or a third party under the terms of a contract.

48-5-507. Use and possession of motor vehicles

Updated: 
July 23, 2024

(a) As an incident to requiring the payment of temporary alimony, the court may grant the exclusive use and possession of one or more motor vehicles to either of the parties during the pendency of the action.

(b) The court may require payments to third parties in the form of automobile loan installments or insurance coverage, and payments made to third parties pursuant to this section are deemed to be temporary spousal support, subject to any reservation provided for in subsection (c) of this section.

(c) The court may order that third party payments made pursuant to this section be made without denominating them as temporary spousal support, reserving that decision until the court determines the interests of the parties in marital property and equitably divides the same. At the time the court determines the interests of the parties in marital property and equitably divides the same, the court may consider the extent to which payments made to third parties under the provisions of this section have affected the rights of the parties in marital property and may treat such payments as a partial distribution of marital property notwithstanding the fact that such payments have been denominated temporary spousal support or not so denominated under the provisions of this section.

(d) Nothing contained in this section will abrogate an existing contract between either of the parties and a third party or affect the rights and liabilities of either party or a third party under the terms of a contract.

 

48-5-508. Preservation of the properties of the parties

Updated: 
July 23, 2024

(a) If the pleadings include a specific request for specific property or raise issues concerning the equitable division of marital property, the court may enter an order that is reasonably necessary to preserve the estate of either or both of the parties.

(b) The court may impose a constructive trust, so that the property is forthcoming to meet any order that is made in the action, and may compel either party to give security to comply with the order, or may require the property in question to be delivered into the temporary custody of a third party.

(c) The court may order either or both of the parties to pay the costs and expenses of maintaining and preserving the property of the parties during the pendency of the action. At the time the court determines the interests of the parties in marital property and equitably divides the same, the court may consider the extent to which payments made for the maintenance and preservation of property under the provisions of this section have affected the rights of the parties in marital property and may treat such payments as a partial distribution of marital property. The court may release all or any part of such protected property for sale and substitute all or a portion of the proceeds of the sale for such property.

48-5-509. Enjoining abuse, emergency protective order

Updated: 
July 23, 2024

(a) The court may enjoin the offending party from molesting or interfering with the other, or otherwise imposing any restraint on the personal liberty of the other, or interfering with the custodial or visitation rights of the other. This order may enjoin the offending party from:

(1) Entering the school, business or place of employment of the other for the purpose of molesting or harassing the other;

(2) Contacting the other, in person or by telephone, for the purpose of harassment or threats; or

(3) Harassing or verbally abusing the other in a public place.

(b) Any order entered by the court to protect a party from abuse may grant any other relief authorized by the provisions of article twenty-seven of this chapter, if the party seeking the relief has established the grounds for that relief as required by the provisions of said article.

(c) The court, in its discretion, may enter a protective order, as provided in article twenty-seven of this chapter, as part of the final relief granted in a divorce action, either as a part of an order for temporary relief or as part of a separate order. Notwithstanding the provisions of section five hundred five of said article, a protective order entered pursuant to the provisions of this subsection shall remain in effect until a final order is entered in the divorce, unless otherwise ordered by the judge.

48-5-510. Consideration of financial factors in ordering temporary relief

Updated: 
July 23, 2024

(a) In ordering temporary relief under the provisions of this part 5, the court shall consider the financial needs of the parties, the present income of each party from any source, their income-earning abilities and the respective legal obligations of each party to support himself or herself and to support any other persons.

(b) Except in extraordinary cases supported by specific findings set forth in the order granting relief, payments of temporary spousal support and temporary child support are to be made from a party’s income and not from the corpus of a party’s separate estate, and an award of such relief shall not be disproportionate to a party’s ability to pay as disclosed by the evidence before the court: Provided, That child support shall be established in accordance with the child support guidelines set forth in article 13 of this chapter.

Article 8. Spousal Support

Updated: 
July 23, 2024

48-8-101. General provisions regarding spousal support

Updated: 
July 23, 2024

(a) An obligation that compels a person to pay spousal support may arise from the terms of a court order, an antenuptial agreement or a separation agreement. In an order or agreement, a provision that has the support of a spouse or former spouse as its sole purpose is to be regarded as an allowance for spousal support whether expressly designated as such or not, unless the provisions of this chapter specifically require the particular type of allowance to be treated as child support or a division of marital property. Spousal support may be paid as a lump sum or as periodic installments without affecting its character as spousal support.

(b) Spousal support is divided into four classes which are: (1) Permanent spousal support; (2) temporary spousal support, otherwise known as spousal support pendente lite; (3) rehabilitative spousal support; and (4) spousal support in gross.

(c) An award of spousal support cannot be ordered unless the parties are actually living separate and apart from each other.

Article 11. Support of Children

Updated: 
July 23, 2024

48-11-102. Required information in support orders

Updated: 
July 23, 2024

(a) Any order which provides for the custody or support of a minor child shall include:

(1) The name of the custodian;

(2) The amount of the support payments;

(3) The date the first payment is due;

(4) The frequency of the support payments;

(5) The event or events which trigger termination of the support obligation;

(6) A provision regarding wage withholding;

(7) The address where payments shall be sent;

(8) A provision for medical support;

(9) When child support guidelines are not followed, a specific written finding pursuant to section 13-702.

(b) Effective October 1, 1999, any order entered that provides for the payment of child support shall also include a statement that requires both parties to report any changes in gross income, either in source of employment or in the amount of gross income, to the Bureau for Child Support Enforcement and to the other party. The notice shall not be required if the change in gross income is less than a fifteen percent change in gross income.

(c) All child support orders shall contain a notice which contains language substantially similar to the following: “The amount of the monthly child support can be modified as provided by law based upon a change in the financial or other circumstances of the parties if those circumstances are among those considered in the child support formula. In order to make the modification a party must file a motion to modify the child support amount. Unless a motion to modify is filed, the child support amount will continue to be due and cannot later be changed retroactively even though there has been a change of circumstances since the entry of the order. Self help forms for modification can be found at the circuit clerk’s office.” The failure of an order to have such a provision does not alter the effectiveness of the order.

48-11-103. Child support beyond age eighteen

Updated: 
July 23, 2024

(a) An order for child support shall provide that payments of such support continue beyond the date when the child reaches the age of eighteen, so long as the child is unmarried and residing with a parent, guardian or custodian and is enrolled as a full-time student in a secondary educational or vocational program and making substantial progress towards a diploma: Provided, That such payments may not extend past the date that the child reaches the age of twenty.

(b) Nothing herein shall be construed to abrogate or modify existing case law regarding the eligibility of handicapped or disabled children to receive child support beyond the age of eighteen.

(c) The reenactment of this section during the 1994 regular session of the Legislature shall not, by operation of law, have any effect upon or vacate any order or portion thereof entered under the prior enactment of this section which awarded educational and related expenses for an adult child accepted or enrolled and making satisfactory progress in an educational program at a certified or accredited college. Any such order or portion thereof shall continue in full force and effect until the court, upon motion of a party, modifies or vacates the order upon a finding that:

(1) The facts and circumstances which supported the entry of the original order have changed, in which case the order may be modified;

(2) The facts and circumstances which supported the entry of the original order no longer exist because the child has not been accepted or is not enrolled in and making satisfactory progress in an educational program at a certified or accredited college or the parent ordered to pay such educational and related expenses is no longer able to make such payments, in which case the order shall be vacated;

(3) The child, at the time the order was entered, was under the age of sixteen years, in which case the order shall be vacated;

(4) The amount ordered to be paid was determined by an application of child support guidelines in accordance with the provisions of section one hundred one, article thirteen, et seq., of this chapter, or legislative rules promulgated thereunder, in which case the order may be modified or vacated; or

(5) The order was entered after March 14, 1994, in which case the order shall be vacated.

48-11-105. Modification of child support order

Updated: 
July 23, 2024

(a) The court may modify a child support order, for the benefit of the child, when a motion is made that alleges a change in the circumstances of a parent or another proper person or persons. A motion for modification of a child support order may be brought by a custodial parent or any other lawful custodian or guardian of the child, by a parent or other person obligated to pay child support for the child or by the Bureau for Child Support Enforcement.

(b) The provisions of the order may be modified if there is a substantial change in circumstances. If application of the guideline would result in a new order that is more than fifteen percent different, then the circumstances are considered a substantial change.

(c) An order that modifies the amount of child support to be paid shall conform to the support guidelines set forth in section one hundred one, article thirteen, et seq., of this chapter unless the court disregards the guidelines or adjusts the award as provided in section seven hundred two of said article.

(d) The Supreme Court of Appeals shall make available to the courts a standard form for a petition for modification of an order for support, which form will allege that the existing order should be altered or revised because of a loss or change of employment or other substantial change affecting income or that the amount of support required to be aid1 is not within fifteen percent of the child support guidelines. The clerk of the circuit court and the secretary-clerk of the family court shall make the forms available to persons desiring to represent themselves in filing a motion for modification of the support award.

(e) Upon entry of an order modifying a child support amount the court shall, no later than five days from entry of the order, provide a copy of the modified order to the Bureau for Child Support Enforcement. If an overpayment to one of the parties occurs as a result of the modified terms of the order, funds properly withheld by the Bureau for Child Support Enforcement pursuant the terms of the original order shall not be returned until such time as the Bureau for Child Support Enforcement receives repayment from the party in possession of the overpayment.

Article 12. Medical Support

Updated: 
July 23, 2024

48-12-102. Court-ordered medical support

Updated: 
July 23, 2024

In every action to establish or modify an order which requires the payment of child support, the court shall ascertain the ability of each parent to provide medical care for the children of the parties. In any temporary or final order establishing an award of child support or any temporary or final order modifying a prior order establishing an award of child support, the court shall address the provision of medical support through one or more of the following methods:

(1) The court shall determine whether appropriate medical insurance coverage as defined in section one hundred one of this article is available to either parent. If such insurance coverage exists, the court shall order the appropriate parent to enroll the child in that coverage and the cost of providing appropriate medical insurance shall be entered on line 5b of worksheet A for the basic shared parenting child support calculation as provided in section two hundred four, article thirteen of this code or line 12b of worksheet B for the extended shared parenting child support calculation as provided in said section.

(2) If the court does not include the cost of the medical insurance in the child support calculation, the court may order the other parent to contribute to the cost of the premium through an award of medical support. If the amount of the award of child support in the order is determined using the child support guidelines, the court shall order that nonrecurring or subsequently occurring uninsured medical expenses in excess of $250 per year per child shall be separately divided between the parties in proportion to their adjusted gross incomes.

(3) If neither parent currently has access to appropriate medical insurance coverage, the court shall take the following actions:

(a) The court shall order the parties to provide appropriate medical insurance coverage if it becomes available in the future; and

(b) The court shall order the payment of cash medical support by either or both parties. The amount of the cash medical support to be awarded is within the discretion of the court but the total of the cash medical support and cost of the insurance premiums shall not exceed five percent of the payor’s gross income.

(c) In setting a cash medical support award, the court may consider the costs of uncovered medical expenses for the child, the relative percentages of the parties’ incomes or the cost to the government to provide medical coverage for the child.

(d) If the support obligor’s adjusted gross income is less than two hundred percent of the federal poverty level, the court shall set the cash medical support amount at zero.

(e) Cash medical support shall be collected and enforced in the same manner as child support payments.

(4) The order shall require the obligor to continue to provide the Bureau for Child Support Enforcement with information as to his or her employer’s name and address and information as to the availability of employer-related insurance programs providing medical care coverage so long as the child continues to be eligible to receive support.

Article 13. Guidelines for Child Support Awards

Updated: 
July 23, 2024

48-13-403. Worksheet for calculating basic child support obligation in basic shared parenting cases

Updated: 
July 23, 2024

Child support for basic shared parenting cases shall be calculated using the following worksheet:

Worksheet A: BASIC SHARED PARENTING

IN THE FAMILY COURT OF ____________ COUNTY, WEST VIRGINIA

CASE NO.___________

 

Mother: ___________

SS No.: ___________

Primary Custodial parent?

[ ] Yes [ ] No

 

 

 

Father: ___________

SS No.: ___________

Primary Custodial parent?

[ ] Yes [ ] No

 

Children

SSN

Date of Birth

Children

SSN

Date of Birth

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PART I. CHILD SUPPORT ORDER

Mother

Father

Combined

1. MONTHLY GROSS INCOME

 

$

$

 

(Exclusive of overtime compensation)

 

 

 

 

a. Minus preexisting child support payment

 

-

-

 

b. Minus maintenance paid

 

-

-

 

c. Plus overtime compensation, if not excluded, and not to exceed 50%, pursuant to W. Va. Code § 48-1-228(b)(6)

 

+

+

 

d. Additional dependents deduction

 

-

-

 

e. Minus student loan payment pursuant to W. Va. Code § 48-13-202(3)

 

 

 

 

2. MONTHLY ADJUSTED GROSS INCOME

 

$

$

$

3. PERCENTAGE SHARE OF INCOME

 

 

 

100%

(Each parent’s income from line 2 divided by Combined Income)

 

%

%

 

4. BASIC OBLIGATION

 

 

 

$

(Use Line 2 combined to find amount from schedule.)

 

 

 

 

5. ADJUSTMENTS (Expenses paid directly by each parent)

 

 

 

 

a. Work-Related Child Care Costs Adjusted for Federal Tax Credit (0.75 x actual work-related child care costs.)

 

$

$

 

b. Extraordinary Medical Expenses (Uninsured only) and Children’s Portion of Health Insurance Premium Costs.

 

$

$

 

c. Extraordinary Expenses (Agreed to by parents or by order of the court.)

 

$

$

 

d. Minus Extraordinary Adjustments (Agreed to by parents or by order of court.)

 

-

-

 

e. Total Adjustments (For each column, add 5a, 5b, and 5c. Subtract Line 5d. Add the parent’s totals together for Combined amount.)

 

$

$

$

6. TOTAL SUPPORT OBLIGATION (Add line 4 and line 5e Combined.)

 

 

 

$

7. EACH PARENT’S SHARE OF THE TOTAL CHILD SUPPORT OBLIGATION (Line 3 x line 6 for each parent.)

 

$

$

 

8. PAYOR PARENT ADJUSTMENT

 

$

$

 

(Enter payor parent’s line 5e.)

 

 

 

 

9. RECOMMENDED CHILD SUPPORT ORDER (Subtract line 8 from line 7 for the payor parent only. Leave payee parent column blank.)

 

$

$

 

PART II. ABILITY TO PAY CALCULATION

(Complete if the payor parent’s adjusted monthly gross income is below $2,600.)

10. Spendable Income

 

 

 

 

(0.80 x line 2 for payor parent only.)

 

 

 

 

11. Self Support Reserve

 

$997

$997

 

12. Income Available for Support

 

 

 

 

(Line 10 - line 11. If less than $50, then $50)

 

 

 

 

13. Adjusted Child Support Order

 

 

 

 

(Lesser of Line 9 and Line 12.)

 

 

 

 

Comments, calculations, or rebuttals to schedule or adjustments if payor parent directly pays extraordinary expenses.

 

PREPARED BY:

 

 

Date:

 

48-13-502. Extended shared parenting worksheet

Updated: 
July 23, 2024

Child support for extended shared parenting cases shall be calculated using the following worksheet:

Worksheet B: extended shared parenting

 

IN THE FAMILY COURT OF __________________ COUNTY, WEST VIRGINIA

CASE NO____________

 

 

 

 

 

 

 

 

Mother: __________________

SS No: _____________

 

 

 

 

Father: __________________

SS No: _____________

 

 

Children

SSN

Date of Birth

Children

SSN

Date of Birth

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PART I. BASIC OBLIGATION

Mother

Father

Combined

1. MONTHLY GROSS INCOME (Exclusive of overtime compensation)

 

$

 

a. Minus preexisting child support payment

-

-

 

b. Minus maintenance paid

-

-

 

c. Plus overtime compensation, if not excluded, and not to exceed 50%, pursuant to W. Va. Code § 48-1-228(b)(6)

+

+

 

d. Additional dependent deduction

 

 

 

e. Minus student loan payment pursuant to W. Va. Code § 48-13-202(3)

 

 

 

2. MONTHLY ADJUSTED GROSS INCOME

$

$

$

3. PERCENTAGE SHARE OF INCOME (Each

 

 

100%

parent’s income from line 2 divided by Combined Income)

%

%

 

4. BASIC OBLIGATION (Use line 2 Combined to find amount from Child Support Schedule.)

 

 

$

PART II. SHARED PARENTING ADJUSTMENT

5. Shared Parenting Basic Obligation (line 4 x 1.6)

 

 

$

6. Each Parent’s Share (Line 5 x each parent’s line 3)

$

$

 

7. Overnights with Each Parent (must total 365)

 

 

365

8. Percentage with Each Parent (Line 7 divided by 365)

%

%

100%

9. Amount Retained (Line 6 x line 8 for each parent)

$

$

 

10. Each Parent’s Obligation (Line 6 - line 9)

$

$

 

11. AMOUNT TRANSFERRED FOR BASIC OBLIGATION (Subtract smaller amount on line 10 from larger amount on line 10. Parent with larger amount on line 10 owes the other parent the difference. Enter $0 for other parent.

$

$

 

PART III. ADJUSTMENTS FOR ADDITIONAL EXPENSES (Expenses paid directly by each parent.)

12a. Work-Related Child Care Costs Adjusted for Federal Tax Credit (0.75 x actual work-related child care costs.)

$

$

 

12b. Extraordinary Medical Expenses (Uninsured only) and Children’s Portion of Health Insurance Premium Costs.

$

$

 

12c. Extraordinary Additional Expenses (Agreed to by parents or by order of the court.)

$

$

 

12d. Minus Extraordinary Adjustments (Agreed to by parents or by order of the court.)

$

$

 

12e. Total Adjustments (For each column, add 12a, 12b, and 12c. Subtract line 12d. Add the parent’s totals together for Combined amount.)

$

$

$

13. Each Parent’s Share of Additional Expenses (Line 3 x line 12e Combined.)

$

$

 

14. Each Parent’s Net Share of Additional Direct Expenses (Each parent’s line 13-line 12e. If negative number, enter $0)

$

$

 

15. AMOUNT TRANSFERRED FOR ADDITIONAL EXPENSES (Subtract smaller amount on line 14 from larger amount on line 14. Parent with larger amount on line 14 owes the other parent the difference. Enter $0 for other parent.)

$

$

 

PART IV. RECOMMENDED CHILD SUPPORT ORDER

16. TOTAL AMOUNT TRANSFERRED (Line 11 + line 15)

$

$

 

17. RECOMMENDED CHILD SUPPORT ORDER (Subtract smaller amount on line 16 from larger amount on line 16. Parent with larger amount on line 16 owes the other parent the difference.)

$

$

 

Comments, calculations, or rebuttals to schedule or adjustments

 

PREPARED BY:

 

Date:

 

48-13-702. Disregard of formula

Updated: 
July 23, 2024

(a) If the court finds that the guidelines are inappropriate in a specific case, the court may either disregard the guidelines or adjust the guidelines-based award to accommodate the needs of the child or children or the circumstances of the parent or parents. In either case, the reason for the deviation and the amount of the calculated guidelines award must be stated on the record (preferably in writing on the worksheet or in the order). Such findings clarify the basis of the order if appealed or modified in the future.

(b) These guidelines do not take into account the economic impact of the following factors that may be possible reasons for deviation:

(1) Special needs of the child or support obligor, including, but not limited to, the special needs of a minor or adult child who is physically or mentally disabled;

(2) Educational expenses for the child or the parent (i.e. those incurred for private, parochial, or trade schools, other secondary schools, or post-secondary education where there is tuition or costs beyond state and local tax contributions);

(3) Families with more than six children;

(4) Long distance visitation costs;

(5) The child resides with third party;

(6) The needs of another child or children to whom the obligor owes a duty of support;

(7) The extent to which the obligor’s income depends on nonrecurring or nonguaranteed income; or

(8) Whether the total of spousal support, child support and child care costs subtracted from an obligor’s income reduces that income to less than the federal poverty level and conversely, whether deviation from child support guidelines would reduce the income of the child’s household to less than the federal poverty level.

Article 14. Remedies for the Enforcement of Support Obligations

Updated: 
July 23, 2024

48-14-102. Who may bring action for child support order

Updated: 
July 23, 2024

An action may be brought under the provisions of section one hundred one of this article by:

(1) A custodial parent of a child when the divorce order or other order which granted custody did not make provision for the support of the child by the obligor;

(2) A primary caretaker of a child;

(3) A guardian of the property of a child or the committee for a child; or

(4) The Bureau for Child Support Enforcement, on behalf of the state, when the Department of Human Services is providing assistance on behalf of the child or the person to whom a duty of support is owed, in the form of temporary assistance to needy families or medical assistance, and any right to support has been assigned to the department or in any other case wherein a party has applied for child support enforcement services from the Bureau for Child Support Enforcement.

