Everyone deserves to feel safe at home, but sometimes the people we thought we could trust will hurt or scare us. It is never acceptable for a member of your family or household to hit you, threaten you, confine you in an area, or make you afraid that he or she will hurt you. The law calls this behavior domestic violence. To help protect you from domestic violence, West Virginia law gives you the ability to file a family protective order.
A protective order can help you when a family or household member does any one (or more) of these things:
•Tries to cause you harm, whether it is intentional or reckless. It makes no difference whether that person uses a weapon or not;
•Puts you in fear of bodily harm;
•Makes you fear physical harm by threatening, harassing, or psychologically abusing you;
•Forces you to have sex, makes you touch him or her in a sexual way, or touches you in a sexual way against your will; or
•Holds, confines, detains, or abducts you against your will.
A protective order can help protect you by forbidding another person from abusing, harassing, stalking, threatening or intimidating you or your children, or doing other things that would place you or your children in reasonable fear of bodily injury.
Family protective orders are available when the person who is hurting or scaring you is someone in your family or household. A “family or household member” is a person who is now (or used to be): (1) your spouse, (2) a sexual or intimate partner; (3) someone you are dating (not just a causal or business acquaintance); (4) someone you live with; (5) someone you had a child with (whether or not you were married); or (6) many people you are related to.
In addition to protecting you from harassment, the protective order can require other things that might help you. For instance, the order may give you temporary custody of your children or animals. The order may state that you can have possession of your home and your family member must find another place to stay. The order may forbid an abusive person from coming near your home, work, or places that you frequent or even require that person to undergo counseling. Finally, an order may prohibit the abuser from contacting you by phone or verbally harassing you in public places, as well as protect you in other ways that the court sees as necessary.
You must first file a petition to get a family protective order. Your local courthouse will have forms you may fill out in order to do this. Any victim of abuse, or any family or household member on behalf of a minor child or a physically or mentally disabled victim of abuse, can file the petition. There is no up-front court fee for filing. If you cannot afford the fees that are due when the matter is brought before the court for a final resolution, you can ask for the fee to be waived by filling out a Pauper’s Affidavit, which is a form you can get from the court clerk.
If the court finds that it is clear you were abused, the court will issue a temporary protective order and set a hearing date. If the court is unable to determine whether the abuse has clearly occurred, then the court will just set the hearing date.
If a temporary order is granted, it is effective immediately. It will state that the abuser is not to make contact with you until the hearing date. The hearing date must be set within five days by the court. The abuser must get an official notice of the temporary order and the hearing date if he or she is not present when you file the petition. The police will take the temporary order and the notice of the hearing date to the abuser. If the police cannot reach the abuser, the hearing date will still occur as scheduled, at which point the matter will be continued until he or she can be officially notified. If you, the petitioner, do not show up for the hearing, the court may drop the matter.
At the hearing, you will have to produce evidence that you were abused, confined, or threatened. If the judge or magistrate believes that it is more likely than not that you have been abused, he or she will issue a final family protective order. Once issued, it is important to keep your protective order with you at all times.
A family protective order is issued for a specific time period and may be extended at the court’s discretion. If the abuser violates the protective order, he or she can be arrested. You can either call the police if the abuser is violating the order, or you can go to the courthouse and file a criminal complaint.
If you are the victim of domestic violence, you have many options. You may report abuse or neglect to the West Virginia Elder Abuse Hotline at 1 (800) 352-6513. If you need assistance to file for a family protective order, you can contact an attorney with Senior Legal Aid, another attorney, or the local shelter service in your area. The Elder Abuse Hotline might have contact information for your local shelter service.
If abuse is immediate, you can call the police and ask them to take you to a shelter or straight to court to file a petition for a family protective order. If the abuse is not immediate, you can go to the circuit or magistrate court as soon as you are able to file a petition for a protective order. If you are ever in an emergency, call 911.
West Virginia Elder Abuse and Neglect Hotline 1 (800) 352-6513
For more information, see: W. Va. Code §§ 48-27-101 to -209 (2015); W. Va. Code §§ 48-27-304 to -308 (2015); W. Va. Code § 48-27-401 (2015); W. Va. Code §§ 48-27-501 to -505 (2015); W. Va. Code § 48-27-702 (2015); W. Va. Code §§ 48-27-901 to -903 (2015); W. Va. Code §§ 48-27-1001 to -1004 (2015); WV Coalition Against Domestic Violence, http://www.wvcadv.org (last visited June 11, 2015). WV Dept. of Health and Human Resources Adult Protective Services, http://www.wvdhhr.org/bcf/children_adult/aps/report.asp (last visited June 11, 2015); Domestic Violence Protective Order Stages, http://www.courtswv.gov/lower-courts/pdfs/domviolence.pdf (last visited June 11, 2015).