Article 18. Bureau for Child Support Enforcement

Updated: 
July 23, 2024

48-18-126. Review and adjustment of child support orders

Updated: 
July 23, 2024

(a) Either parent or, if there has been an assignment of support to the Bureau for Child Support enforcement shall have the right to request an administrative review of the child support award in the following circumstances:

(1) Where the request for review is received thirty-six months or more after the date of the entry of the order or from the completion of the previous administrative review, whichever is later, the Bureau for Child Support enforcement shall conduct a review to determine whether the amount of the child support award in such order varies from the amount of child support that would be awarded at the time of the review pursuant to the guidelines for child support awards contained in article 13-101, et seq. If the amount of the child support award under the existing order differs by ten percent or more from the amount that would be awarded in accordance with the child support guidelines, the Bureau for Child Support enforcement shall file with the family court a motion for modification of the child support order. If the amount of the child support award under the existing order differs by less than ten percent from the amount that would be awarded in accordance with the child support guidelines, the Bureau for Child Support enforcement may, if it determines that such action is in the best interest of the child or otherwise appropriate, file with the family court a motion for modification of the child support order.

(2) Where the request for review of a child support award is received less than thirty-six months after the date of the entry of the order or from the completion of the previous administrative review, the Bureau for Child Support enforcement shall undertake a review of the case only where it is alleged that there has been a substantial change in circumstances. If the Bureau for Child Support enforcement determines that there has been a substantial change in circumstances and if it is in the best interests of the child, the bureau shall file with the family court a motion for modification of the child support order in accordance with the guidelines for child support awards contained in article 13-101, et seq., of this chapter.

(b) The Bureau for Child Support enforcement shall notify both parents at least once every three years of their right to request a review of a child support order. The notice may be included in any order granting or modifying a child support award. The Bureau for Child Support enforcement shall give each parent at least thirty days’ notice before commencing any review and shall further notify each parent, upon completion of a review, of the results of the review, whether of a proposal to move for modification or of a proposal that there should be no change.

(c) When the result of the review is a proposal to move for modification of the child support order, each parent shall be given thirty days’ notice of the hearing on the motion, the notice to be directed to the last known address of each party by first-class mail. When the result of the review is a proposal that there be no change, any parent disagreeing with that proposal may, within thirty days of the notice of the results of the review, file with the court a motion for modification setting forth in full the grounds therefor.

(d) For the purposes of this section, a “substantial change in circumstances” includes, but is not limited to, a changed financial condition, a temporary or permanent change in physical custody of the child which the court has not ordered, increased need of the child or other financial conditions. “Changed financial conditions” means increases or decreases in the resources available to either party from any source. Changed financial conditions includes, but is not limited to, the application for or receipt of any form of public assistance payments, unemployment compensation and workers’ compensation or a fifteen percent or more variance from the amount of the existing order and the amount of child support that would be awarded according to the child support guidelines.

48-18-202. Request for assistance by party

Updated: 
July 23, 2024

(a) To make a request for assistance under this article, a party shall submit the request in writing to the Bureau for Child Support Enforcement on a form provided by the bureau. The written request form shall include all of the requesting party’s information known to the party that is relevant to determine the child support amount. The request shall be accompanied by:

(1) A copy of the order being modified or, in the discretion of the bureau, information sufficient to permit the bureau to retrieve or identify the order;

(2) A form containing a statement of all of the requesting party’s information known to the party that is relevant to determining the amount of child support, including a general statement or argument advancing the reason the request is being made;

(3) Copies of documentation reasonably available to the requesting party setting forth all of the requesting party’s information that is relevant to determine the amount of child support;

(4) A statement setting forth the relevant information pertaining to the responding party’s earnings and child support that is known or believed to be true by the requesting party;

(5) Copies of any relevant documentation which the requesting party may have in its possession which would be relevant to determining the responding party’s child support obligations; and

(6) A statement of all other known proceedings, pending court proceedings or other pending requests for assistance involving the parties or related to the child or children whose support is being reevaluated.

(b) Upon receipt of notification that an obligor is incarcerated in a regional jail or a state or federal correctional facility, the Bureau for Child Support Enforcement shall determine whether the expected incarceration will exceed six months. If the incarceration will exceed six months, the bureau shall file a petition to modify child support.

Article 24. Establishment of Paternity

Updated: 
July 23, 2024

48-24-104. Establishment of paternity and duty of support

Updated: 
July 23, 2024

(a) When the respondent, by verified responsive pleading, admits that the man is the father of the child and owes a duty of support, or if after a hearing on the merits, the court shall find, by clear and convincing evidence that the man is the father of the child, the court shall, subject to the provisions of subsection (c) of this section, order support in accordance with the support guidelines set forth in article 13-101, et seq., and the payment of incurred expenses as provided in subsection (e) of this section.

(b) Upon motion by a party, the court shall issue a temporary order for child support pending a judicial determination of parentage if there is clear and convincing evidence of paternity on the basis of genetic tests or other scientifically recognized evidence.

(c) Reimbursement support ordered pursuant to this section shall be limited to a period not to exceed thirty-six months prior to the service of notice of the commencement of paternity or support establishment, unless the court finds, by clear and convincing evidence:

(1) That the respondent had actual knowledge that he was believed to be the father of the child;

(2) That the respondent deliberately concealed his whereabouts or deliberately evaded attempts to serve process upon himself or herself; or

(3) That the respondent deliberately misrepresented relevant information which would have enabled the petitioner to proceed with the cause of action.

If the court finds by clear and convincing evidence that the circumstances in subsection (1), (2) or (3) exist, then the court shall order reimbursement support to the date of birth of the child, subject to the equitable defense of laches.

(d) The court shall give full faith and credit to a determination of paternity made by any other state, based on the laws of that state, whether established through voluntary acknowledgment or through administrative or judicial process.

(e) Bills for pregnancy, childbirth and genetic testing are admissible and constitute prima facie evidence of medical expenses incurred.

(f) The thirty-six month limitation on reimbursement support does not apply to the award of medical expenses incurred.

(g) For purposes of this section, “reimbursement support” means the amount of money awarded as child support for a period of time prior to the entry of the order which establishes the support obligation.

Article 27. Prevention and Treatment or Domestic and Family Violence

Updated: 
July 23, 2024

Part 1. General Provisions.

Updated: 
July 23, 2024

48-27-101. Findings and purposes

Updated: 
July 23, 2024

(a) Circuit courts, family courts and magistrate courts, have concurrent jurisdiction over domestic violence proceedings as provided in this article.

(b) The Supreme Court of Appeals is authorized to assign an appropriate judicial officer for one pilot domestic violence court in any jurisdiction chosen by the Supreme Court of Appeals. The judicial officer assigned has the authority and jurisdiction to preside over criminal misdemeanor crimes of domestic violence involving family or household members as defined in subdivisions one through six and paragraphs (A), (B) and (H), subdivision seven, section two hundred four of this article, relating to offenses under subsections (b) and (c), section nine, article two, chapter sixty-one of this code, misdemeanor violations of section nine-a, article two, chapter sixty-one of this code, misdemeanor violations of section twenty-eight, article two, chapter sixty-one of this code, misdemeanor offenses under article three, chapter sixty-one of this code, where the alleged perpetrator and the victim are said family or household members, subdivisions seven and eight, section seven, article seven, chapter sixty-one of this code and civil and criminal domestic violence protective order proceedings as provided in this article. The judicial officer chosen for any pilot domestic violence court may be a current or senior status circuit judge, family court judge, temporary family court judge or magistrate. The Supreme Court of Appeals is requested to maintain statistical data to determine the feasibility and effectiveness of any pilot domestic violence court established by the provisions of this section. The program shall terminate December 31, 2016, and the Supreme Court is requested to provide a report to the President of the Senate and the Speaker of the House of Delegates regarding the program’s efficacy prior to the regular sessions of the Legislature in 2015 and 2016.

(c) The assigned judicial officer, in this pilot domestic violence court, does not have jurisdiction to preside over any felony crimes.

Part 2. Definitions

Updated: 
July 23, 2024

48-27-201. Applicability of definitions.

Updated: 
July 23, 2024

For the purposes of this article and article 26-101, et seq., of this chapter, the words or terms defined in this article, and any variation of those words or terms required by the context, have the meanings ascribed to them in this section. These definitions are applicable unless a different meaning clearly appears from the context.


48-27-202. Domestic violence defined

Updated: 
July 23, 2024

“Domestic violence” or “abuse” means the occurrence of one or more of the following acts between family or household members, as that term is defined in section two hundred four of this article:

(1) Attempting to cause or intentionally, knowingly or recklessly causing physical harm to another with or without dangerous or deadly weapons;

(2) Placing another in reasonable apprehension of physical harm;

(3) Creating fear of physical harm by harassment, stalking, psychological abuse or threatening acts;

(4) Committing either sexual assault or sexual abuse as those terms are defined in articles eight-b and eight-d, chapter sixty-one of this code; and

(5) Holding, confining, detaining or abducting another person against that person’s will.

48-27-203. Emergency hearing defined

Updated: 
July 23, 2024

“Emergency hearing” means the hearing before a magistrate upon the filing of a petition for a protective order. An emergency hearing may be held ex parte.


48-27-204. Family or household members defined

Updated: 
July 23, 2024

“Family or household members” means persons who:

(1) Are or were married to each other;

(2) Are or were living together as spouses;

(3) Are or were sexual or intimate partners;

(4) Are or were dating: Provided, That a casual acquaintance or ordinary fraternization between persons in a business or social context does not establish a dating relationship;

(5) Are or were residing together in the same household;

(6) Have a child in common regardless of whether they have ever married or lived together;

(7) Have the following relationships to another person:

(A) Parent;
(B) Stepparent;
(C) Brother or sister;
(D) Half-brother or half-sister;
(E) Stepbrother or stepsister;
(F) Father-in-law or mother-in-law;
(G) Stepfather-in-law or stepmother-in-law;
(H) Child or stepchild;
(I) Daughter-in-law or son-in-law;
(J) Stepdaughter-in-law or stepson-in-law;
(K) Grandparent;
(L) Step grandparent;
(M) Aunt, aunt-in-law or step aunt;
(N) Uncle, uncle-in-law or step uncle;
(O) Niece or nephew;
(P) First or second cousin; or

(8) Have the relationships set forth in paragraphs (A) through (P), subdivision (7) of this section to a family or household member, as defined in subdivisions (1) through (6) of this section.

48-27-205. Final hearing defined

Updated: 
July 23, 2024

“Final hearing” means the hearing before a family court judge following the entry of an order by a magistrate as a result of the emergency hearing.


48-27-206. Law-enforcement agency defined

Updated: 
July 23, 2024

(a) “Law-enforcement agency” means and is limited to:
 

(1) The state police and its members;
 

(2) A county sheriff and his or her law-enforcement deputies;
 

(3) A police department in any municipality as defined in section two, article one, chapter eight of this code; and
 

(4) Any federal agency whose purpose includes enforcement, maintenance and gathering of information of both criminal and civil records relating to domestic violence under federal law.
 

(b) The term “law-enforcement agency” includes, but is not limited to, the Department of Human Services in those instances of child abuse reported to the department that are not otherwise reported to any other law-enforcement agency.

48-27-207. Program for victims of domestic violence defined

Updated: 
July 23, 2024

“Program for victims of domestic violence” means a licensed program for victims of domestic violence and their children, which program provides advocacy, shelter, crisis intervention, social services, treatment, counseling, education or training.


48-27-209. Protective order defined

Updated: 
July 23, 2024

“Protective order” means an emergency protective order entered by a magistrate as a result of the emergency hearing or a protective order entered by a family court judge upon final hearing.


Part 3. Procedure

Updated: 
July 23, 2024

48-27-301. Jurisdiction

Updated: 
July 23, 2024

(a) Circuit courts, family courts and magistrate courts have concurrent jurisdiction over domestic violence proceedings as provided in this article.

(b) The Supreme Court of Appeals is authorized to assign appropriate judicial officers for five domestic violence courts in any jurisdiction chosen by the Supreme Court of Appeals. Judicial officers so assigned have the authority and jurisdiction to preside over criminal misdemeanor crimes of domestic violence involving family or household members as defined in subdivisions (1) through (6), inclusive, and paragraphs (A), (B) and (H), subdivision (7), section two hundred four of this article, relating to offenses under subsections (b) and (c), section nine, article two, chapter sixty-one of this code, misdemeanor violations of section nine-a, article two, chapter sixty-one of this code, misdemeanor violations of section twenty-eight, article two, chapter sixty-one of this code, misdemeanor offenses under article three, chapter sixty-one of this code where the alleged perpetrator and the victim are said family or household members, subdivisions (7) and (8), section seven, article seven, chapter sixty-one of this code and civil and criminal domestic violence protective order proceedings as provided in this article. The judicial officer chosen for any domestic violence court may be a current or senior status circuit judge, family court judge, temporary family court judge or magistrate. The Supreme Court of Appeals is requested to maintain statistical data to determine the feasibility and effectiveness of any domestic violence court established by the provisions of this section.

(c) The assigned judicial officer in a domestic violence court does not have jurisdiction to preside over any felony crimes unless the assigned judicial officer is a circuit court judge.

48-27-302. Venue

Updated: 
July 23, 2024

The action may be heard in the county in which the domestic violence occurred, in the county in which the respondent is living or in the county in which the petitioner is living, either temporarily or permanently. If the parties are married to each other, the action may also be brought in the county in which an action for divorce between the parties may be brought as provided by 5-106.

48-27-303. Effect of petitioner leaving residence

Updated: 
July 23, 2024

The petitioner’s right to relief under this article shall not be affected by his or her leaving a residence or household to avoid further abuse.

48-27-304. Commencement of proceeding

Updated: 
July 23, 2024

(a) An action under this article is commenced by the filing of a verified petition in the magistrate court.

(b) No person shall be refused the right to file a petition under the provisions of this article. No person shall be denied relief under the provisions of this article if she or he presents facts sufficient under the provisions of this article for the relief sought.

(c) Husband and wife are competent witnesses in domestic violence proceedings and cannot refuse to testify on the grounds of the privileged nature of their communications.

48-27-305. Persons who may file petition

Updated: 
July 23, 2024

A petition for a protective order may be filed by:

(1) A person seeking relief under this article for herself or himself;

(2) An adult family or household member for the protection of the victim or for any family or household member who is a minor child or physically or mentally incapacitated to the extent that he or she cannot file on his or her own behalf, or

(3) A person who reported or was a witness to domestic violence and who, as a result, has been abused, threatened, harassed or who has been the subject of other actions intended to intimidate the person.

48-27-306. Counterclaim or affirmative defenses

Updated: 
July 23, 2024

(a) A respondent named in a petition alleging domestic violence may file a verified counterclaim stating any claim that the respondent has against the petitioner that would be a basis for filing a petition under this article.

(b) In response to a petition or counterclaim, the person alleged to have committed the domestic violence may assert any affirmative defense that he or she may have available.

48-27-307. Persons accompanying petitioner

Updated: 
July 23, 2024

No person accompanying a person who is seeking to file a petition under the provisions of this article is precluded from being present if his or her presence is desired by the person seeking a petition unless the person’s behavior is disruptive to the proceeding.

48-27-308. Charges for fees and costs postponed

Updated: 
July 23, 2024

No fees shall be charged for the filing of petitions or other papers, service of petitions or orders, copies of orders, or other costs for services provided by, or associated with, any proceedings under this article until the matter is brought before the court for final resolution.


48-27-309. Priority of petitions

Updated: 
July 23, 2024

Any petition filed under the provisions of this article shall be given priority over any other civil action before the court, except actions in which trial is in progress, and shall be docketed immediately upon filing.

48-27-310. Full faith and credit

Updated: 
July 23, 2024

Any protective order issued pursuant to this article shall be effective throughout the state in every county. Any protection order issued by any other state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States or any Indian tribe or band that has jurisdiction to issue protection orders shall be accorded full faith and credit and enforced in accordance with the provisions of article twenty-eight of this chapter.

48-27-311. Service of process

Updated: 
July 23, 2024

A protective order may be served:

(1) On the respondent by means of a Class I legal advertisement published notice, with the publication area being the most current known county in which the respondent resides, published in accordance with the provisions of section two, article three, chapter fifty-nine of this code if personal service by law enforcement has been unsuccessful. Simultaneously with the publication, the respondent shall be served with the protective order and the order of publication by first class mail to the respondent’s most current known residential address.

(2) Against nonresident persons by the manner prescribed in section thirty-three-a, article three, chapter fifty-six of this code.

Any protective order issued by the court of this state which is served in compliance with the provisions of Rule 4(f) of the West Virginia Rules of Civil Procedure served outside the boundaries of this state shall carry the same force and effect as if it had been personally served within this state’s boundaries.

48-27-312. Production of documents pursuant to a subpoena duces tecum

Updated: 
July 23, 2024

Notwithstanding any provision of law or any procedural rule to the contrary, any record in a proceeding filed pursuant to this article shall be supplied to any person presenting a subpoena duces tecum issued by a state or federal court in any criminal action or action filed pursuant to this article. Any record in a proceeding filed pursuant to this article is not subject to disclosure pursuant to a subpoena if the subpoena was issued in a civil action. In civil proceedings a court, for good cause shown, may enter an order permitting a person who is not otherwise permitted access to a court file to examine and copy records of a proceeding filed pursuant to this article: Provided, That the court shall enter such order as may be necessary to protect any document containing the address or other contact information of a person who filed a petition under this article: Provided, however, That any records obtained pursuant to the provisions of this section shall be used only in the context of the case in which the subpoena was issued and not for any other purpose.


Part 4. Coordination with Pending Court Actions

Updated: 
July 23, 2024

48-27-401. Interaction between domestic proceedings

Updated: 
July 23, 2024

(a) During the pendency of a divorce action, a person may file for and be granted relief provided by this article until an order other than a procedural order is entered in the divorce action pursuant to Part 5-501, et seq.

(b) If a person who has been granted relief under this article should subsequently become a party to an action for divorce, separate maintenance or annulment, such person shall remain entitled to the relief provided under this article including the right to file for and obtain any further relief, so long as no temporary order other than a procedural order has been entered in the action for divorce, annulment and separate maintenance, pursuant to Part 5-501, et seq.

(c) Except as provided in section 5-509 of this chapter and section 27-402 of this article for a petition and a temporary emergency protective order, no person who is a party to a pending action for divorce, separate maintenance or annulment in which an order other than a procedural order has been entered pursuant to Part 5-501, et seq. of this chapter, shall be entitled to file for or obtain relief against another party to that action under this article until after the entry of a final order which grants or dismisses the action for divorce, annulment or separate maintenance.

(d) Notwithstanding the provisions set forth in section 27-505, when an action seeking a divorce, an annulment or separate maintenance, the allocation of custodial responsibility or a habeas corpus action to establish custody, the establishment of paternity, the establishment or enforcement of child support, or other relief under the provisions of this chapter is filed or is reopened by petition, motion or otherwise, then any order issued pursuant to this article which is in effect on the day the action is filed or reopened shall remain in full force and effect by operation of this statute until: (1) A temporary order other than a procedural order or a final order is entered pursuant to the provisions of Part 5-501, et seq. or Part 6-601 et seq., of this chapter; or (2) an order is entered modifying such order issued pursuant to this article; or (3) the entry of a final order granting or dismissing the action. The Supreme Court of Appeals shall provide by rule for notice of the extension of the Domestic Violence Order to be provided to the parties, law enforcement and the domestic violence registry by the clerk of the court, or clerks of the courts, in which the action or actions are filed.

48-27-402. Proceedings in magistrate court when temporary divorce, annulment or separate maintenance or custody order is in effect

Updated: 
July 23, 2024

(a) The provisions of this section apply where a temporary order has been entered by a family court in an action for divorce, annulment, separate maintenance or custody, notwithstanding the provisions of subsection 27-401(c) of this article.
(b) A person who is a party to an action for divorce, annulment, separate maintenance or custody in which a temporary order has been entered pursuant to section 5-501 of this chapter may petition the magistrate court for a temporary emergency protective order pursuant to this section for any violation of the provisions of this article occurring after the date of entry of the temporary order pursuant to section 5-501 of this chapter.
(c) The only relief that a magistrate may award pursuant to this section is a temporary emergency protective order:
(1) Directing the respondent to refrain from abusing the petitioner or minor children, or both;
(2) Ordering the respondent to refrain from entering the school, business or place of employment of the petitioner or household members or family members for the purpose of violating the protective order; and
(3) Ordering the respondent to refrain from contacting, telephoning, communicating with, harassing or verbally abusing the petitioner.
(d) A temporary emergency protective order may modify an award of custody or visitation only upon a showing, by clear and convincing evidence, of the respondent’s abuse of a child, as abuse is defined in section 27-202 of this article. An order of modification shall clearly state which party has custody and describe why custody or visitation arrangements were modified.
(e)(1) The magistrate shall forthwith transmit a copy of any temporary emergency protective order, together with a copy of the petition, by mail or by facsimile machine to the family court in which the action is pending and to law-enforcement agencies. The family court shall set a hearing on the matter to be held no later than ten days following the entry of the order by magistrate. The family court shall give notice of the hearing date, time and place to the parties and shall advise them of their opportunity to appear and participate in a hearing to determine whether the order entered by the magistrate should be extended by the family court to a date certain or should be vacated. The notice shall also provide that a party’s failure to appear may result in the entry of an order extending the order entered by the magistrate to a date certain or vacating the order of the magistrate. Subsequent to the hearing, the family court shall forthwith enter an order and cause the same to be served on the parties and transmitted by mail or by facsimile machine to the issuing magistrate. The magistrate court clerk shall forward a copy of the family court order to law-enforcement agencies.
(2) If no temporary order has been entered in the pending action for divorce, annulment, separate maintenance or custody, the family court shall forthwith return the order with such explanation to the issuing magistrate. The magistrate who issued the order shall vacate the order, noting thereon the reason for termination. The magistrate court clerk shall transmit a copy of the vacated order to the parties and law-enforcement agencies.
(f) Notwithstanding any other provision of this code, if the family court extends the temporary emergency protective order entered by the magistrate or if, pursuant to the provisions of section 5-509, the family court enters a protective order as temporary relief in an action for divorce, the family court order shall be treated and enforced as a protective order issued under the provisions of this article.

48-27-403. Emergency protective orders of court; hearings; persons present

Updated: 
July 23, 2024

(a) Upon the filing of a verified petition under this article, the magistrate court may enter an emergency protective order as it may determine necessary to protect the petitioner or minor children from domestic violence and, upon good cause shown, may do so ex parte without the necessity of bond being given by the petitioner. Clear and convincing evidence of immediate and present danger of abuse to the petitioner or minor children constitutes good cause for the issuance of an emergency protective order pursuant to this section. If the respondent is not present at the proceeding, the petitioner or the petitioner’s legal representative shall certify to the court, in writing, the efforts which have been made to give notice to the respondent or just cause why notice should not be required. Copies of medical reports or records may be admitted into evidence to the same extent as though the original reports or records. The custodian of the records is not required to be present to authenticate the records for any proceeding held pursuant to this subsection. If the magistrate court determines to enter an emergency protective order, the order shall prohibit the respondent from possessing firearms.

(b) Following the proceeding, the magistrate court shall order a copy of the petition to be served immediately upon the respondent, together with a copy of any emergency protective order entered pursuant to the proceedings, a notice of the final hearing before the family court, and a statement of the right of the respondent to appear and participate in the final hearing, as provided in subsection (d) of this section. Copies of any order entered under the provisions of this section, a notice of the final hearing before the family court, and a statement of the right of the petitioner to appear and participate in the final hearing, as provided in subsection (d) of this section, shall also be delivered to the petitioner. Copies of any order entered shall also be delivered to any law-enforcement agency having jurisdiction to enforce the order, including municipal police, the county sheriff’s office and local office of the State Police, within 24 hours of the entry of the order. An emergency protective order is effective until modified by order of the family court upon hearing as provided in subsection (d) of this section. The order is in full force and effect in every county in this state.

(c) Subsequent to the entry of the emergency protective order, service on the respondent, and the delivery to the petitioner and law-enforcement officers, the court file shall be transferred to the office of the clerk of the circuit court for use by the family court.

(d) The family court shall schedule a final hearing on each petition in which an emergency protective order has been entered by a magistrate. The hearing shall be scheduled not later than 10 days following the entry of the order by the magistrate. The notice of the final hearing shall be served on the respondent and delivered to the petitioner, as provided in subsection (b) of this section, and must set forth the hearing date, time, and place and include a statement of the right of the parties to appear and participate in the final hearing. The notice must also provide that the petitioner’s failure to appear will result in a dismissal of the petition and that the respondent’s failure to appear may result in the entry of a protective order against him or her for a period of 90 or 180 days, as determined by the court. The notice must also include the name, mailing address, physical location, and telephone number of the family court having jurisdiction over the proceedings. To facilitate the preparation of the notice of final hearing required by the provisions of this subsection, the family court must provide the magistrate court with a day and time in which final hearings may be scheduled before the family court within the time required by law.

(e) Upon final hearing the petitioner must prove, by a preponderance of the evidence, the allegation of domestic violence or that he or she reported or witnessed domestic violence against another and has, as a result, been abused, threatened, harassed, or has been the subject of other actions to attempt to intimidate him or her, or the petition shall be dismissed by the family court. If the respondent has not been served with notice of the emergency protective order, the hearing may be continued to permit service to be effected. The failure to obtain service upon the respondent does not constitute a basis to dismiss the petition. Copies of medical reports may be admitted into evidence to the same extent as though the original thereof, upon proper authentication, by the custodian of the records.

(f) A person requested by a party to be present during a hearing held under the provisions of this article shall not be precluded from being present unless that person is to be a witness in the proceeding and a motion for sequestration has been made and the motion has been granted. A person found by the court to be disruptive may be precluded from being present.

(g) Upon hearing, the family court may dismiss the petition or enter a protective order for a period of 90 days or, in the discretion of the court, for a period of 180 days. The hearing may be continued on motion of the respondent, at the convenience of the court. Otherwise, the hearing may be continued by the court no more than seven days. If a hearing is continued, the family court may modify the emergency protective order as it considers necessary.

(h) Notwithstanding any other provision of this code to the contrary, a petition filed pursuant to this section that results in the issuance of an emergency protective order naming a juvenile as the respondent in which the petition for the emergency protective order is filed by or on behalf of the juvenile’s parent, guardian or custodian, or other person with whom the juvenile resides shall be treated as a petition authorized by § 49-4-704 of this code, alleging the juvenile is a juvenile delinquent: Provided, That the magistrate court shall notify the prosecuting attorney in the county where the emergency protective order is issued within 24 hours of the issuance of the emergency protective order and the prosecuting attorney may file an amended verified petition to comply with the provisions of § 49-4-704(a) of this code within two judicial days.

Part 5. Protective Orders; Visitation Orders

Updated: 
July 23, 2024

48-27-501. Issuance of protective order; modification of order

Updated: 
July 23, 2024

(a) Upon final hearing, the court shall enter a protective order if it finds, after hearing the evidence, that the petitioner has proved the allegations of domestic violence by a preponderance of the evidence. If the respondent is present at the hearing and elects not to contest the allegations of domestic violence or does not contest the relief sought, the petitioner is not required to produce evidence and prove the allegations of domestic violence and the court may directly address the issues of the relief requested.

(b) The court may modify the terms of a protective order at any time upon subsequent petition filed by any party.


48-27-502. Mandatory provisions in protective order

Updated: 
July 23, 2024

(a) A protective order must order the respondent to refrain from abusing, harassing, stalking, threatening or otherwise intimidating the petitioner or the minor children, or engaging in other conduct that would place the petitioner or the minor children in reasonable fear of bodily injury.

(b) The protective order must prohibit the respondent from possessing any firearm or ammunition.

(c) The protective order must inform the respondent that he or she is prohibited from possessing any firearm or ammunition and that possession of a firearm or ammunition while subject to the court’s protective order is a criminal offense under state and federal law, notwithstanding the fact that the respondent might otherwise have a right to possess a firearm.

(d) The protective order must inform the respondent that the order is in full force in every county of this state.

(e) The protective order must contain on its face the following statement, printed in bold-faced type or in capital letters:

“VIOLATION OF THIS ORDER MAY BE PUNISHED BY CONFINEMENT IN A REGIONAL JAIL FOR AS LONG AS ONE YEAR AND BY A FINE OF AS MUCH AS $2,000”.

48-27-503. Permissive provisions in protective order

Updated: 
July 23, 2024

The terms of a protective order may include:

(1) Granting possession to the petitioner of the residence or household jointly resided in at the time the abuse occurred;

(2) Ordering the respondent to refrain from entering or being present in the immediate environs of the residence of the petitioner;

(3) Awarding temporary custody of or establishing temporary visitation rights with regard to minor children named in the order;

(4) Establishing terms of temporary visitation with regard to the minor children named in the order including, but not limited to, requiring third party supervision of visitations if necessary to protect the petitioner and/or the minor children;

(5) Ordering the noncustodial parent to pay to the caretaker parent a sum for temporary support and maintenance of the petitioner and children, if any;

(6) Ordering the respondent to pay to the petitioner a sum for temporary support and maintenance of the petitioner, where appropriate;

(7) Ordering the respondent to refrain from entering the school, business or place of employment of the petitioner or household or family members for the purpose of violating the protective order;

(8) Ordering the respondent to participate in an intervention program for perpetrators;

(9) Ordering the respondent to refrain from contacting, telephoning, communicating, harassing or verbally abusing the petitioner;

(10) Providing for either party to obtain personal property or other items from a location, including granting temporary possession of motor vehicles owned by either or both of the parties, and providing for the safety of the parties while this occurs, including ordering a law-enforcement officer to accompany one or both of the parties;

(11) Ordering the respondent to reimburse the petitioner or other person for any expenses incurred as a result of the domestic violence, including, but not limited to, medical expenses, transportation and shelter;

(12) Ordering the petitioner and respondent to refrain from transferring, conveying, alienating, encumbering or otherwise dealing with property which could otherwise be subject to the jurisdiction of the court or another court in an action for divorce or support, partition or in any other action affecting their interests in property;

(13) Awarding the petitioner the exclusive care, possession, or control of any animal owned, possessed, leased, kept or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent and prohibiting the respondent from taking, concealing, molesting, physically injuring, killing or otherwise disposing of the animal and limiting or precluding contact by the respondent with the animal; and

(14) Ordering any other relief the court deems necessary to protect the physical safety of petitioner or those persons for whom a petition may be filed as provided in subdivision (2), section three hundred five of this article.

48-27-504. Provisions in protective order for person witnessing or reporting domestic violence

Updated: 
July 23, 2024

When the person to be protected is a person who reported or was a witness to the domestic violence, the terms of a protective order may order:

(1) The respondent to refrain from abusing, contacting, telephoning, communicating, harassing, verbally abusing or otherwise intimidating the person to be protected;

(2) The respondent to refrain from entering the school, business or place of employment of the person to be protected for the purpose of violating the protective order; and

(3) The respondent to refrain from entering or being present in the immediate environs of the residence of the petitioner.


48-27-505. Time period a protective order is in effect; extension of order; notice of order or extension

Updated: 
July 23, 2024

(a) Except as otherwise provided in subsection (d), section four hundred one of this article, a protective order, entered by the family court pursuant to this article, is effective for either ninety days or one hundred eighty days, in the discretion of the court. Upon receipt of a written request for renewal from the petitioner prior to the expiration of the original order, the family court shall extend its order for an additional ninety-day period.


(b) Notwithstanding the provisions of subsection (a), the court may enter a protective order for a period of one year if the court finds by a preponderance of the evidence, after a hearing that any of the following aggravating factors are present:

(1) That there has been a material violation of a previously entered protective order;

(2) That two or more protective orders have been entered against the respondent within the previous five years;

(3) That respondent has one or more prior convictions for domestic battery or assault or a felony crime of violence where the victim was a family or household member;

(4) That the respondent has committed a violation of the provisions of section nine-a, article two, chapter sixty-one of this code against a person protected by an existing order of protection; or

(5) That the totality of the circumstances presented to the court require a one year period in order to protect the physical safety of the petitioner or those persons for whom a petition may be filed as provided in subdivision (2), section three hundred five of this article.

(c) The court may extend a protective order entered pursuant to subsection (b) of this section for whatever period the court considers necessary to protect the physical safety of the petitioner or those persons for whom a petition may be filed as provided in subdivision (2), section three hundred five of this article, if the court finds by a preponderance of evidence, after a hearing of which respondent has been given notice, that:

(1) A material violation of the existing protective order has occurred; or

(2) Respondent has committed a material violation of a provision of a final order entered pursuant to subsection (c), section six hundred eight, article five of this chapter has occurred.

(d) To be effective, a written request to renew a ninety or one hundred eighty-day order must be submitted to the court prior to the expiration of the original order period. A notice of the extension shall be sent by the clerk of the court to the respondent by first-class mail, addressed to the last known address of the respondent as indicated by the court file. The extension of time is effective upon mailing of the notice.

(e) Certified copies of any order entered or extension notice made under the provisions of this section shall be served upon the respondent by first class mail, addressed to the last known address of the respondent as indicated by the court file, and delivered to the petitioner and any law-enforcement agency having jurisdiction to enforce the order, including the city police, the county sheriff’s office or local office of the West Virginia State Police within twenty-four hours of the entry of the order. The protective order shall be in full force and effect in every county of this state.

(f) The family court may modify the terms of a protective order upon motion of either party.

(g) The clerk of the circuit court shall cause a copy of any protective order entered by the family court pursuant to the provisions of this article or pursuant to the provisions of chapter forty-eight of this code to be forwarded to the magistrate or magistrate court clerk and the magistrate or magistrate court clerk shall forward a copy of the protective order to the appropriate state and federal agencies for registration of domestic violence offenders as required by state and federal law.

48-27-506. Effect of protective order on real and personal property

Updated: 
July 23, 2024

No order entered pursuant to this article may in any manner affect title to any real property, except as provided in section 14-301 for past due child support. The personal property of any person ordered to pay child support pursuant to the provisions of this article is subject to a lien for past due child support as provided in part 14-201, et seq.

48-27-507. Mutual protective orders prohibited

Updated: 
July 23, 2024

Mutual protective orders are prohibited unless both parties have filed a petition under part three of this article and have proven the allegations of domestic violence by a preponderance of the evidence. This shall not prevent other persons, including the respondent, from filing a separate petition. The court may consolidate two or more petitions if he or she determines that consolidation will further the interest of justice and judicial economy. The court shall enter a separate order for each petition filed: Provided, That nothing in this section shall preclude the court from entering an order restricting contact pursuant to section two-a, article two-a, chapter fifty-one of this code.


48-27-508. Costs to be paid to family court fund

Updated: 
July 23, 2024

Any person against whom a protective order is issued shall be assessed costs of twenty-five dollars. Such costs shall be paid to the family court fund established pursuant to section twenty-two, article two-a, chapter fifty-one of this code.


48-27-509. Conditions of visitation in cases involving domestic violence

Updated: 
July 23, 2024

(a) A court may award visitation of a child by a parent who has committed domestic violence only if the court finds that adequate provision for the safety of the child and the petitioner can be made.

(b) In a visitation order, a court may:

(1) Order an exchange of a child to occur in a protected setting;

(2) Order that supervision be provided by another person or agency;

(3) Order the perpetrator of domestic violence to attend and complete, to the satisfaction of the court, a program of intervention for perpetrators as a condition of the visitation;

(4) Order the perpetrator of domestic violence to abstain from possession or consumption of alcohol or controlled substances during the visitation and for the twelve hours that precede the visitation;

(5) Order the perpetrator of domestic violence to pay the costs of supervised visitation, if any;

(6) Prohibit overnight visitation;

(7) Impose any other condition that the court considers necessary to provide for the safety of the child, the petitioner or any other family or household member.

(c) Regardless of whether visitation is allowed, the court may order that the address of the child and the petitioner be kept confidential.

(d) If a court allows a family or household member to supervise visitation, the court shall establish conditions to be followed during visitation.

48-27-510. Appeals

Updated: 
July 23, 2024

(a) A petitioner who has been denied an emergency protective order may file a petition for appeal of the denial, within five days of the denial, to the family court.

(b) Any party who alleges that he or she will be adversely affected or aggrieved by a final protective order, or the denial or dismissal of a petition for a protective order, may file a petition for appeal with the circuit court within ten days of the entry of the order by the family court. The order shall remain in effect pending an appeal unless stayed by order of the family court sua sponte or upon motion of a party, or by order of the circuit court upon motion of a party. No bond shall be required for any appeal under this section.

(c) A petition for appeal filed pursuant to this section shall be heard by the court within ten days from the filing of the petition.

(d) The standard of review of findings of fact made by the family court is clearly erroneous and the standard of review of application of the law to the facts is an abuse of discretion standard.


48-27-511. Purging of domestic violence files

Updated: 
July 23, 2024

Two years after the entry of a final protective order, the circuit court, may, upon motion, order that the protective order and references to the order be purged from the file maintained by any law-enforcement agency and may further order that the file maintained by the court be sealed and not opened except upon order of the court when such is in the interest of justice.


Part 6. Disposition of Domestic Violence Orders

Updated: 
July 23, 2024

48-27-601. Filing of orders with law-enforcement agency; affidavit as to award of possession of real property; service of order on respondent

Updated: 
July 23, 2024

(a) Upon entry of an order pursuant to section 27-403 or part 27-501, et seq., or an order entered pursuant to part 5-501, et seq., granting relief provided for by this article, a copy of the order shall be immediately transmitted electronically by the court or the clerk of the court to the domestic violence database established pursuant to the provisions of section twenty-one, article one, chapter fifty-one of this code. No later than the close of the next business day the court or the clerk of the court shall transmit the order to a local office of the municipal police, the county sheriff and the West Virginia State Police for service upon the respondent named in the order. The law-enforcement agency or agencies to which a copy of the order is supplied are not required to maintain a copy of the order after the respondent is served.

(b) A sworn affidavit may be executed by a party who has been awarded exclusive possession of the residence or household, pursuant to an order entered pursuant to section 27-503, and shall be delivered to law-enforcement agencies simultaneously with any order giving the party’s consent for a law-enforcement officer to enter the residence or household, without a warrant, to enforce the protective order or temporary order.

(c) Orders shall be promptly served upon the respondent. Failure to serve a protective order on the respondent does not stay the effect of a valid order if the respondent has actual notice of the existence and contents of the order.

(d) Any law-enforcement agency in this state in possession of or with notice of the existence of an order issued pursuant to the provisions of sections 27-403 or 27-501 of this article or the provisions of section 5-509 of this chapter which is in effect or has been expired for thirty days or less that receives a report that a person protected by an order has been reported to be missing shall immediately follow its procedures for investigating missing persons. No agency or department policy delaying the beginning of an investigation has any force or effect.

(e) The provisions of subsection (d) of this section shall be applied where a report of a missing person is made which is accompanied by a sworn affidavit that the person alleged to be missing was, at the time of his or her alleged disappearance, being subjected to treatment which meets the definition of domestic battery or assault set forth in section twenty-eight, article two, chapter sixty-one of this code.

Part 7. Law Enforcement Response to Domestic Violence

Updated: 
July 23, 2024

48-27-701. Service of pleadings and orders by law-enforcement officers

Updated: 
July 23, 2024

Notwithstanding any other provision of this code to the contrary, all law-enforcement officers are hereby authorized to serve all pleadings and orders filed or entered pursuant to this article on Sundays and legal holidays. No law-enforcement officer shall refuse to serve any pleadings or orders entered pursuant to this article. Law enforcement shall attempt to serve all protective orders without delay: Provided, That service of process shall be attempted within seventy-two hours of law enforcement’s receipt of the order to every address provided by petitioner. Any law-enforcement agency that serves pleadings or orders pursuant to this section may receive the fee authorized therefor by Rule 4 of the Rules of Practice and Procedure for Domestic Violence Civil Proceedings. If service is not made, law enforcement shall continue to attempt service on the respondent until proper service is made.

48-27-702. Law-enforcement officers to provide information, transportation and to report suspicions of animal cruelty

Updated: 
July 23, 2024

(a) Any law-enforcement officer responding to an alleged incident of domestic violence shall inform the parties of the availability of the possible remedies provided by this article and the possible applicability of the criminal laws of this state. Any law-enforcement officer investigating an alleged incident of domestic violence shall advise the victim of such violence of the availability of the family protection shelter to which such person may be admitted.

(b) If there is reasonable cause to believe that a person is a victim of domestic violence or is likely to be a victim of domestic violence, a law-enforcement officer responding to an alleged incident of domestic violence shall, in addition to providing the information required in subsection (a) of this section, provide transportation for or facilitate transportation of the victim, upon the request of such victim, to a shelter or an appropriate court.

(c) Whenever a law-enforcement officer, pursuant to a response to an alleged incident of domestic violence, forms a reasonable suspicion that an animal is a victim of cruel or inhumane treatment, he or she shall report the suspicion and the grounds therefor to the county humane officer within twenty-four hours of the response to the alleged incident of domestic violence.


Part 8. Record-keeping by Law Enforcement Officers

Updated: 
July 23, 2024

48-27-801. Reports of domestic violence to state police

Updated: 
July 23, 2024

(a) Each law-enforcement agency shall maintain records on all incidents of domestic violence reported to it and shall monthly make and deliver to the West Virginia state police a report on a form prescribed by the state police, listing all such incidents of domestic violence. Such reports shall include:

(1) The age and sex of the victim and the perpetrator of domestic violence;

(2) The relationship between the parties;

(3) The type and extent of abuse;

(4) The number and type of weapons involved;

(5) Whether the law-enforcement agency responded to the complaint and if so, the time involved, the action taken and the time lapse between the agency’s action and the victim’s request for assistance;

(6) Whether any prior reports have been made, received or filed regarding domestic violence on any prior occasion and if so, the number of such prior reports; and

(7) The effective dates and terms of any protective order issued prior to or following the incident to protect the victim: Provided, That no information which will permit the identification of the parties involved in any incident of domestic violence shall be included in such report.

(b) The West Virginia state police shall tabulate and analyze any statistical data derived from the reports made by law-enforcement agencies pursuant to this section and publish a statistical compilation in its annual uniform crime report, as provided for in section twenty-four, article two, chapter fifteen of this code. The statistical compilation shall include, but is not limited to, the following:

(1) The number of domestic violence complaints received;

(2) The number of complaints investigated;

(3) The number of complaints received from alleged victims of each sex;

(4) The average time lapse in responding to such complaints;

(5) The number of complaints received from alleged victims who have filed such complaints on prior occasions;

(6) The number of aggravated assaults and homicides resulting from such repeat incidents;

(7) The type of police action taken in disposition of the cases; and

(8) The number of alleged violations of protective orders.


48-27-802. Maintenance of registry by state police

Updated: 
July 23, 2024

(a) The West Virginia State Police shall maintain a registry in which it shall enter certified copies of protective orders entered by courts from every county in this state pursuant to the provisions of this article and of protection orders issued by a jurisdiction outside of this state pursuant to its law: Provided, That the provisions of this subsection are not effective until a central automated state law-enforcement information system is developed.

(b) Effective January 2, 2010, a court which enters a protective order pursuant to this article shall immediately register such order in the domestic violence database established pursuant to the provisions of section twenty-one, article one, chapter fifty-one of this code. A protected individual who obtains a protection order from a jurisdiction outside of this State pursuant to its law or his or her representative as provided in section five, article twenty-eight of this chapter may register that order with the West Virginia Supreme Court of Appeals for entry in the domestic violence database established pursuant to the provisions of section twenty-one, article one, chapter fifty-one of this code.

(c) Failure to register an order as provided in this section shall not affect its enforceability in any county or jurisdiction.


Part 9. Sanctions

Updated: 
July 23, 2024

48-27-901. Civil contempt; violation of protective orders; order to show cause

Updated: 
July 23, 2024

(a) Any party to a protective order or a legal guardian or guardian ad litem may file a petition for civil contempt alleging a violation of an order issued pursuant to the provisions of this article. The petition shall be filed in the family court, if a family court entered an order or in the circuit court, if a circuit court entered the order, in the county in which the violation occurred or the county in which the order was issued.

(b) When a petition for an order to show cause is filed, a hearing on the petition shall be held within five days from the filing of the petition. Any order to show cause which is issued shall be served upon the alleged violator.

(c) Upon a finding of contempt, the court may order the violator to comply with specific provisions of the protective order and post a bond as surety for faithful compliance with the order. The bond may not be a personal recognizance bond and shall be in an amount that does not exceed the ability of the violator to post. The bond may not be waived by a fee waiver pursuant to the provisions of section one, article two, chapter fifty-nine of this code.


48-27-902. Violations of protective orders; criminal complaints

Updated: 
July 23, 2024

(a) Any person authorized to file a petition pursuant to section three hundred five of this article, and any person authorized to file a petition for civil contempt pursuant to section nine hundred one of this article may file a criminal complaint:

(1) Against a respondent who knowingly and willfully violates a provision of an emergency or final protective order entered pursuant to:

(A) subsection (a) or (b) of section five hundred two of this article;

(B) if the court has ordered such relief; subsection (2), (7) or (9) of section five hundred three of this article;

(C) subsection (b) or (c) of section five hundred nine, article five of this chapter; or

(D) subsection (b) or (c) of section six hundred eight, article five of this chapter;.

(2) Against a person who violates a condition of bail, probation or parole which has the express intent or effect of protecting the personal safety of a particular person or persons;

(3) Against a respondent who knowingly and willfully violates the terms of a protection order from another jurisdiction that is required to be enforced pursuant to section three, article twenty-eight of this chapter; or

(4) Against a person who, in violation of subdivision (3), subsection (a), section seven, article twenty-eight of this chapter, knowingly and willfully violates the terms of a condition of bail, probation or parole imposed in another state which has the express intent or effect of protecting the personal safety of a particular person or persons.

(b) If the court finds probable cause upon the complaint, the court shall issue a warrant for the arrest of the person charged.

48-27-903. Misdemeanor offenses for violation of protective order; repeat offenses; penalties

Updated: 
July 23, 2024

(a) A person is guilty of a misdemeanor if the person knowingly and willfully violates:

(1) A provision of an emergency or final protective order entered pursuant to:

(A) Subsection (a) or (b) of section five hundred two of this article;

(B) If the court has ordered such relief; subsection (2), (7), (9) or (14) of section five hundred three of this article;

(C) Subsection (b) or (c) of section five hundred nine, article five of this chapter; or

(D) Subsection (b) or (c) of section six hundred eight, article five of this chapter;

(2) A condition of bail, probation or parole which has the express intent or effect of protecting the personal safety of a particular person or persons; or

(3) A restraining order entered pursuant to section nine-a, article two, chapter sixty-one of this code.

Upon conviction thereof the person shall be confined in jail for a period of not less than one day nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than $250 nor more than $2,000.

(b) Any person who is convicted of a second offense under subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than three months nor more than one year, which jail term shall include actual confinement of not less than thirty days, and fined not less than $500 nor more than $3,000.

(c) A respondent who is convicted of a third or subsequent offense under subsection (a) when the violation occurs within ten years of a prior conviction of this offense is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not less than six months nor more than one year, which jail term shall include actual confinement of not less than six months, and fined not less than $500 nor more than $4,000.

Part 10. Arrests

Updated: 
July 23, 2024

48-27-1001. Arrest for violations of protective orders

Updated: 
July 23, 2024

(a) When a law-enforcement officer observes any respondent abuse the petitioner or minor children or the respondent’s physical presence at any location in knowing and willful violation of the terms of an emergency or final protective order issued under the provisions of this article or section 5-509 or 5-608 of this chapter granting the relief pursuant to the provisions of this article, in knowing and willful violation of the terms of a protection order from another jurisdiction that is required to be enforced pursuant to section four, article twenty-eight of this chapter, he or she shall immediately arrest the respondent.

(b) When a family or household member is alleged to have committed a violation of the provisions of section 27-903 or 28-7, a law-enforcement officer may arrest the perpetrator for said offense where:

(1) The law-enforcement officer has observed credible corroborative evidence, as defined in subsection 27-1002(b), that the offense has occurred; and

(2) The law-enforcement officer has received, from the victim or a witness, a verbal or written allegation of the facts constituting a violation of section 27-903; or

(3) The law-enforcement officer has observed credible evidence that the accused committed the offense.

(c) Any person who observes a violation of a protective order as described in this section, or the victim of such abuse or unlawful presence, may call a local law-enforcement agency, which shall verify the existence of a current order, and shall direct a law-enforcement officer to promptly investigate the alleged violation.

(d) Where there is an arrest, the officer shall take the arrested person before a circuit court or a magistrate and, upon a finding of probable cause to believe a violation of an order as set forth in this section has occurred, the court or magistrate shall set a time and place for a hearing in accordance with the West Virginia rules of criminal procedure.

48-27-1002. Arrest in domestic violence matters; conditions

Updated: 
July 23, 2024

(a) Notwithstanding any provision of this code to the contrary, if a person is alleged to have committed a violation of the provisions of subsection (a) or (b), section twenty-eight, article two, chapter sixty-one of this code against a family or household member, in addition to any other authority to arrest granted by this code, a law-enforcement officer has authority to arrest that person without first obtaining a warrant if:

(1) The law-enforcement officer has observed credible corroborative evidence that an offense has occurred; and either:

(2) The law-enforcement officer has received, from the victim or a witness, an oral or written allegation of facts constituting a violation of section twenty-eight, article two, chapter sixty-one of this code; or

(3) The law-enforcement officer has observed credible evidence that the accused committed the offense.

(b) For purposes of this section, credible corroborative evidence means evidence that is worthy of belief and corresponds to the allegations of one or more elements of the offense and may include, but is not limited to, the following:

(1) Condition of the alleged victim. – One or more contusions, scratches, cuts, abrasions, or swellings; missing hair; torn clothing or clothing in disarray consistent with a struggle; observable difficulty in breathing or breathlessness consistent with the effects of choking or a body blow; observable difficulty in movement consistent with the effects of a body blow or other unlawful physical contact.

(2) Condition of the accused. – Physical injury or other conditions similar to those set out for the condition of the victim which are consistent with the alleged offense or alleged acts of self-defense by the victim.

(3) Condition of the scene. – Damaged premises or furnishings; disarray or misplaced objects consistent with the effects of a struggle.

(4) Other conditions. – Statements by the accused admitting one or more elements of the offense; threats made by the accused in the presence of an officer; audible evidence of a disturbance heard by the dispatcher or other agent receiving the request for police assistance; written statements by witnesses.

(c) Whenever any person is arrested pursuant to subsection (a) of this section, the arrested person shall be taken before a magistrate within the county in which the offense charged is alleged to have been committed in a manner consistent with the provisions of Rule 1 of the Administrative Rules for the Magistrate Courts of West Virginia.

(d) If an arrest for a violation of subsection (c), section twenty-eight, article two, chapter sixty-one of this code is authorized pursuant to this section, that fact constitutes prima facie evidence that the accused constitutes a threat or danger to the victim or other family or household members for the purpose of setting conditions of bail pursuant to section seventeen-c, article one-c, chapter sixty-two of this code.

(e) Whenever any person is arrested pursuant to the provisions of this article or for a violation of an order issued pursuant to section five hundred nine or subsections (b) and (c), of section six hundred eight, article five of this chapter the arresting officer, subject to the requirements of the Constitutions of this state and of the United States:

(1) Shall seize all weapons that are alleged to have been involved or threatened to be used in the commission of domestic violence;

(2) May seize a weapon that is in plain view of the officer or was discovered pursuant to a consensual search, as necessary for the protection of the officer or other persons; and

(3) May seize all weapons that are possessed in violation of a valid protective order.


Part 11. Miscellaneous Provisions

Updated: 
July 23, 2024

48-27-1101. Forms to be provided; operative date

Updated: 
July 23, 2024

(a) Pleadings, practice and procedure in domestic violence matters before the court are governed by the rules of practice and procedure for domestic violence civil proceedings promulgated by the West Virginia Supreme Court of Appeals.

(b) The West Virginia Supreme Court of Appeals shall prescribe forms which are necessary and convenient for proceedings pursuant to this article and the court shall distribute such forms to the clerk of the circuit court, the secretary-clerk of the family court and the clerk of magistrate court of each county within the state.

48-27-1102. Authorization for the promulgation of legislative rules

Updated: 
July 23, 2024

The governor’s committee on crime, delinquency and correction shall develop and promulgate rules for state, county and municipal law-enforcement officers, law-enforcement agencies and communications and emergency operations centers which dispatch law-enforcement officers with regard to domestic violence: Provided, That such rules and procedures must be consistent with the priority criteria prescribed by generally applicable department procedures. Prior to the publication of proposed rules, the governor’s committee on crime, delinquency and correction shall convene a meeting or meetings of an advisory committee to assist in the development of the rules. The advisory committee shall be composed of persons invited by the committee to represent state, county and local law-enforcement agencies and officers, to represent magistrates and court officials, to represent victims of domestic violence, to represent shelters receiving funding pursuant to article 26-101, et seq. of this chapter, to represent communications and emergency operations centers that dispatch law-enforcement officers and to represent other persons or organizations who, in the discretion of the committee, have an interest in the rules. The rules and the revisions thereof as provided in this section shall be promulgated as legislative rules in accordance with chapter twenty-nine-a of this code. The committee shall meet at least annually to review the rules and to propose revisions as a result of changes in law or policy.

48-27-1103. Training of law-enforcement officers in domestic violence

Updated: 
July 23, 2024

All law-enforcement officers shall receive training relating to response to calls involving domestic violence.


48-27-1104. Judicial education on domestic violence

Updated: 
July 23, 2024

All circuit court judges may and magistrates and family courts shall receive a minimum of three hours training each year on domestic violence which shall include training on the psychology of domestic violence, the battered wife and child syndromes, sexual abuse, courtroom treatment of victims, offenders and witnesses, available sanctions and treatment standards for offenders, and available shelter and support services for victims. The supreme court of appeals may provide such training in conjunction with other judicial education programs offered by the supreme court.

48-27-1105. Rule for time-keeping requirements

Updated: 
July 23, 2024

The supreme court of appeals shall promulgate a procedural rule to establish time-keeping requirements for magistrates, magistrate court clerks and magistrate assistants so as to assure the maximum funding of incentive payments, grants and other funding sources available to the state for the processing of cases filed for the establishment of temporary orders of child support pursuant to the provisions of this article.

Article 28. Uniform Interstate Enforcement of Domestic Violence Protection Orders Act

Updated: 
July 23, 2024

48-28-3. Judicial enforcement of order

Updated: 
July 23, 2024

(a) A person authorized by the law of this state to seek enforcement of a West Virginia protective order may seek enforcement of a valid foreign protection order in a court of this state. The court shall enforce the terms of the order, including terms that provide relief that a court of this state would lack power to provide but for this section. The court shall enforce the order, whether the order was obtained by independent action or in another proceeding, if it was issued in response to a complaint, petition or motion filed by or on behalf of an individual seeking protection. In a proceeding to enforce a foreign protection order, the court shall follow the procedures of this state for the enforcement of West Virginia protective orders.

(b) A court of this state may not enforce a foreign protection order issued by a tribunal of a state that does not recognize the standing of a protected individual to seek enforcement of the order.

(c) A court of this state shall enforce the provisions of a valid foreign protection order which govern custody and visitation if the order was issued in accordance with the jurisdictional requirements governing the issuance of custody and visitation orders in the issuing state or under federal law and with the requirements set out in subsection (d) of this section.

(d) A foreign protection order is valid if it:

(1) Identifies the protected individual and the respondent;

(2) Is currently in effect;

(3) Was issued by a tribunal that had jurisdiction over the parties and subject matter under the law of the issuing state; and

(4) Was issued after the respondent was given reasonable notice and had an opportunity to be heard before the tribunal issued the order or, in the case of an order ex parte, the respondent was given notice and has had or will have an opportunity to be heard within a reasonable time after the order was issued in a manner consistent with the respondent’s rights to due process of law.

(e) A foreign protection order which appears authentic on its face is presumed to be valid.

(f) Absence of any of the criteria for validity of a foreign protection order is an affirmative defense in an action seeking enforcement of the order.

(g) A court of this state may enforce provisions of a mutual foreign protection order which favor a respondent only if:

(1) The respondent filed a written pleading seeking a protection order from the tribunal of the issuing state; and

(2) The tribunal of the issuing state made specific findings in favor of the respondent.

48-28-5. Registration of order

Updated: 
July 23, 2024

(a) Any individual may register a foreign protection order in this state by:

Presenting a certified copy of the order to the West Virginia Supreme Court of Appeals for registration in accordance with the provisions of section eight hundred two, article twenty-seven of this chapter.

(b) An individual registering a foreign protection order shall file an affidavit by the protected individual stating that, to the best of the protected individual’s knowledge, the order is currently in effect.

(c) Upon receipt of a foreign protection order for registration, the West Virginia Supreme Court of Appeals shall:

(1) Register the order in accordance with the provisions of this section and of section eight hundred two, article twenty-seven of this chapter;

(2) Furnish to the individual registering the order a copy of the proof of registration of the order.

(d) A registered foreign protection order that is shown to be inaccurate or not currently in effect must be corrected or removed from the registry.

(e) A foreign protection order registered under this article may be entered in any existing state or federal registry of protection orders in accordance with applicable law.

(f) A fee may not be charged for the registration of a foreign protection order.

CREDIT(S)

Article 28b. Uniform Recognition and Enforcement of Canadian Domestic Violence Protective Orders Act

Updated: 
July 23, 2024

48-28B-1. Short Title

Updated: 
July 23, 2024

This article may be cited as the Uniform Recognition and Enforcement of Canadian Domestic-Violence Protective Orders Act.

48-28B-2. Definitions

Updated: 
July 23, 2024

“Canadian domestic violence protective order” means a judgment or part of a judgment or order issued in a civil proceeding by a court of Canada under law of the issuing jurisdiction which relates to domestic violence and prohibits a respondent from:
 

(1) Being in physical proximity to a protected individual or following a protected individual;
 

(2) Directly or indirectly contacting or communicating with a protected individual or other individual described in the order;
 

(3) Being within a certain distance of a specified place or location associated with a protected individual; or
 

(4) Molesting, annoying, harassing, or engaging in threatening conduct directed at a protected individual.
 

“Domestic violence protective order” means an injunction or other order issued by a court which relates to domestic or family violence laws to prevent an individual from engaging in violent or threatening acts against, harassment of, direct or indirect contact or communication with, or being in physical proximity to another individual.
 

“Issuing court” means the court that issues a Canadian domestic violence protective order.
 

“Law-enforcement officer” means an individual authorized by law of this state to enforce a domestic protective order.
 

“Person” means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.
 

“Protected individual” means an individual protected by a Canadian domestic- violence protective order.
 

“Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
 

“Respondent” means an individual against whom a Canadian domestic-violence protective order is issued.
 

“State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes a federally recognized Indian tribe.
 

“Court” means a court, agency, or other entity authorized by law of this state to establish, enforce, or modify a domestic protective order.

48-28B-3. Enforcement of Canadian Domestic Violence Protective Order by Law Enforcement Officer

Updated: 
July 23, 2024

(a) If a law-enforcement officer determines under subsection (b) or (c) of this section that there is probable cause to believe a valid Canadian domestic violence protective order exists and the order has been violated, the officer shall enforce the terms of the Canadian domestic violence protective order as if the terms were in an order of a court. Presentation to a law-enforcement officer of a certified copy of a Canadian domestic violence protective order is not required for enforcement.
 

(b) Presentation to a law-enforcement officer of a record of a Canadian domestic violence protective order that identifies both a protected individual and a respondent and on its face is in effect constitutes probable cause to believe that a valid order exists.
 

(c) If a record of a Canadian domestic violence protective order is not presented as provided in subsection (b) of this section, a law-enforcement officer may consider other information in determining whether there is probable cause to believe that a valid Canadian domestic-violence protective order exists.
 

(d) If a law enforcement officer determines that an otherwise valid Canadian domestic violence protective order cannot be enforced because the respondent has not been notified of or served with the order, the officer shall notify the protected individual that the officer will make reasonable efforts to contact the respondent, consistent with the safety of the protected individual. After notice to the protected individual and consistent with the safety of the individual, the officer shall make a reasonable effort to inform the respondent of the order, notify the respondent of the terms of the order, provide a record of the order, if available, to the respondent, and allow the respondent a reasonable opportunity to comply with the order before the officer enforces the order.
 

(e) If a law enforcement officer determines that an individual is a protected individual, the officer shall inform the individual of available local victim services.

48-28B-4. Enforcement of Canadian Domestic Violence Protective Order by Court

Updated: 
July 23, 2024

(a) A court may issue an order enforcing or refusing to enforce a Canadian domestic violence protective order on application of a:
 

(1) Person authorized by law of this state, other than this act, to seek enforcement of a domestic violence protective order; or
 

(2) Respondent.
 

(b) In a proceeding under subsection (a) of this section, the court shall follow the procedures of this state for enforcement of a domestic violence protective order as contained in the West Virginia Rules of Practice and Procedure for Domestic Violence. An order entered under this section is limited to the enforcement of the terms of the Canadian domestic violence protective order as defined in § 48-28B-2 of this code.
 

(c) A Canadian domestic violence protective order is enforceable under this section if:
 

(1) The order identifies a protected individual and a respondent;
 

(2) The order is valid and in effect;
 

(3) The issuing court had jurisdiction over the parties and the subject matter under law applicable in the issuing court;
 

(4) The order was issued on a basis for which a domestic violence protective order would be issued in this state for conduct that would constitute domestic violence under this code; and
 

(5) The order was issued after:
 

(A) The respondent was given reasonable notice and had an opportunity to be heard before the court issued the order; or
 

(B) In the case of an ex parte order, the respondent was given reasonable notice and had or will have an opportunity to be heard within a reasonable time after the order was issued, in a manner consistent with the right of the respondent to due process.
 

(d) A Canadian domestic violence protective order valid on its face is prima facie evidence of its enforceability under this article.
 

(e) A claim that a Canadian domestic violence protective order does not comply with subsection (c) of this section is an affirmative defense in a proceeding seeking enforcement of the order. If the court determines that the order is not enforceable, the court shall issue an order that the Canadian domestic violence protective order is not enforceable under this section, and § 48-28B-3 of this code, and may not be registered pursuant to the requirements of § 48-28B-5 of this code.
 

(f) This section applies to enforcement of a provision of a Canadian domestic violence protective order against a party to the order in which each party is a protected individual and respondent only if:
 

(1) The party seeking enforcement of the order filed a pleading requesting the order from the issuing court; and
 

(2) The court made specific findings that entitled the party to the enforcement sought.

48-28B-5. Registration of a Canadian Domestic Violence Protective Order

Updated: 
July 23, 2024

(a) Any individual may register a Canadian domestic violence protective order in this State by presenting a certified copy of the order to the West Virginia Supreme Court of Appeals for registration in accordance with § 48-27-802 of this code.
 

(b) An individual registering a Canadian domestic violence protective order shall file an affidavit by the protected individual stating that, to the best of the protected individual’s knowledge, the order is currently in effect.
 

(c) Upon receipt of a Canadian domestic violence protective order for registration, the West Virginia Supreme Court of Appeals shall:
 

(1) Register the order in accordance with § 48-27-802 of this code; and
 

(2) Furnish to the individual registering the order a copy of the proof of registration of the order.
 

(d) A registered Canadian domestic violence protective order that is shown to be inaccurate or not currently in effect shall be corrected or removed from the registry.
 

(e) A Canadian domestic violence protective order registered under this article may be entered in any existing state or federal registry of protection orders in accordance with applicable law.
 

(f) A fee may not be charged for the registration of a Canadian domestic violence protective order.

Chapter 50. Magistrate Courts

Updated: 
July 23, 2024

Article 2. Jurisdiction and Authority

Updated: 
July 23, 2024

50-2-1. Civil jurisdiction

Updated: 
July 23, 2024

Except as limited herein and in addition to jurisdiction granted elsewhere to magistrate courts, such courts shall have jurisdiction of all civil actions wherein the value or amount in controversy or the value of property sought, exclusive of interest and cost, is not more than $10,000. Magistrate courts shall have jurisdiction of all matters involving unlawful entry or detainer of real property or involving wrongful occupation of residential rental property, so long as the title to such property is not in dispute. Except as the same may be in conflict with the provisions of this chapter, the provisions of article three, chapter fifty-five of this code, regarding unlawful entry and detainer, shall apply to such actions in magistrate court. Magistrate courts shall have jurisdiction of actions on bonds given pursuant to the provisions of this chapter. Magistrate courts shall have continuing jurisdiction to entertain motions in regard to post-judgment process issued from magistrate court and decisions thereon may be appealed in the same manner as judgments.

Magistrate courts do not have jurisdiction of actions in equity, of matters in eminent domain, of matters in which the title to real estate is in issue, of proceedings seeking satisfaction of liens through the sale of real estate, of actions for false imprisonment, of actions for malicious prosecution or of actions for slander or libel or of any of the extraordinary remedies set forth in chapter fifty-three of this code.

Magistrates, magistrate court clerks, magistrate court deputy clerks and magistrate assistants shall have the authority to administer any oath or affirmation, to take any affidavit or deposition, unless otherwise expressly provided by law, and to take, under such regulations as are prescribed by law, the acknowledgment of deeds and other writings.

Chapter 53. Extraordinary Remedies

Updated: 
July 23, 2024

Article 8. Personal Safety Orders

Updated: 
July 23, 2024

53-8-1. Definitions

Updated: 
July 23, 2024

In this article the following words have the meanings indicated.
 

(1) Final personal safety order. – “Final personal safety order” means a personal safety order issued by a magistrate under section seven of this article.
 

(2) Incapacitated adult. – “Incapacitated adult” means any person who by reason of physical, mental or other infirmity is unable to physically carry on the daily activities of life necessary to sustaining life and reasonable health.
 

(3) Law-enforcement officer. – “Law-enforcement officer” means any duly authorized member of a law-enforcement agency who is authorized to maintain public personal safety and order, prevent and detect crime, make arrests and enforce the laws of the state or any county or municipality thereof, other than parking ordinances.
 

(4) Petitioner. – “Petitioner” means an individual who files a petition under section four of this article.
 

(5) Place of employment. – “Place of employment” includes the grounds, parking areas, outbuildings and common or public areas in or surrounding the place of employment.
 

(6) Residence. – “Residence” includes the yard, grounds, outbuildings and common or public areas in or surrounding the residence.
 

(7) Respondent. – “Respondent” means an individual alleged in a petition to have committed an act specified in subsection (a), section four of this article against a petitioner.
 

(8) School. – “School” means an educational facility comprised of one or more buildings, including school grounds, a school bus or any school-sponsored function or extracurricular activities. For the purpose of this subdivision, “school grounds” includes the land on which a school is built together with such other land used by students for play, recreation or athletic events while attending school. “Extracurricular activities” means voluntary activities sponsored by a school, a county board or an organization sanctioned by a county board or the State Board of Education and include, but are not limited to, preparation for and involvement in public performances, contests, athletic competitions, demonstrations, displays, organizations and clubs.
 

(9) Sexual offense. – “Sexual offense” means the commission of any of the following sections:
 

(A) Section nine, article eight, chapter sixty-one of this code;
 

(B) Section twelve, article eight, chapter sixty-one of this code;
 

(C) Section two, article eight-a, chapter sixty-one of this code;
 

(D) Section four, article eight-a, chapter sixty-one of this code;
 

(E) Section five, article eight-a, chapter sixty-one of this code;
 

(F) Section three, article eight-b, chapter sixty-one of this code;
 

(G) Section four, article eight-b, chapter sixty-one of this code;
 

(H) Section five, article eight-b, chapter sixty-one of this code;
 

(I) Section seven, article eight-b, chapter sixty-one of this code;
 

(J) Section eight, article eight-b, chapter sixty-one of this code;
 

(K) Section nine, article eight-b, chapter sixty-one of this code;
 

(L) Section two, article eight-c, chapter sixty-one of this code;
 

(M) Section three, article eight-c, chapter sixty-one of this code;
 

(N) Section three-a, article eight-d, chapter sixty-one of this code;
 

(O) Section five, article eight-d, chapter sixty-one of this code; and
 

(P) Section six, article eight-d, chapter sixty-one of this code.
 

(10) Temporary personal safety order. – “Temporary personal safety order” means a personal safety order issued by a magistrate under section five of this article.

53-8-4. Petition seeking relief

Updated: 
July 23, 2024

(a) Underlying acts. – A petitioner may seek relief under this article by filing with a magistrate court a petition that alleges the commission of any of the following acts against the petitioner by the respondent:
 

(1) A sexual offense or attempted sexual offense as defined in section one of this article;
 

(2) A violation of subsection (a), section nine-a, article two, chapter sixty-one of this code; or
 

(3) repeated credible threats of bodily injury when the person making the threats knows or has reason to know that the threats cause another person to reasonably fear for his or her safety.
 

(b) Contents. –
 

The petition shall:
 

(1) Be verified and provide notice to the petitioner that an individual who knowingly provides false information in the petition is guilty of a misdemeanor and, on conviction, is subject to the penalties specified in subsection (d) of this section;
 

(2) Subject to the provisions of subsection (c) of this section, contain the address of the petitioner; and
 

(3) Include all information known to the petitioner of:
 

(A) The nature and extent of the act specified in subsection (a) of this section for which the relief is being sought, including information known to the petitioner concerning previous harm or injury resulting from an act specified in subsection (a) of this section by the respondent;
 

(B) Each previous and pending action between the parties in any court; and
 

(C) The whereabouts of the respondent.
 

(c) Address may be stricken. – If, in a proceeding under this article, a petitioner alleges, and the court finds, that the disclosure of the address of the petitioner would risk further harm to the petitioner or a member of the petitioner’s household, that address may be stricken from the petition and omitted from all other documents filed with, or transferred to, a court.
 

(d) Providing false information. – An individual who knowingly provides false information in a petition filed under this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $1,000 or confined in jail not more than ninety days, or both.
 

(e) Withdrawal or dismissal of a petition prior to adjudication operates as a dismissal without prejudice. – No action for a personal safety order may be dismissed because the respondent is being prosecuted for a crime against the petitioner. For any action commenced under this article, dismissal of a case or a finding of not guilty, does not require dismissal of the action for a civil protection order.
 

(f) Venue. – The action may be heard in the county in which any underlying act occurred for which relief is sought in the petition, in the county in which the respondent is living, or in the county in which the petitioner is living, either temporarily or permanently.

53-8-5. Temporary personal safety orders

Updated: 
July 23, 2024

(a) Authorized; forms of relief available. –
 

(1) If after a hearing on a petition, whether ex parte or otherwise, a magistrate finds that there is reasonable cause to believe that the respondent has committed an act specified in subsection (a), section four of this article, against the petitioner, the magistrate shall issue a temporary personal safety order to protect the petitioner.
 

(2) The temporary personal safety order may include any or all of the following relief:
 

(A) Order the respondent to refrain from committing or threatening to commit an act specified in subsection (a), section four of this article against the petitioner;
 

(B) Order the respondent to refrain from contacting, attempting to contact or harassing the petitioner directly, indirectly or through third parties regardless of whether those third parties know of the order;
 

(C) Order the respondent to refrain from entering the residence of the petitioner;
 

(D) Order the respondent to remain away from the place of employment, school or residence of the petitioner: Provided, That when the respondent is alleged to have committed an act specified in subdivision (2), subsection (a), section four of this article, the magistrate may not prohibit the respondent from entering the respondent’s place of employment;
 

(E) Order the respondent not to visit, assault, molest or otherwise interfere with the petitioner and, if the petitioner is a child, the petitioner’s siblings and minors residing in the household of the petitioner;
 

(F) The court, in its discretion, may prohibit a respondent from possessing a firearm as defined in section seven, article seven, chapter sixty-one of this code if:
 

(i) A weapon was used or threatened to be used in the commission of the offense predicating the petitioning for the personal safety order;
 

(ii) The respondent has violated any prior order as specified under this article; or
 

(iii) The respondent has been convicted of an offense involving the use of a firearm;
 

(G) Order either party to pay filing fees and costs of a proceeding pursuant to section thirteen of this article.
 

(3) If the magistrate issues an order under this section, the order shall contain only the relief necessary to protect the petitioner.
 

(b) Immediate. – The temporary personal safety order shall be immediately served on the respondent by law enforcement, or at the option of the petitioner, pursuant to rules promulgated pursuant to section fifteen of this article.
 

(c) Length of effectiveness. –
 

(1) The temporary personal safety order shall be effective for not more than ten days after service of the order.
 

(2) The magistrate may extend the temporary personal safety order to effectuate service of the order or for other good cause. The failure to obtain service upon the respondent does not constitute a basis to dismiss the petition.
 

(d) Final personal safety order hearing. – The magistrate may proceed with a final personal safety order hearing instead of a temporary personal safety order hearing if:
 

(1)(A) The respondent appears at the hearing; or
 

(B) The court otherwise has personal jurisdiction over the respondent; and
 

(2) The petitioner and the respondent expressly consent to waive the temporary personal safety order hearing.

53-8-7. Personal safety hearing; forms of relief

Updated: 
July 23, 2024

(a) Final personal safety order hearing. –
 

Proceeding; issuance of order. – If the respondent appears for the final personal safety order hearing, has been served with a temporary personal safety order or the respondent waives personal service, the magistrate:
 

(1) May proceed with the final personal safety order hearing; and
 

(2) May issue a final personal safety order to protect the petitioner if the court finds by a preponderance of the evidence that:
 

(A)(i) The respondent has committed an act specified in subsection (a), section four of this article against the petitioner; and
 

(ii) The petitioner has a reasonable apprehension of continued unwanted or unwelcome contacts by the respondent; or
 

(B) The respondent consents to the entry of a personal safety order.
 

(b) A final personal safety order may be issued only to an individual who has filed a petition or on whose behalf a petition was filed under section three of this article.
 

(c) In cases where both parties file a petition under section four of this article, the court may issue mutual personal safety orders if the court finds by a preponderance of the evidence that:
 

(1) Each party has committed an act specified in subsection (a), section four of this article against the other party; and
 

(2) Each party has a reasonable apprehension of continued unwanted or unwelcome contacts by the other party.
 

(d) Personal safety order – Forms of relief. –
 

(1) The final personal safety order may include any or all of the following relief:
 

(A) Order the respondent to refrain from committing or threatening to commit an act specified in subsection (a), section four of this article against the petitioner;
 

(B) Order the respondent to refrain from contacting, attempting to contact or harassing the petitioner directly, indirectly, or through third parties regardless of whether those third parties know of the order;
 

(C) Order the respondent to refrain from entering the residence of the petitioner;
 

(D) Order the respondent to remain away from the place of employment, school or residence of the petitioner;
 

(E) Order the respondent not to visit, assault, molest or otherwise interfere with the petitioner and, if the petitioner is a child, the petitioner’s siblings and minors residing in the household of the petitioner;
 

(F) The court, in its discretion, may prohibit a respondent from possessing a firearm as defined in section seven, article seven, chapter sixty-one of this code if:
 

(i) A weapon was used or threatened to be used in the commission of the offense predicating the petitioning for the personal safety order;
 

(ii) The respondent has violated any prior order as specified under this article; or
 

(iii) The respondent has been convicted of an offense involving the use of a firearm; and
 

(G) Order either party to pay filing fees and costs of a proceeding pursuant to section thirteen of this article.
 

(2) If the magistrate issues an order under this section, the order shall contain only the relief necessary to protect the petitioner.
 

(e) Personal safety order – Service. –
 

(1) A copy of the final personal safety order shall be served on the petitioner, the respondent, the appropriate law-enforcement agency and any other person the court determines is appropriate, including a county board of education, in open court or, if the person is not present at the final personal safety order hearing, by first-class mail to the person’s last known address or by other means in the discretion of the court.
 

(2)(A) A copy of the final personal safety order served on the respondent in accordance with subdivision (1) of this subsection or the hearing of the announcement of the court’s ruling in court, constitutes actual notice to the respondent of the contents of the final personal safety order.
 

(B) Service is complete upon mailing.
 

(f) Length of effectiveness. – All relief granted in a final personal safety order shall be effective for the period stated in the order, not to exceed two years.

53-8-8. Modification and rescission

Updated: 
July 23, 2024

(a) A personal safety order may be modified or rescinded during the term of the personal safety order after:
 

(1) Giving notice to the petitioner and the respondent; and
 

(2) A hearing.
 

(b) Modification may include extending the term of the personal safety order if the order was previously issued for a term of less than the two-year maximum term set forth in section seven of this article.

53-8-11. Penalties

Updated: 
July 23, 2024

(a) Fines or incarceration. – An individual who fails to comply with the relief granted in a temporary personal safety order or a final personal safety order entered pursuant to this article is guilty of a misdemeanor and, upon conviction thereof, shall:
 

(1) For a first offense, be fined not more than $1,000 or confined in jail not more than ninety days, or both; and
 

(2) For a second or subsequent offense, be fined not more than $2,500 or confined in jail not more than one year, or both.
 

(b) Arrest. – A law-enforcement officer shall arrest with or without a warrant and take into custody an individual who the officer has probable cause to believe is in violation of a temporary or final personal safety order in effect at the time of the violation.

Chapter 55. Actions, Suits and Arbitration; Judicial Sale

Updated: 
July 23, 2024

Article 7j. Financial Exploitation of an Elderly Person, Protected Person or Incapacitated Adult

Updated: 
July 23, 2024

55-7J-1. Action for financial exploitation of an elderly person, protected person or incapacitated adult; definitions

Updated: 
July 23, 2024

(a) Any elderly person, protected person, or incapacitated adult against whom an act of financial exploitation has been committed may bring an action under this article against any person who has committed an act of financial exploitation against him or her by filing a civil complaint for financial exploitation, a petition for a financial exploitation protective order, or both.

(b) For the purposes of this article:

(1) “Incapacitated adult” has the same meaning as prescribed under § 61-2-29 of this code;

(2) “Elderly person” means a person who is 65 years or older;

(3) “Financial exploitation” or “financially exploit” means the intentional misappropriation or misuse of funds or assets or the diminishment of assets due to undue influence of an elderly person, protected person, or incapacitated adult, but may not apply to a transaction or disposition of funds or assets where the defendant made a good-faith effort to assist the elderly person, protected person, or incapacitated adult with the management of his or her money or other things of value; and

(4) “Protected person” means any person who is defined as a “protected person” in § 44A-1-4 of this code and who is subject to the protections of § 44A-1-1 et seq. or § 44C-1-1 et seq. of this code.

(c) Any person who believes that an elderly person, protected person, or incapacitated adult is suffering financial exploitation due to the intentional misappropriation or misuse of funds or undue influence may bring an action for a protective order pursuant to this section in the magistrate court or circuit court in the county in West Virginia in which the elderly person, protected person, or incapacitated adult resides or the financial exploitation occurred: Provided, That an order granting a financial exploitation protective order to stay further diminution of the assets of an elderly person, protected person, or incapacitated adult shall be temporary in nature.

(d) An action for a financial exploitation protective order brought under this section is commenced by the filing of a verified petition. Temporary relief may be granted without notice to the person alleged to be engaging in financial exploitation and without that person being present: Provided, That notice shall be provided to the person alleged to be engaging in financial exploitation as soon as practicable, and that no final relief may be granted on the petition without a full, adversarial evidentiary hearing on the merits before the court.

(e) If a magistrate court grants the petition for a financial exploitation protective order and issues a temporary financial exploitation protective order, the magistrate court shall immediately transfer the matter to the circuit court of the county in which the petition was filed. Upon receipt of the notice of transfer from the magistrate court, the circuit court shall set the matter for a review hearing within 20 days. Any review hearing shall be a full, adversarial evidentiary hearing on the merits before the court. After a hearing, the circuit court may issue a permanent protective order containing any relief the circuit court determines necessary to protect the alleged victim if the court finds by a preponderance of the evidence that:

(1) The respondent has committed an act against the victim that constitutes financial exploitation; and

(2) There is reasonable cause to believe continued financial exploitation will occur unless relief is granted; or

(3) The respondent consents to entry of the permanent protective order.

(f) An order entered under this section shall state that a violation of the order may result in criminal prosecution under § 61-2-29b of this code and state the penalties therefor.

55-7J-2. Restriction of defenses, standing alone, based on legal relationship

Updated: 
July 23, 2024

Notwithstanding any provision of this code to the contrary, acting in a position of trust and confidence, including, but not limited to, as guardian, conservator, trustee or attorney for or holding power of attorney for an elderly person, protected person or incapacitated adult shall not, standing alone, constitute a defense to an action brought under this article.

55-7J-3. Court authorized remedies

Updated: 
July 23, 2024
(a) In an action brought against a person under this article upon a finding that an elderly person, protected person or incapacitated adult has been financially exploited, the court may order:
(1) The return of property or assets improperly obtained, controlled or used; and
(2) An award of actual damages to the person who brought the action for any damages incurred or for the value of the property or assets lost as a result of the violation or violations of this article.
(b) In addition to the remedies provided in subsection (a) of this section, a court may order the following:
(1) For violations committed by a person who is not in a position of trust and confidence, payment of two times the amount of damages incurred or value of property or assets lost; and
(2) For violations committed by a person in a position of trust and confidence, payment of treble damages.

55-7J-4. Attorneys' fees; court costs and burden of proof; statute of limitations

Updated: 
July 23, 2024

(a) The court may award reasonable attorneys’ fees and costs to a person that brings an action under this article and prevails.

(b) The standard of proof in proving that a person committed financial exploitation in an action pursuant to this article is a preponderance of the evidence.

(c) An action under this article shall be brought within two years from the date of the violation or from the date of discovery, whichever is later in time.

55-7J-5. Action to freeze assets; burden of proof; options the court may exercise

Updated: 
July 23, 2024

(a) An elderly person, protected person, or incapacitated adult may bring an action to enjoin the alleged commission of financial exploitation and may petition the court to freeze the assets of the person allegedly committing the financial exploitation in an amount equal to, but not greater than, the alleged value of lost property or assets for purposes of restoring to the victim the value of the lost property or assets. The burden of proof required to freeze the assets of a person allegedly committing financial exploitation shall be a preponderance of the evidence. Upon a finding that the elderly person, protected person, or incapacitated adult has been formally exploited, the court may:

(1) Grant injunctive relief;

(2) Order the violator to, in escrow an amount of money equivalent to the value of the misappropriated assets for distribution to the aggrieved elderly person, protected person, or incapacitated adult;

(3) Order the violator to return to the elderly person, protected person, or incapacitated person any real or personal property which was misappropriated; or

(4) Provide for the appointment of a receiver.

(b) In an action under § 55-7J-1 of this code, the court may void or limit the application of contracts or clauses resulting from the financial exploitation.

(c) In an action brought under this article, upon the filing of the complaint or on the appearance of any defendant, claimant, or other party, or at any later time, the court may require the plaintiff, defendant, claimant, or other party or parties to post security, or additional security, in a sum the court directs to pay all costs, expenses, and disbursements that are awarded against that party or that the party may be directed to pay by any interlocutory order, by the final judgment or after appeal.

(d) An order entered under this section shall state that a violation of the order may result in criminal prosecution under § 61-2-29b of this code and state the penalties therefor.

55-7J-6. Penalty for violation of injunction; retention of jurisdiction

Updated: 
July 23, 2024

Any person who violates the terms of an order issued under this article shall be subject to proceeding for contempt of court. The court issuing the injunction may retain jurisdiction if, in its discretion, it determines that to do so is in the best interest of the elderly person, protected person, or incapacitated adult. If the court determines that an injunction issued under § 55-7J-5 of this code has been violated, the court may award reasonable costs to the party asserting that a violation has occurred.

Chapter 61. Crimes and their Punishments

Updated: 
July 23, 2024

Article 2. Crimes against the Person

Updated: 
July 23, 2024

61-2-9. Malicious or unlawful assault; assault; battery; penalties

Updated: 
July 23, 2024

(a) If any person maliciously shoots, stabs, cuts or wounds any person, or by any means cause him or her bodily injury with intent to maim, disfigure, disable or kill, he or she, except where it is otherwise provided, is guilty of a felony and, upon conviction thereof, shall be punished by confinement in a state correctional facility not less than two nor more than ten years. If the act is done unlawfully, but not maliciously, with the intent aforesaid, the offender is guilty of a felony and, upon conviction thereof, shall either be imprisoned in a state correctional facility not less than one nor more than five years, or be confined in jail not exceeding twelve months and fined not exceeding $500.
(b) Assault. – Any person who unlawfully attempts to commit a violent injury to the person of another or unlawfully commits an act that places another in reasonable apprehension of immediately receiving a violent injury is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than six months or fined not more than $100, or both fined and confined.
(c) Battery. – Any person who unlawfully and intentionally makes physical contact of an insulting or provoking nature to the person of another or unlawfully and intentionally causes physical harm to another person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than twelve months or fined not more than $500, or both fined and confined.
(d) Any person convicted of a violation of subsection (b) or (c) of this section who has, in the ten years prior to the conviction, been convicted of a violation of either subsection (b) or (c) of this section where the victim was a current or former spouse, current or former sexual or intimate partner, a person with whom the defendant has a child in common, a person with whom the defendant cohabits or has cohabited, a parent or guardian or the defendant’s child or ward at the time of the offense or convicted of a violation of section twenty-eight of this article or has served a period of pretrial diversion for an alleged violation of subsection (b) or (c) of this section or section twenty-eight of this article when the victim has a present or past relationship, upon conviction, is subject to the penalties set forth in section twenty-eight of this article for a second, third or subsequent criminal act of domestic violence offense, as appropriate.

61-2-9a. Stalking, harassment; penalties; definitions

Updated: 
July 23, 2024

(a) Stalking. – Any person who engages in a course of conduct directed at another person with the intent to cause the other person to fear for his or her personal safety, the safety of others, or suffer substantial emotional distress, or causes a third person to so act, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000, confined in jail for not more than six months, or both fined and confined.
 

(b) Harassment. – Any person who harasses, or repeatedly makes credible threats against another is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than six months, or fined not more than $1,000, or both fined and confined.
 

(c) Notwithstanding any provision of this code to the contrary, any person who violates the provisions of subsection (a) or (b) of this section in violation of an order entered by a circuit court, magistrate court, or family court judge, in effect and entered pursuant to § 48-5-501, § 48-5-601, or § 48-27-403 of this code, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than 90 days nor more than one year, or fined not less than $2,000 nor more than $5,000, or both fined and confined.
 

(d) A second or subsequent conviction for a violation of subsection (a) or (b) of this section is a felony punishable by imprisonment in a state correctional facility for not less than one year nor more than five years, or fined not less than $3,000 nor more than $10,000, or both fined and imprisoned.
 

(e) Notwithstanding any provision of this code to the contrary, any person against whom a protective order is in effect for injunctive relief pursuant to the provisions of § 48-5-608 or § 48-27-501 of this code, who has been served with a copy of said order, who commits a violation of the provisions of this section, in which the subject in the protective order is the victim, shall be guilty of a felony and, upon conviction thereof, be imprisoned in a state correctional facility for not less than one year nor more than five years, or fined not less than $3,000 nor more than $10,000, or both fined and imprisoned.
 

(f) Notwithstanding any provision of this code to the contrary, any person against whom a protective order is in effect pursuant to the provisions of § 53-8-7 of this code, who has been previously served with a copy of said order, who commits a violation of the provisions of this section, in which the subject in the protective order is the victim, is guilty of a felony and, upon conviction thereof, punishable by imprisonment in a state correctional facility for not less than one year nor more than five years, or fined not less than $3,000 nor more than $10,000, or both fined and confined.
 

(g) Notwithstanding any provision of this code to the contrary, any person who harasses or stalks another person with the intent to cause the person to physically injure himself or herself, or to take his or her own life, or who continues to harass or stalk another, knowing or having reason to know that the person is likely to physically injure himself or herself, or to take his or her own life based, in whole or in part, on such harassment or stalking, is guilty of a felony and, upon conviction, shall be imprisoned in a state correctional facility for a determinate sentence of not less than two years nor more than 10 years.
 

(h) For the purposes of this section:
 

(1) “Bodily injury” means substantial physical pain, illness, or any impairment of physical condition;
 

(2) “Course of conduct” means a pattern of conduct composed of two or more acts in which a defendant directly, indirectly, or through a third party by any action, method, device, or means:
 

(A) Follows, monitors, observes, surveils, or threatens a specific person or persons;
 

(B) Engages in other nonconsensual contact and/or communications, including contact through electronic communication, with a specific person or persons; or
 

(C) Interferes with or damages a person’s property or pet;
 

(3) “Credible threat” means a threat of bodily injury made with the apparent ability to carry out the threat and with the result that a reasonable person would believe that the threat could be carried out;
 

(4) “Harasses” means a willful course of conduct directed at a specific person or persons which would cause a reasonable person mental injury or emotional distress and which serves no legitimate or lawful purpose;
 

(5) “Immediate family” means a spouse, parent, stepparent, mother-in-law, father-in-law, child, stepchild, sibling, or any person who regularly resides in the household or within the prior six months regularly resided in the household; and
 

(6) “Repeatedly” means on two or more occasions.
 

(i) Any person convicted under the provisions of this section who is granted probation or for whom execution or imposition of a sentence or incarceration is suspended, shall have as a condition of probation or suspension of sentence that he or she participate in counseling or medical treatment as directed by the court.
 

(j) Upon conviction, the court may issue an order restraining the defendant from any contact with the victim for a period not to exceed 10 years. The length of any restraining order shall be based upon the seriousness of the violation before the court, the probability of future violations, and the safety of the victim or his or her immediate family. The duration of the restraining order may be longer than five years only in cases when a longer duration is necessary to protect the safety of the victim or his or her immediate family.
 

(k) It is a condition of bond for any person accused of the offenses described in this section that the person is to have no contact, direct or indirect, verbal or physical, with the alleged victim.
 

(l) Nothing in this section may be construed to preclude a sentencing court from exercising its power to impose home confinement with electronic monitoring as an alternative sentence.
 

(m) The Governor’s Committee on Crime, Delinquency, and Correction, after consultation with representatives of labor, licensed domestic violence programs, and rape crisis centers which meet the standards of the West Virginia Foundation for Rape Information and Services, is authorized to promulgate legislative rules and emergency rules pursuant to § 29A-3-1 et seq. of this code, establishing appropriate standards for the enforcement of this section by state, county, and municipal law-enforcement officers and agencies.

61-2-9d. Strangulation; suffocation and asphyxiation; definitions; penalties

Updated: 
July 23, 2024

(a) As used in this section:

“Bodily injury” means substantial physical pain, illness or any impairment of physical condition;

“Strangle” means knowingly and willfully restricting another person’s air intake or blood flow by the application of pressure on the neck or throat;

“Suffocate” means knowingly and willfully restricting the normal breathing or circulation of blood by blocking the nose or mouth of another; and

“Asphyxiate” means knowingly and willfully restricting the normal breathing or circulation of blood by the application of pressure on the chest or torso.

(b) Any person who strangles, suffocates or asphyxiates another without that person’s consent and thereby causes the other person bodily injury or loss of consciousness is guilty of a felony and, upon conviction thereof, shall be fined not more than $2,500 or imprisoned in a state correctional facility not less than one year or more than five years, or both fined and imprisoned.

61-2-14a. Kidnapping; penalty

Updated: 
July 23, 2024

(a) Any person who unlawfully takes custody of, conceals, confines, transports, or restrains another person against his or her will by means of force, threat of force, duress, fraud, deceit, inveiglement, misrepresentation, or enticement with the intent to:
 

(1) Hold another person for ransom, reward, or concession;
 

(2) Inflict bodily injury;
 

(3) Terrorize the victim or another person; or
 

(4) Use another person as a shield or hostage, is guilty of a felony and, upon conviction thereof, shall be punished by imprisonment by the Division of Corrections and Rehabilitation for life, and, notwithstanding the provisions of § 62-12-1 et seq. of this code, is not eligible for parole.
 

(b) The following exceptions apply to the penalty contained in subsection (a) of this section:
 

(1) A jury may, in their discretion, recommend mercy, and if the recommendation is added to their verdict, the person is eligible for parole in accordance with the provisions of § 62-12-1 et seq. of this code;
 

(2) If the person pleads guilty, the court may, in its discretion, provide that the person is eligible for parole in accordance with the provisions of § 62-12-1 et seq. of this code and, if the court so provides, the person is eligible for parole in accordance with the provisions of said article, in the same manner and with like effect as if the person had been found guilty by the verdict of a jury and the jury had recommended mercy;
 

(3) In all cases where the person against whom the offense is committed is returned, or is permitted to return, alive, without bodily harm having been inflicted upon him or her, but after ransom, money, or other thing, or any concession or advantage of any sort has been paid or yielded, the punishment shall be imprisonment by the Division of Corrections and Rehabilitation for a definite term of years not less than 20 nor more than 50; or
 

(4) In all cases where the person against whom the offense is committed is returned, or is permitted to return, alive, without bodily harm having been inflicted upon him or her, but without ransom, money, or other thing, or any concession or advantage of any sort having been paid or yielded, the punishment shall be imprisoned by the Division of Corrections and Rehabilitation for a definite term of years not less than 10 nor more than 30.
 

(c) For purposes of this section, “to use another as a hostage” means to seize or detain and threaten to kill or injure another in order to compel a third person or a governmental organization to do, or abstain from doing, any legal act as an explicit or implicit condition for the release of the person detained.
 

(d) Notwithstanding any other provision of this section, if a violation of this section is committed by a family member of a minor abducted or held hostage and he or she is not motivated by monetary purposes, but rather intends to conceal, take, remove the child, or refuse to return the child to his or her lawful guardian in the belief, mistaken or not, that it is in the child’s interest to do so, he or she is guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility for not less than one nor more than five years or fined not more than $1,000, or both imprisoned and fined.
 

(e) Notwithstanding any provision of this code to the contrary, where a law-enforcement agency of this state or a political subdivision thereof receives a complaint that a violation of the provisions of this section has occurred, the receiving law-enforcement agency shall notify any other law-enforcement agency with jurisdiction over the offense, including, but not limited to, the State Police and each agency so notified, shall cooperate in the investigation immediately.
 

(f) It is a defense to a violation of subsection (d) of this section, that the accused’s action was necessary to preserve the welfare of the minor child and the accused promptly reported his or her actions to a person with lawful custody of the minor, to law enforcement, or to the Child Protective Services Division of the Department of Human Services.

61-2-14d. Concealment or removal of minor child from custodian or from person entitled to visitation; penalties; defenses

Updated: 
July 23, 2024

(a) Any person who conceals, takes or removes a minor child in violation of any court order and with the intent to deprive another person of lawful custody or visitation rights shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one nor more than five years, or in the discretion of the court, shall be imprisoned in the county jail not more than one year or fined not more than one thousand dollars, or both fined and imprisoned.

(b) Any person who violates this section and in so doing removes the minor child from this State or conceals the minor child in another state shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one nor more than five years, or fined not more than one thousand dollars, or both fined and imprisoned.

(c) It shall be a defense under this section that the accused reasonably believed such action was necessary to preserve the welfare of the minor child. The mere failure to return a minor child at the expiration of any lawful custody or visitation period without the intent to deprive another person of lawful custody or visitation rights shall not constitute an offense under this section.

61-2-28. Domestic violence - Criminal acts

Updated: 
July 23, 2024

(a) Domestic battery. – Any person who unlawfully and intentionally makes physical contact of an insulting or provoking nature with his or her family or household member, or unlawfully and intentionally causes physical harm to his or her family or household member, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than twelve months or fined not more than $500, or both fined and confined.
(b) Domestic assault. – Any person who unlawfully attempts to commit a violent injury against his or her family or household member, or unlawfully commits an act that places his or her family or household member in reasonable apprehension of immediately receiving a violent injury, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than six months or fined not more than $100, or both fined and confined.
(c) Second offense. – Domestic assault or domestic battery.
A person convicted of a violation of subsection (a) of this section after having been previously convicted of a violation of subsection (a) or (b) of this section, after having been convicted of a violation of subsection (b) or (c), section nine of this article or subsection (a), section fourteen-g of this article, where the victim was his or her current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense or who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section, or a violation of subsection (b) or (c), section nine of this article or subsection (a), section fourteen-g of this article where the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than sixty days nor more than one year or fined not more than $1,000, or both fined and confined.
A person convicted of a violation of subsection (b) of this section after having been previously convicted of a violation of subsection (a) or (b) of this section, after having been convicted of a violation of subsection (b) or (c), section nine of this article or subsection (a), section fourteen-g of this article, where the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense or having previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or subsection (b) or (c), section nine of this article or subsection (a), section fourteen-g of this article where the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense shall be confined in jail for not less than thirty days nor more than six months or fined not more than $500, or both fined and confined.
(d) Any person who has been convicted of a third or subsequent violation of the provisions of subsection (a) or (b) of this section, a third or subsequent violation of the provisions of section nine of this article or subsection (a), section fourteen-g of this article, where the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense or who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or a violation of the provisions of section nine of this article or subsection (a), section fourteen-g of this article in which the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense, or any combination of convictions or diversions for these offenses, is guilty of a felony if the offense occurs within ten years of a prior conviction of any of these offenses and, upon conviction thereof, shall be confined in a state correctional facility not less than one nor more than five years or fined not more than $2,500, or both fined and confined.
(e) As used in this section, “family or household member” means “family or household member” as defined in section two hundred four, article twenty-seven, chapter forty-eight of this code.
(f) A person charged with a violation of this section may not also be charged with a violation of subsection (b) or (c), section nine of this article for the same act.
(g) No law-enforcement officer may be subject to any civil or criminal action for false arrest or unlawful detention for effecting an arrest pursuant to this section or pursuant to section one thousand two, article twenty-seven, chapter forty-eight of this code.

61-2-29. Abuse or neglect of incapacitated adult; definitions; penalties

Updated: 
July 23, 2024

(a) The following words, when used in this section and sections twenty-nine-a and twenty-nine-b of this article, have the meaning ascribed, unless the context clearly indicates otherwise:
 

(1) “Abuse” means the intentional infliction of bodily injury on an incapacitated adult;
 

(2) “Bodily injury” means substantial physical pain, illness or any impairment of physical condition;
 

(3) “Caregiver” means any person who has assumed the legal responsibility or a contractual obligation for the care of an incapacitated adult, or has voluntarily assumed responsibility for the care of an incapacitated adult. The term includes a facility operated by any public or private agency, organization or institution which provides services to, and has assumed responsibility for the care of an incapacitated adult.
 

(4) “Incapacitated adult” means any person eighteen years of age or older who by reason of advanced age, physical, mental or other infirmity is unable to carry on the daily activities of life necessary to sustaining life and reasonable health;
 

(5) “Neglect” means the unreasonable failure by a caregiver to provide the care necessary to assure the physical safety or health of an incapacitated adult; and
 

(6) “Serious bodily injury” means bodily injury which creates a substantial risk of death, which causes serious or prolonged disfigurement, prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ.
 

(b) A caregiver who neglects an incapacitated adult or who knowingly permits another person to neglect an incapacitated adult is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500 or confined in jail for not more than one year, or both fined and confined.
 

(c) A caregiver who abuses an incapacitated adult or who knowingly permits another person to abuse an incapacitated adult is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500 or confined in jail for not less than ninety days nor more than one year, or both fined and confined.
 

(d) A caregiver of an incapacitated adult who intentionally and maliciously abuses or neglects an incapacitated adult and causes the incapacitated adult bodily injury is guilty of a felony and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000 and imprisoned in a state correctional facility not less than two years nor more than ten years.
 

(e) A caregiver of an incapacitated adult who intentionally and maliciously abuses or neglects an incapacitated adult and causes the incapacitated adult serious bodily injury is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000 and imprisoned in a state correctional facility not less than three years nor more than fifteen years.
 

(f) Nothing in this section or in section twenty-nine-a of this article shall be construed to mean an adult is abused or neglected for the sole reason that his or her independent decision is to rely upon treatment by spiritual means in accordance with the tenets and practices of a recognized church or religious denomination or organization in lieu of medical treatment.
 

(g) Nothing in this section or in section twenty-nine-a of this article shall be construed to mean an incapacitated adult is abused or neglected if deprivation of life-sustaining treatment or other act has been provided for by the West Virginia Health Care Decisions Act, pursuant to article thirty, chapter sixteen of this code.

61-2-29b. Financial exploitation of an elderly person, protected person, or incapacitated adult; penalties; definitions

Updated: 
July 23, 2024

(a) Any person who financially exploits an elderly person, protected person, or an incapacitated adult in the amount of less than $1,000 is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in jail for not more than one year, or both fined and confined.
 

(b) Any person who financially exploits an elderly person, protected person, or an incapacitated adult in the amount of $1,000 or more is guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000 and imprisoned in a state correctional facility not less than two nor more than 20 years.
 

(c) Any person convicted of a violation of this section shall, in addition to any other penalties at law, be subject to an order of restitution.
 

(d) In determining the value of the money, goods, property, or services referred to in subsection (a) of this section, it shall be permissible to cumulate amounts or values where the money, goods, property, or services were fraudulently obtained as part of a common scheme or plan.
 

(e) Financial institutions and their employees, as defined by § 31A-2A-1 of this code and as permitted by § 31A-2A-4 of this code, others engaged in financially related activities, as defined by § 31A-8C-1 of this code, caregivers, relatives, and other concerned persons are permitted to report suspected cases of financial exploitation to state or federal law-enforcement authorities, the county prosecuting attorney, and to the Adult Protective Services Division, or Medicaid Fraud Division, as appropriate. Public officers and employees are required to report suspected cases of financial exploitation to the appropriate entities as stated above. The requisite agencies shall investigate or cause the investigation of the allegations.
 

(f) When financial exploitation is suspected and to the extent permitted by federal law, financial institutions and their employees or other business entities required by federal law or regulation to file suspicious activity reports and currency transaction reports shall also be permitted to disclose suspicious activity reports or currency transaction reports to the prosecuting attorney of any county in which the transactions underlying the suspicious activity reports or currency transaction reports occurred.
 

(g) Any person or entity that in good faith reports a suspected case of financial exploitation pursuant to this section is immune from civil liability founded upon making that report.
 

(h) For the purposes of this section:
 

(1) “Incapacitated adult” means a person as defined by § 61-2-29 of this code;
 

(2) “Elderly person” means a person who is 65 years or older;
 

(3) “Financial exploitation” or “financially exploit” means the intentional misappropriation or misuse of funds or assets of an elderly person, protected person, or incapacitated adult, but shall not apply to a transaction or disposition of funds or assets where the accused made a good-faith effort to assist the elderly person, protected person, or incapacitated adult with the management of his or her money or other things of value; and
 

(4) “Protected person” means any person who is defined as a “protected person” in § 44A-1-4 of this code and who is subject to the protections of § 44A-1-1 et seq. or § 44C-1-1 et seq. of this code.
 

(i) Notwithstanding any provision of this code to the contrary, acting as guardian, conservator, trustee, or attorney for, or holding power of attorney for, an elderly person, protected person, or incapacitated adult shall not, standing alone, constitute a defense to a violation of subsection (a) of this section.
 

(j) Any person who willfully violates a material term of an order entered pursuant to § 55-7J-1 et seq. of this code is guilty of a misdemeanor and, upon conviction, shall:
 

(1) For the first offense, be fined not more than $1,000 or confined in jail not more than 90 days, or both fined and confined; and
 

(2) For a second or subsequent offense, be fined not more than $2,500 or confined in jail not more than one year, or both fined and confined.

Article 3. Crimes Against Property

Updated: 
July 23, 2024

61-3-54. Taking identity of another person; penalty

Updated: 
July 23, 2024

Any person who knowingly takes the name, birth date, social security number, or other identifying information of another person, without the consent of that other person, with the intent to fraudulently represent that he or she is the other person for the purpose of making financial or credit transactions in the other person’s name, or for the purpose of gaining employment, is guilty of a felony and, upon conviction, shall be punished by confinement in the penitentiary not more than five years, or fined not more than $1,000, or both: Provided,That the provisions of this section do not apply to any person who obtains another person’s drivers license or other form of identification for the sole purpose of misrepresenting his or her age.

Article 3C. West Virginia Computer Crime and Abuse Act

Updated: 
July 23, 2024

61-3C-14a. Obscene, anonymous, harassing and threatening communications by computer, cell phones and electronic communication devices; penalty

Updated: 
July 23, 2024

(a) It is unlawful for any person, with the intent to harass or abuse another person, to use a computer, mobile phone, personal digital assistant or other electronic communication device to:

(1) Make contact with another person without disclosing his or her identity with the intent to harass or abuse;

(2) Make contact with a person after being requested by the person to desist from contacting them: Provided, That a communication made by a lender or debt collector to a consumer, regarding an overdue debt of the consumer that does not violate chapter forty-six-a of this code, does not violate this subsection;

(3) Threaten to commit a crime against any person or property; or

(4) Cause obscene material to be delivered or transmitted to a specific person after being requested to desist from sending such material.

(b) For purposes of this section:

(1) “Electronic communication device” means and includes a telephone, wireless phone, computer, pager or any other electronic or wireless device which is capable of transmitting a document, image, voice, e-mail or text message using such device in an electronic, digital or analog form from one person or location so it may be viewed or received by another person or persons at other locations.

(2) “Use of a computer, mobile phone, personal digital assistant or other electronic communication device” includes, but is not limited to, the transmission of text messages, electronic mail, photographs, videos, images or other nonvoice data by means of an electronic communication system, and includes the transmission of such data, documents, messages and images to another’s computer, e-mail account, mobile phone, personal digital assistant or other electronic communication device.

(3) “Obscene material” means material that:

(A) An average person, applying contemporary adult community standards, would find, taken as a whole, appeals to the prurient interest, is intended to appeal to the prurient interest, or is pandered to a prurient interest;

(B) An average person, applying contemporary adult community standards, would find, depicts or describes, in a patently offensive way, sexually explicit conduct consisting of an ultimate sexual act, normal or perverted, actual or simulated, an excretory function, masturbation, lewd exhibition of the genitals, or sadomasochistic sexual abuse; and

(C) A reasonable person would find, taken as a whole, lacks literary, artistic, political or scientific value.

(c) It is unlawful for any person to knowingly permit a computer, mobile phone or personal digital assistant or other electronic communication device under his or her control to be used for any purpose prohibited by this section.

(d) Any offense committed under this section may be determined to have occurred at the place at which the contact originated or the place at which the contact was received or intended to be received.

(e) Any person who violates a provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $500 or confined in jail not more than six months, or both fined and confined. For a second or subsequent offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in jail for not more than one year, or both fined and confined.

Article 6. Crimes Against the Peace

Updated: 
July 23, 2024

61-6-25. Falsely reporting child abuse

Updated: 
July 23, 2024

(a) Any person who knowingly and intentionally reports or causes to be reported to a law-enforcement officer, child protective service worker, or judicial officer that another has committed child sexual abuse, child abuse, or neglect as those terms are defined in § 49-1-201 of this code who when doing so knows or has reason to know the accusation is false and who does it with the intent to influence a child custody decision shall be guilty of a misdemeanor, and, upon conviction, shall be fined not more than $1,000, sentenced to not more than sixty hours of court-approved community service, or both.

(b) In addition to any other sanctions imposed by the provisions of this section, any person convicted of a violation of this section shall be required to attend and complete a court-approved parenting class.

Article 7. Dangerous Weapons

Updated: 
July 23, 2024

61-7-2. Definitions

Updated: 
July 23, 2024

As used in this article, unless the context otherwise requires:
 

(1) “Antique firearm” means:
 

(A) Any firearm, including, but not limited to, a firearm with a match lock, flintlock, percussion cap, or similar type of ignition system which was manufactured on or before 1898;
 

(B) Any replica of any firearm described in paragraph (A) of this subdivision if such replica is not designed or redesigned to use rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; and
 

(C) Any muzzle-loading rifle, muzzle-loading shotgun, or muzzle-loading pistol, which is designed to use black powder, or black powder substitute, and which cannot use fixed ammunition. For purposes of this subdivision, the term “antique firearm” shall not include any weapon which includes a firearm frame or receiver, any firearm which is converted into a muzzle-loading weapon, or any muzzle-loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.
 

(2) “Blackjack” means a short bludgeon consisting, at the striking end, of an encased piece of lead or some other heavy substance and, at the handle end, a strap or springy shaft which increases the force of impact when a person or object is struck. The term “blackjack” includes, but is not limited to, a billy, billy club, sand club, sandbag, or slapjack.
 

(3) “Concealed” means hidden from ordinary observation so as to prevent disclosure or recognition. A deadly weapon is concealed when it is carried on or about the person in such a manner that another person in the ordinary course of events would not be placed on notice that the deadly weapon was being carried. For purposes of concealed handgun licensees, a licensee is considered to be carrying on or about his or her person while in or on a motor vehicle if the firearm is located in a storage area in or on the motor vehicle.
 

(4) “Controlled substance” has the same meaning as is ascribed to that term in § 60A-1-101(e) of this code.
 

(5) “Deadly weapon” means an instrument which is designed to be used to produce serious bodily injury or death or is readily adaptable to such use. The term “deadly weapon” includes, but is not limited to, the instruments defined in subdivisions (1), (2), (5), (7), (8), (9), (10), (11), (12), (13), (14), and (15), inclusive, of this section or other deadly weapons of like kind or character which may be easily concealed on or about the person. For the purposes of § 18A-5-1a of this code and § 61-7-11a of this code, in addition to the definition of “knife” set forth in subdivision (9) of this subsection, the term “deadly weapon” also includes any instrument included within the definition of “knife” with a blade of three and one-half inches or less in length. Additionally, for the purposes of § 18A-5-1a of this code and § 61-7-11a of this code, the term “deadly weapon” includes explosive, chemical, biological, and radiological materials. Notwithstanding any other provision of this section, the term “deadly weapon” does not include any item or material owned by the school or county board, intended for curricular use, and used by the student at the time of the alleged offense solely for curricular purposes. The term “deadly weapon” does not include pepper spray as defined in subdivision (12) of this subsection when used by any person solely for self-defense purposes.
 

(6) “Drug” has the same meaning as is ascribed to that term in § 60A-1-101(m) of this code.
 

(7) “Firearm” means any weapon which will expel a projectile by action of an explosion: Provided, That it does not mean an antique firearm as defined in subdivision (1) of this subsection except for the purposes of § 48-27-502 of this code.
 

(8) “Gravity knife” means any knife that has a blade released from the handle by the force of gravity or the application of centrifugal force and when released is locked in place by means of a button, spring, lever, or other locking or catching device.
 

(9) “Knife” means an instrument, intended to be used or readily adaptable to be used as a weapon, consisting of a sharp-edged or sharp-pointed blade, usually made of steel, attached to a handle which is capable of inflicting cutting, stabbing, or tearing wounds. The term “knife” includes, but is not limited to, any dagger, dirk, poniard, or stiletto, with a blade over three and one-half inches in length, any switchblade knife or gravity knife, and any other instrument capable of inflicting cutting, stabbing, or tearing wounds. A pocket knife with a blade three and one-half inches or less in length, a hunting or fishing knife carried for hunting, fishing, sports, or other recreational uses, or a knife designed for use as a tool or household implement is not included within the term “knife” as defined in this subdivision unless the knife is knowingly used or intended to be used to produce serious bodily injury or death.
 

(10) “Metallic or false knuckles” means a set of finger rings attached to a transverse piece to be worn over the front of the hand for use as a weapon and constructed in such a manner that, when striking another person with the fist or closed hand, considerable physical damage may be inflicted upon the person who was struck. The terms “metallic or false knuckles” includes any such instrument without reference to the metal or other substance or substances from which the metallic or false knuckles are made.
 

(11) “Nunchaku” means a flailing instrument consisting of two or more rigid parts, connected by a chain, cable, rope, or other nonrigid, flexible, or springy material, constructed in a manner that allows the rigid parts to swing freely so that one rigid part may be used as a handle and the other rigid part may be used as the striking end.
 

(12) “Pepper spray” means a temporarily disabling aerosol that is composed partly of capsicum oleoresin and causes irritation, blinding of the eyes, and inflammation of the nose, throat, and skin that is intended for self-defense use.
 

(13) “Pistol” means a short firearm having a chamber which is integral with the barrel, designed to be aimed and fired by the use of a single hand.
 

(14) “Revolver” means a short firearm having a cylinder of several chambers that are brought successively into line with the barrel to be discharged, designed to be aimed and fired by the use of a single hand.
 

(15) “Switchblade knife” means any knife having a spring-operated blade which opens automatically upon pressure being applied to a button, catch, or other releasing device in its handle.

61-7-7. Persons prohibited from possessing firearms; classifications; reinstatement of rights to possess; offenses; penalties

Updated: 
July 23, 2024

(a) Except as provided in this section, no person shall possess a firearm, as such is defined in section two of this article, who:

(1) Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;

(2) Is habitually addicted to alcohol;

(3) Is an unlawful user of or habitually addicted to any controlled substance;

(4) Has been adjudicated to be mentally incompetent or who has been involuntarily committed to a mental institution pursuant to the provisions of chapter twenty-seven of this code or in similar law of another jurisdiction: Provided, That once an individual has been adjudicated as a mental defective or involuntarily committed to a mental institution, he or she shall be duly notified that they are to immediately surrender any firearms in their ownership or possession: Provided, however, That the mental hygiene commissioner or circuit judge shall first make a determination of the appropriate public or private individual or entity to act as conservator for the surrendered property;

(5) Is an alien illegally or unlawfully in the United States;

(6) Has been discharged from the armed forces under dishonorable conditions;

(7) Is subject to a domestic violence protective order that:

(A) Was issued after a hearing of which such person received actual notice and at which such person had an opportunity to participate;

(B) Restrains such person from harassing, stalking or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)(i) Includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) By its terms explicitly prohibits the use, attempted use or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or

(8) Has been convicted of a misdemeanor offense of assault or battery either under the provisions of section twenty-eight, article two of this chapter or the provisions of subsection (b) or (c), section nine of said article or a federal or state statute with the same essential elements in which the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense or has been convicted in any court of any jurisdiction of a comparable misdemeanor crime of domestic violence.

Any person who violates the provisions of this subsection shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000 or confined in the county jail for not less than ninety days nor more than one year, or both.

(b) Notwithstanding the provisions of subsection (a) of this section, any person:

(1) Who has been convicted in this state or any other jurisdiction of a felony crime of violence against the person of another or of a felony sexual offense; or

(2) Who has been convicted in this state or any other jurisdiction of a felony controlled substance offense involving a Schedule I controlled substance other than marijuana, a Schedule II or a Schedule III controlled substance as such are defined in sections two hundred four, two hundred five and two hundred six, article two, chapter sixty-a of this code and who possesses a firearm as such is defined in section two of this article shall be guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not more than five years or fined not more than $5,000, or both. The provisions of subsection (f) of this section shall not apply to persons convicted of offenses referred to in this subsection or to persons convicted of a violation of this subsection.

(c) Any person may carry a concealed deadly weapon without a license therefor who is:

(1) At least twenty-one years of age;

(2) A United States citizen or legal resident thereof;

(3) Not prohibited from possessing a firearm under the provisions of this section; and

(4) Not prohibited from possessing a firearm under the provisions of 18 U. S. C. § 922(g) or (n).

(d) As a separate and additional offense to the offense provided for in subsection (a) of this section, and in addition to any other offenses outlined in this code, and except as provided by subsection (e) of this section, any person prohibited by subsection (a) of this section from possessing a firearm who carries a concealed firearm is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not more than three years or fined not more than $5,000, or both.

(e) As a separate and additional offense to the offense described in subsection (b) of this section, and in additional to any other offenses outlined in this code, any person prohibited by subsection (b) of this section from possessing a firearm who carries a concealed firearm is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not more than ten years or fined not more than $10,000, or both.

(f) Any person prohibited from possessing a firearm by the provisions of subsection (a) of this section may petition the circuit court of the county in which he or she resides to regain the ability to possess a firearm and if the court finds by clear and convincing evidence that the person is competent and capable of exercising the responsibility concomitant with the possession of a firearm, the court may enter an order allowing the person to possess a firearm if such possession would not violate any federal law: Provided, That a person prohibited from possessing a firearm by the provisions of subdivision (4), subsection (a) of this section may petition to regain the ability to possess a firearm in accordance with the provisions of section five, article seven-a of this chapter.

(g) Any person who has been convicted of an offense which disqualifies him or her from possessing a firearm by virtue of a criminal conviction whose conviction was expunged or set aside or who subsequent thereto receives an unconditional pardon for said offense shall not be prohibited from possessing a firearm by the provisions of the section.

61-7-8. Possession of deadly weapons by minors; prohibitions

Updated: 
July 23, 2024

Notwithstanding any other provision of this article to the contrary, a person under the age of 18 years who is not married or otherwise emancipated shall not possess or carry concealed or openly any deadly weapon: Provided, That a minor may possess a firearm upon premises owned by the minor or his or her family or on the premises of another with the permission of his or her parent or guardian and in the case of property other than his or her own or that of his or her family, with the permission of the owner or lessee of the property: Provided, however, That nothing in this section shall prohibit a minor from possessing a firearm while hunting in a lawful manner or while traveling from a place where he or she may lawfully possess a deadly weapon, to a hunting site, and returning to a place where he or she may lawfully possess the weapon.

A violation of this section by a person under the age of 18 years shall subject the child to the jurisdiction of the circuit court under the provisions of § 49-4-701 through § 49-4-725 of this code, and the minor may be proceeded against in the same manner as if he or she had committed an act which if committed by an adult would be a crime, and may be adjudicated delinquent.

Article 8. Crimes Against Chastity, Morality and Decency

Updated: 
July 23, 2024

61-8-9. Indecent exposure

Updated: 
July 23, 2024

(a) A person is guilty of indecent exposure when such person intentionally exposes his or her sex organs or anus or the sex organs or anus of another person, or intentionally causes such exposure by another or engages in any overt act of sexual gratification, and does so under circumstances in which the person knows that the conduct is likely to cause affront or alarm: Provided, That it is not considered indecent exposure for a mother to breast feed a child in any location, public or private.
 

(b) Except as provided in subsection (c), any person who violates the provisions of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not more than ninety days, or fined not more than two hundred fifty dollars, or both fined and confined.
 

(c) Any person who violates the provisions of subsection (a) of this section by intentionally exposing himself or herself to another person and the exposure was done for the purpose of sexual gratification, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars or confined in jail not more than twelve months, or both. For a second offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars and confined in jail for not less than thirty days nor more than twelve months. For a third or subsequent offense, the person is guilty of a felony and, upon conviction thereof, shall be fined not more than three thousand dollars and imprisoned in a state correctional facility for not less than one year nor more than five years.

61-8-12. Incest; penalty

Updated: 
July 23, 2024

(a) For the purposes of this section:
 

(1) “Aunt” means the sister of a person’s mother or father;
 

(2) “Brother” means the son of a person’s mother or father;
 

(3) “Daughter” means a person’s natural daughter, adoptive daughter, or the daughter of a person’s husband or wife;
 

(4) “Father” means a person’s natural father, adoptive father, or the husband of a person’s mother;
 

(5) “Granddaughter” means the daughter of a person’s son or daughter;
 

(6) “Grandfather” means the father of a person’s father or mother;
 

(7) “Grandmother” means the mother of a person’s father or mother;
 

(8) “Grandson” means the son of a person’s son or daughter;
 

(9) “Mother” means a person’s natural mother, adoptive mother, or the wife of a person’s father;
 

(10) “Niece” means the daughter of a person’s brother or sister;
 

(11) “Nephew” means the son of a person’s brother or sister;
 

(12) “Sexual intercourse” means any act between persons involving penetration, however slight, of the female sex organ by the male sex organ or involving contact between the sex organs of one person and the mouth or anus of another person;
 

(13) “Sexual intrusion” means any act between persons involving penetration, however slight, of the female sex organ or of the anus of any person by an object for the purpose of degrading or humiliating the person so penetrated or for gratifying the sexual desire of either party;
 

(14) “Sister” means the daughter of a person’s father or mother;
 

(15) “Son” means a person’s natural son, adoptive son, or the son of a person’s husband or wife; and
 

(16) “Uncle” means the brother of a person’s father or mother.
 

(b) A person is guilty of incest when such person engages in sexual intercourse or sexual intrusion with his or her father, mother, brother, sister, daughter, son, grandfather, grandmother, grandson, granddaughter, nephew, niece, uncle, or aunt.
 

(c) Any person who violates the provisions of this section shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than 5 years nor more than 15 years, or fined not less than $500 nor more than $5,000 and imprisoned in the penitentiary not less than five years nor more than fifteen years.
 

(d) In addition to any penalty provided under this section and any restitution which may be ordered by the court under § 61-11A-1 et seq. of this code, the court may order any person convicted under the provisions of this section, where the victim is a minor, to pay all or any portion of the cost of medical, psychological, or psychiatric treatment of the victim, the need for which results from the act or acts for which the person is convicted, whether or not the victim is considered to have sustained bodily injury.
 

(e) In any case where a person is convicted of an offense described in this section against a child and further has or may have custodial, visitation, or other parental rights to the child, the court shall find that the person is an abusing parent within the meaning of § 49-4-601 through § 49-4-610 of this code, and shall take further action in accord with the provisions of those sections.

61-8-16. Obscene, anonymous, harassing, repeated and threatening telephone calls; penalty

Updated: 
July 23, 2024

(a) It is unlawful for any person with intent to harass or abuse another by means of telephone to:

(1) Make any comment, request, suggestion or proposal which is obscene; or

(2) Make a telephone call, whether or not conversation ensues, without disclosing his or her identity and with intent to harass any person at the called number; or

(3) Make or cause the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or

(4) Make repeated telephone calls, during which conversation ensues, with intent to harass any person at the called number; or

(5) Threaten to commit a crime against any person or property.

(b) It shall be unlawful for any person to knowingly permit any telephone under his or her control to be used for any purpose prohibited by this section.

(c) Any offense committed under this section may be deemed to have occurred at the place at which the telephone call was made, or the place at which the telephone call was received.

(d) Any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $500, or confined in jail not more than six months, or both fined and confined.

61-8-28. Criminal invasion of privacy; penalties

Updated: 
July 23, 2024

(a) For the purposes of this section, the words or terms defined in this subsection have the meanings ascribed to them. These definitions are applicable unless a different meaning clearly appears from the context:

(1) “A person fully or partially nude” means a male or female who is either clothed or unclothed so that: (A) All or any part of his or her genitals, pubic area or buttocks is visible; or (B) in the case of a female only, a part of a nipple of her breast is visible and is without a fully opaque covering;

(2) “To visually portray” a person means to create a reproducible image of that person by means of:

(A) A photograph;

(B) A motion picture;

(C) A video tape;

(D) A digital recording; or

(E) Any other mechanical or electronic recording process or device that can preserve, for later viewing, a visual image of a person; and

(3) “Place where a reasonable person would have an expectation of privacy” means a place where a reasonable person would believe that he or she could, in privacy, be fully or partially nude without expecting that the act of exposing his or her body was being visually portrayed by another person.

(b) It is unlawful for a person to knowingly visually portray another person without that other person’s knowledge, while that other person is fully or partially nude and is in a place where a reasonable person would have an expectation of privacy. A person who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction, shall be confined in a county or regional jail for not more than one year or fined not more than five thousand dollars, or both.

(c) Any person who displays or distributes visual images of another person with knowledge that said visual images were obtained in violation of subsection (b) of this section is guilty of a misdemeanor and, upon conviction, shall be confined in a county or regional jail for not more than one year or fined not more than five thousand dollars, or both.

(d) A person who is convicted of a second or subsequent violation of subsection (b) or (c) of this section is guilty of a felony and, upon conviction, shall be confined in a state correctional facility for not less than one year nor more than five years or fined not more than ten thousand dollars, or both.

61-8-28a. Nonconsensual disclosure of private intimate images; definitions; and penalties

Updated: 
July 23, 2024

(a) As used in this section:
(1) “Disclose” means to publish, publicly display, distribute, deliver, circulate or disseminate by any means, including, but not limited to, electronic transmission.
(2) “Image” means a photograph, videotape, motion picture film, digital recording or any product of any mechanical or electronic recording process or device that can preserve, for later viewing, a visual image.
(3) “Intimate parts” means a person’s genitalia, pubic area, anus or female post-pubescent breasts.
(4) To “publicly disclose” means to disclose an image to one or more persons other than those persons whom the person depicted understood would view the image at the time it was captured.
(b) No person may knowingly and intentionally disclose, cause to be disclosed or threaten to disclose, with the intent to harass, intimidate, threaten, humiliate, embarrass, or coerce, an image of another which shows the intimate parts of the depicted person or shows the depicted person engaged in sexually explicit conduct which was captured under circumstances where the person depicted had a reasonable expectation that the image would not be publicly disclosed.
(c)(1) A person convicted of a violation of subsection (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than one year, fined not less than $1,000 nor more than $5,000, or both confined and fined.
(2) Notwithstanding the provisions of subdivision (1) of this subsection, a person convicted of a second or subsequent violation of subsection (b) of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not more than three years, fined not less than $2,500 nor more than $10,000, or both imprisoned and fined.
(d) The provisions of this section do not apply to:
(1) Images disclosed with the prior written consent of the person depicted;
(2) Images depicting the person voluntarily exposing himself or herself in a public or commercial setting; or
(3) Disclosures made through the reporting of illegal conduct or the lawful and common practices of law enforcement, criminal reporting, legal proceeding or medical treatment.
(e) Nothing in this section shall be construed to impose liability on the provider of an interactive computer service as defined by 47 U. S. C. § 230(f)(2), an information service as defined by 47 U. S. C. § 153(24), or telecommunications service as defined by 47 U. S. C. § 153(53), for content provided by another person.

Article 8a. Preparation, Distribution or Exhibition of Obscene Matter to Minors

Updated: 
July 23, 2024

61-8A-2. Distribution and display to minor of obscene matter; penalties; defenses

Updated: 
July 23, 2024

(a) Any adult, with knowledge of the character of the matter, who knowingly and intentionally distributes, offers to distribute, or displays to a minor any obscene matter, is guilty of a felony and, upon conviction thereof, shall be fined not more than twenty-five thousand dollars, or confined in a state correctional facility for not more than five years, or both.
 

(b) It is a defense to a prosecution under the provisions of this section that the obscene matter:
 

(1) Was displayed in an area from which minors are physically excluded and the matter so located cannot be viewed by a minor from nonrestricted areas; or
 

(2) Was covered by a device, commonly known as a “blinder rack,” such that the lower two thirds of the cover of the material is not exposed to view; or
 

(3) Was enclosed in an opaque wrapper such that the lower two thirds of the cover of the material was not exposed to view; or
 

(4) Was displayed or distributed after taking reasonable steps to receive, obtain or check an adult identification card, such as a driver’s license or other technically or reasonably feasible means of verification of age.
 

(c) It is a defense to an alleged violation under this section that a parent had taken reasonable steps to limit the minor’s access to the obscene matter.

61-8A-4. Use of obscene matter with intent to seduce minor

Updated: 
July 23, 2024

Any adult, having knowledge of the character of the matter, who knows or believes that a person is a minor at least four years younger than the adult, and distributes, offers to distribute or displays by any means any obscene matter to the person who is known or believed to be a minor at least four years younger than the adult, and such distribution, offer to distribute, or display is undertaken with the intent or for the purpose of facilitating the sexual seduction or abuse of the minor, is guilty of a felony and, upon conviction thereof, shall be fined not more than $25,000, or imprisoned in a state correctional facility for not more than five years, or both. For a second and each subsequent commission of such offense, such person is guilty of a felony and, upon conviction, shall be fined not more than $50,000 or imprisoned in a state correctional facility for not more than ten years, or both.

61-8A-5. Employment or use of minor to produce obscene matter or assist in doing sexually explicit conduct; penalties

Updated: 
July 23, 2024

Any adult who, with knowledge that a person is a minor or who fails to exercise reasonable care in ascertaining the age of a minor, hires, employs or uses such minor to produce obscene matter or to do or assist in doing any sexually explicit conduct, is guilty of a felony and, upon conviction thereof, shall be fined not more than fifty thousand dollars or confined in a state correctional facility for not more than ten years, or both.

Article 8b. Sexual Offenses

Updated: 
July 23, 2024

61-8B-1. Definition of terms

Updated: 
July 23, 2024

In this article, unless a different meaning plainly is required:
 

(1) “Forcible compulsion” means:
 

(A) Physical force that overcomes such earnest resistance that is reasonably expected under the circumstances;
 

(B) Threat or intimidation, expressed or implied, placing a person in fear of immediate death or bodily injury to himself or herself or another person, or in fear that he or she or another person will be kidnapped; or
 

(C) Fear by a person under 16 years of age caused by intimidation, expressed or implied, by another person who is at least four years older than the victim.
 

For the purposes of this definition, “resistance” includes physical resistance or any clear communication of the victim’s lack of consent.
 

(2) “Mentally defective” means that a person suffers from a mental disease or defect which renders that person incapable of appraising the nature of his or her conduct.
 

(3) “Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his or her conduct as a result of the influence of a controlled or intoxicating substance administered to that person without his or her consent or as a result of any other act committed upon that person without his or her consent.
 

(4) “Physically helpless” means that a person is unconscious or for any reason is physically unable to communicate unwillingness to an act.
 

(5) “Sexual contact” means any intentional touching, either directly or through clothing, of the breasts, buttocks, anus, or any part of the sex organs of another person, or intentional touching of any part of another person’s body by the actor’s sex organs and the touching is done for the purpose of gratifying the sexual desire of either party.
 

(6) “Sexual intercourse” means any act between persons involving penetration, however slight, of the female sex organ by the male sex organ or involving contact between the sex organs of one person and the mouth or anus of another person.
 

(7) “Sexual intrusion” means any act between persons involving penetration, however slight, of the female sex organ or of the anus of any person by an object for the purpose of degrading or humiliating the person so penetrated or for gratifying the sexual desire of either party.
 

(8) “Bodily injury” means substantial physical pain, illness, or any impairment of physical condition.
 

(9) “Serious bodily injury” means bodily injury which creates a substantial risk of death, which causes serious or prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.
 

(10) “Deadly weapon” means any instrument, device, or thing capable of inflicting death or serious bodily injury and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon.
 

(11) “Forensic medical examination” means an examination provided to a possible victim of a violation of the provisions of this article by medical personnel qualified to gather evidence of the violation in a manner suitable for use in a court of law, to include: An examination for physical trauma; a determination of penetration or force; a patient interview; and the collection and evaluation of other evidence that is potentially relevant to the determination that a violation of the provisions of this article occurred and to the determination of the identity of the assailant.

61-8B-3. Sexual assault in the first degree

Updated: 
July 23, 2024

(a) A person is guilty of sexual assault in the first degree when:
 

(1) The person engages in sexual intercourse or sexual intrusion with another person and, in so doing:
 

(A) Inflicts serious bodily injury upon anyone;
 

(ii)1(B) Employs a deadly weapon in the commission of the act.
 

(2) The person, being 14 years old or more, engages in sexual intercourse or sexual intrusion with another person who is younger than 12 years old.
 

(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $10,000 and imprisoned in a state correctional facility not less than 15 nor more than 35 years.
 

(c) Notwithstanding the provisions of subsection (b) of this section, the penalty for any person violating the provisions of subsection (a) of this section who is 18 years of age or older and whose victim is younger than 12 years of age, shall be imprisonment in a state correctional facility for not less than 25 nor more than 100 years and a fine of not less than $5,000 nor more than $25,000.

61-8B-4. Sexual assault in the second degree

Updated: 
July 23, 2024

(a) A person is guilty of sexual assault in the second degree when:

(1) Such person engages in sexual intercourse or sexual intrusion with another person without the person’s consent, and the lack of consent results from forcible compulsion; or

(2) Such person engages in sexual intercourse or sexual intrusion with another person who is physically helpless.

(b) Any person who violates the provisions of this section shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than ten nor more than twenty-five years, or fined not less than one thousand dollars nor more than ten thousand dollars and imprisoned in the penitentiary not less than ten nor more than twenty-five years.

61-8B-5. Sexual assault in the third degree

Updated: 
July 23, 2024

(a) A person is guilty of sexual assault in the third degree when:
 

(1) The person engages in sexual intercourse or sexual intrusion with another person who is mentally defective or mentally incapacitated; or
 

(2) The person, being 16 years old or more, engages in sexual intercourse or sexual intrusion with another person who is less than 16 years old and who is at least four years younger than the defendant.
 

(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one year nor more than five years, or fined not more than $10,000 and imprisoned in a state correctional facility not less than one year nor more than five years.

61-8B-7. Sexual abuse in the first degree

Updated: 
July 23, 2024

(a) A person is guilty of sexual abuse in the first degree when:

(1) Such person subjects another person to sexual contact without their consent, and the lack of consent results from forcible compulsion; or

(2) Such person subjects another person to sexual contact who is physically helpless; or

(3) Such person, being fourteen years old or more, subjects another person to sexual contact who is younger than twelve years old.

(b) Any person who violates the provisions of this section shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one year nor more than five years, or fined not more than ten thousand dollars and imprisoned in a state correctional facility not less than one year nor more than five years.

(c) Notwithstanding the provisions of subsection (b) of this section, the penalty for any person violating the provisions of subsection (a) of this section who is eighteen years of age or older and whose victim is younger than twelve years of age, shall be imprisonment for not less than five nor more than twenty-five years and fined not less than one thousand dollars nor more than five thousand dollars.

61-8B-8. Sexual abuse in the second degree

Updated: 
July 23, 2024

(a) A person is guilty of sexual abuse in the second degree when such person subjects another person to sexual contact who is mentally defective or mentally incapacitated.

(b) Any person who violates the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be confined in the county jail not more than twelve months, or fined not more than five hundred dollars and confined in the county jail not more than twelve months.

61-8B-9. Sexual abuse in the third degree

Updated: 
July 23, 2024

(a) A person is guilty of sexual abuse in the third degree when he subjects another person to sexual contact without the latter’s consent, when such lack of consent is due to the victim’s incapacity to consent by reason of being less than sixteen years old.

(b) In any prosecution under this section it is a defense that:

(1) The defendant was less than sixteen years old; or

(2) The defendant was less than four years older than the victim.

(c) Any person who violates the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be confined in the county jail not more than ninety days, or fined not more than five hundred dollars and confined in the county jail not more than ninety days.

Article 8c. Filming of Sexually Explicit Conduct of Minors

Updated: 
July 23, 2024

61-8C-2. Use of minors in filming sexually explicit conduct prohibited; penalty

Updated: 
July 23, 2024

(a) Any person who causes or knowingly permits, uses, persuades, induces, entices or coerces such minor to engage in or uses such minor to do or assist in any sexually explicit conduct shall be guilty of a felony when such person has knowledge that any such act is being photographed or filmed. Upon conviction thereof, such person shall be fined not more than ten thousand dollars, or imprisoned in the penitentiary not more than ten years, or both fined and imprisoned.
 

(b) Any person who photographs or films such minor engaging in any sexually explicit conduct shall be guilty of a felony, and, upon conviction thereof, shall be fined not more than ten thousand dollars, or imprisoned in the penitentiary not more than ten years, or both fined and imprisoned.
 

(c) Any parent, legal guardian or person having custody and control of a minor, who photographs or films such minor in any sexually explicit conduct or causes or knowingly permits, uses, persuades, induces, entices or coerces such minor child to engage in or assist in any sexually explicit act shall be guilty of a felony when such person has knowledge that any such act may be photographed or filmed. Upon conviction thereof, such person shall be fined not more than ten thousand dollars, or imprisoned in the penitentiary not more than ten years, or both fined and imprisoned.

61-8C-3. Distribution and exhibiting of material depicting minors engaged in sexually explicit conduct prohibited; penalty

Updated: 
July 23, 2024

(a) Any person who, knowingly and willfully, sends or causes to be sent or distributes, exhibits, possesses, electronically accesses with intent to view or displays or transports any material visually portraying a minor engaged in any sexually explicit conduct is guilty of a felony.
 

(b) Any person who violates the provisions of subsection (a) of this section when the conduct involves fifty or fewer images shall, upon conviction, be imprisoned in a state correctional facility for not more than two years or fined not more than $2,000 or both.
 

(c) Any person who violates the provisions of subsection (a) of this section when the conduct involves more than fifty but fewer than six hundred images shall, upon conviction, be imprisoned in a state correctional facility for not less than two nor more than ten years or fined not more than $5,000, or both.
 

(d) Notwithstanding the provisions of subsections (b) and (c) of this section any person who violates the provisions of subsection (a) of this section when the conduct involves six hundred or more images or depicts violence against a child or a child engaging in bestiality shall, upon conviction, be imprisoned in a state correctional facility for not less than five nor more than fifteen years or fined not more than $25,000, or both.
 

(e) For purposes of this section each video clip, movie or similar recording of five minutes or less shall constitute seventy-five images. A video clip, movie or similar recording of a duration longer than five minutes shall be deemed to constitute seventy-five images for every two minutes in length it exceeds five minutes.

Article 8d. Child Abuse

Updated: 
July 23, 2024

61-8D-3a. Female genital mutilation; penalties; definitions

Updated: 
July 23, 2024

(a) Except as otherwise provided in subsection (b) of this section, any person who circumcises, excises or infibulates, in whole or in part, the labia majora, labia minora, or clitoris of a female under the age of 18, or any parent, guardian or custodian, or person in a position of trust in relation to a child, of a female under the age of 18 who allows the circumcision, excision or infibulation, in whole or in part, of the female’s labia majora, labia minora, or clitoris, shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than two nor more than 10 years and fined not less than $1,000 nor more than $5,000.
 

(b) A surgical procedure is not a violation of this section if the procedure:
 

(1) Is necessary to preserve the health of the child on whom it is performed and is performed by a licensed medical professional authorized to practice medicine in this state; or
 

(2) The procedure is performed on a child who is in labor or has just given birth and is performed for legitimate medical purposes connected with that labor or birth by a licensed medical professional authorized to practice medicine in this state.
 

(c) A person’s belief that the conduct described in subsection (a) of this section: (1) Is required as a matter of custom, ritual or standard practice; or (2) was consented to by the female on which the circumcision, excision, or infibulation was performed shall not constitute a defense to criminal prosecution under subsection (a) of this section.

61-8D-5. Sexual abuse by a parent, guardian, custodian or person in a position of trust to a child; parent, guardian, custodian or person in a position of trust allowing sexual abuse to be inflicted upon a child; displaying of sex organs by a parent, guardian, or custodian; penalties

Updated: 
July 23, 2024

(a) In addition to any other offenses set forth in this code, the Legislature hereby declares a separate and distinct offense under this subsection, as follows: If any parent, guardian or custodian of or other person in a position of trust in relation to a child under his or her care, custody or control, shall engage in or attempt to engage in sexual exploitation of, or in sexual intercourse, sexual intrusion or sexual contact with, a child under his or her care, custody or control, notwithstanding the fact that the child may have willingly participated in such conduct, or the fact that the child may have consented to such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct, then such parent, guardian, custodian or person in a position of trust shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility not less than ten nor more than twenty years, or fined not less than $500 nor more than $5,000 and imprisoned in a correctional facility not less than ten years nor more than twenty years.
 

(b) Any parent, guardian, custodian or other person in a position of trust in relation to the child who knowingly procures, authorizes, or induces another person to engage in or attempt to engage in sexual exploitation of, or sexual intercourse, sexual intrusion or sexual contact with, a child under the care, custody or control of such parent, guardian, custodian or person in a position of trust when such child is less than sixteen years of age, notwithstanding the fact that the child may have willingly participated in such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct, such parent, guardian, custodian or person in a position of trust shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility not less than five years nor more than fifteen years, or fined not less than $1,000 nor more than $10,000 and imprisoned in a correctional facility not less than five years nor more than fifteen years.
 

(c) Any parent, guardian, custodian or other person in a position of trust in relation to the child who knowingly procures, authorizes, or induces another person to engage in or attempt to engage in sexual exploitation of, or sexual intercourse, sexual intrusion or sexual contact with, a child under the care, custody or control of such parent, guardian, custodian or person in a position of trust when such child is sixteen years of age or older, notwithstanding the fact that the child may have consented to such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct, then such parent, guardian, custodian or person in a position of trust shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility not less than one year nor more than five years.
 

(d) The provisions of this section shall not apply to a custodian or person in a position of trust whose age exceeds the age of the child by less than four years.

61-8D-6. Sending, distributing, exhibiting, possessing, displaying or transporting material by a parent, guardian or custodian, depicting a child engaged in sexually explicit conduct; penalty

Updated: 
July 23, 2024

Any parent, guardian or custodian who, with knowledge, sends or causes to be sent, or distributes, exhibits, possesses, displays or transports, any material visually portraying a child under his or her care, custody or control engaged in any sexually explicit conduct, is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not more than two years, and fined not less than four hundred dollars nor more than four thousand dollars.

Article 11. General Provisions Concerning Crimes

Updated: 
July 23, 2024

61-11-1. Classification of offenses

Updated: 
July 23, 2024

Offenses are either felonies or misdemeanors. Such offenses as are punishable by confinement in the penitentiary are felonies; all other offenses are misdemeanors.

The word “penitentiary” as used in this section shall mean and include any and all institutions provided by the State for the confinement of persons sentenced to confinement in the penitentiary, notwithstanding that transfers of such persons from any one of such institutions to another may be authorized.

State Court Rules

Updated: 
July 23, 2024

Rules of Practice and Procedure for Domestic Violence Civil Proceedings

Updated: 
July 23, 2024

Rule 8. Filing of Petitions and Other Pleadings

Updated: 
July 23, 2024

(a) Commencement of Action. To commence an action for a protective order, a verified petition shall be filed in the magistrate court.
 

(b) Petition. The petition shall contain a short and plain statement of the facts showing that the petitioner is entitled to relief, and it shall contain a demand for the relief the petitioner seeks.
 

(c) Firearms. The petition shall contain information regarding the use, possession and ownership of firearms by the respondent which shall include a description and location, if known by the petitioner, of each firearm owned and/or possessed by the respondent.
 

(d) Pleadings Filed After Original Petition. All pleadings filed after the original petition, except as provided in Rule 9 herein, including petitions for criminal contempt shall be filed with the circuit clerk. Misdemeanor complaints for violation of protective orders shall be filed in the magistrate court
 

(e) Other Required Documents. The original petition, and petitions for contempt or modification of a protective order, shall be accompanied by a completed domestic violence civil case information statement.
 

(f) Petitioner’s Identifying Information. At petitioner’s request, the magistrate court shall immediately seal within the file the portion of the domestic violence civil case information statement and any other document containing the address or other identifying information for the petitioner such as the petitioner’s phone number, facsimile number, or e-mail address. The petitioner’s identifying information shall remain sealed in the court file unless the court in a final hearing orders the release of the information and makes a finding that the release of the petitioner’s identifying information does not increase the risk of harm or the threat of harm to the petitioner or other protected individuals, provided, however, the court may provide access to the petitioner’s identifying information to a law enforcement agency.

Rule 23a. Children and Incapacitated Family or Household Members as Parties

Updated: 
July 23, 2024

(a) Individuals Filing on Behalf of a Person in Need of Protection. If an adult family or household member is filing on behalf of a child or physically or mentally incapacitated family or household member and not requesting protection for himself or herself, then the petitioner shall be the child or physically or mentally incapacitated family or household member in need of protection. The adult family or household member shall be recognized on the petition as the parent/guardian or next friend. The adult family or household member shall attend any hearing scheduled to protect the interest of the child or physically or mentally incapacitated family or household member.

(b) Child as a Petitioner. An individual under 18 years of age may file a domestic violence petition on his or her own behalf without a parent/guardian or next friend. If a child files a petition without a parent/guardian or next friend, the magistrate shall immediately appoint a guardian ad litem to protect the interest of the child: and this appointment shall be made even if an emergency protective order is denied since that denial may be appealed. The magistrate may also appoint a guardian ad litem in cases in which a child files a petition with a parent/guardian or next friend.

(1) Magistrate Court Proceeding. If the child is the petitioner, and the respondent is a parent or household member, making it unsafe for the child to return to his or her residence, the magistrate shall immediately appoint a guardian ad litem for the child. If the magistrate has reasonable cause to suspect that the child is abused or neglected or observes the child being subjected to conditions that are likely to result in abuse or neglect, the magistrate shall immediately make a child abuse and neglect referral to Child Protective Services of the Department of Health and Human Resources. Further, if the magistrate is unable to locate a responsible and appropriate family member or adult into whose custody the child can be delivered, the magistrate shall notify Child Protective Services of the Department of Health and Human Resources, which shall immediately respond to assist the magistrate in identifying a responsible and appropriate family member or adult into whose custody the child can be delivered and, if determined by the Department to be necessary, take emergency custody and/or file a petition in accordance with West Virginia Code § 49-6-3.

(2) Family Court Hearing. The family court at the final hearing shall ensure that the child or incapacitated adult has a parent/guardian, next friend, and/or guardian ad litem representing his or her interests prior to conducting an evidentiary hearing. If the child or incapacitated adult is not properly represented, the family court shall continue the hearing, provide for the safety of the child or incapacitated adult and appoint a guardian ad litem to represent the child or incapacitated adult. If the family court finds that the child cannot return to his or her residence because there exists imminent danger to the physical well-being of the child, as defined in W. Va. Code § 49-1-3(g), and no responsible and appropriate family member or adult can be found into whose custody the child can be delivered, the court shall immediately notify Child Protective Services of the Department of Health and Human Resources. Upon notification, Child Protective Services shall immediately respond and assist the family court in locating a responsible and appropriate family member or adult into whose custody the child can be delivered and, if determined by the Department to be necessary, take emergency custody and/or file a petition in accordance with West Virginia Code 49-6-3.

(c) Child as a Respondent. An individual under 18 years of age may be made a respondent in a domestic violence proceeding. The magistrate shall immediately appoint a guardian ad litem to protect the interests of the child.

(1) Magistrate Court Proceeding. If the magistrate grants an emergency protective order against a child, and the petitioner is a parent or other household member residing with the child, then, pursuant to W. Va. Code § 48-27-403(h), the petition resulting in the emergency protective order shall also be treated as a juvenile delinquency petition under W. Va. Code § 49-5-7. The magistrate shall follow the procedures detailed in Rule 15 of the Rules of the Juvenile Procedure.

(2) Family Court Hearing. If a child is the respondent, the petitioner is a parent or other household member residing with the child, and an emergency protective order was issued by the magistrate court, the family court entering a domestic violence protective order shall refer the issues of custody, visitation, and support to the circuit court hearing the related delinquency case. The family court retains jurisdiction to issue a domestic violence protective order to protect the safety of the parent or other household member. If the family court issuing a protective order determines during the final hearing that the issue of the child’s temporary custody or placement is yet to be addressed by the circuit court in the delinquency case, that the temporary custodial arrangements with a responsible relative or other adult made at the time the emergency protective order was issued are no longer available or appropriate, that no other responsible and appropriate relative or adult can be found into whose custody the child can be delivered, and the circumstances present an imminent danger to the physical well-being of the child, as defended in W. Va. Code § 49-1-3(g), or to others if released, the court shall take one or both of the following measures based upon the circumstances presented: 1) Notify the Youth Services Division of the Department of Health and Human Resources, which shall immediately respond to assist in locating a responsible and appropriate relative or other adult into whose custody the child can be delivered; and 2) Notify the sheriff or other law-enforcement official and direct that the child be taken into custody and presented without unnecessary delay before a magistrate or circuit judge for a detention hearing pursuant to W. Va. Code § 49-5-8a.