Category: Family Law

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).

In some situations, yes. West Virginia law states that relatives of indigent persons must provide support for necessities and burial costs. However, a relative is not required to let an indigent person live in his or her home.  

The law also creates a priority listing for which relatives of an indigent person are liable for support. Children of an indigent parent are first in priority. The priority list is as follows: 1st, Children; 2nd, Father; 3rd, Siblings; 4th, Mother. When a relative is only able to partially contribute, the Department of Health & Human Resources (DHHR) may go down the priority list to collect the rest of what is necessary from other relatives.  

If a child assumes responsibility for a parent in a written contract to a third party, those obligations are enforceable. In addition, if an adult relative is a caregiver sharing actual physical possession or care of the individual on a full-time or temporary basis, the relative may not neglect the incapacitated individual, regardless of whether the relative is under contract or not. Among other things, neglect includes the failure to provide the necessities of life to an incapacitated adult. 

The DHHR Division of Human Services is responsible for enforcing this law. West Virginia does not provide criminal penalties for failure to support an indigent relative. In addition, statutes similar to West Virginia’s statute have been criticized and are said to be rarely enforced. However, when a care giver neglects or abuses an incapacitated adult, whether or not the care giver is under a contract to provide support, criminal penalties are enforced. 

Federal law allows income of a spouse or parent to be considered in determining eligibility for Medicaid. Federal law does not allow the state to consider the income of any other relative in determining your Medicaid eligibility. As such, children, siblings and other relatives of an applicant cannot have their income counted against the applicant. 

However, when a relative actually does provide support to an indigent person, that support may be considered in determining eligibility for public programs. In such cases, the actual support provided is counted, not the relative’s total income. 

For more information, see: 42 U.S.C. §1396a(a)(17)(D) (2015); W. Va. Code §61-2-29 to -29b (2015); W. Va. Code § 9-5-9 (2015); W. Va. Code § 9-5-18 (2015); Joan M. Krauskopf et al., Elder Law: Advocacy for the Aging § 25.48 (2nd. ed. 1993).

Probably. The West Virginia Code offers a preference to grandparents when deciding upon an adoptive placement for children whose parents’ rights have been terminated. A grandparent who is interested in adopting his or her grandchildren under these circumstances must be determined by DHHR to be suitable as adoptive parents. Although there is a presumption that placement with a grandparent is in the child’s best interest, this does not mean that placement with a willing grandparent is an absolute certainty. The home evaluation, which includes a series of home visits and interviews by a licensed social worker, will determine the safety and suitability of the grandparents’ home. If DHHR determines that the grandparents’ home is suited to the best interests of the child, they are to be offered the placement before any other adoptive parents are considered. 

For more information, see: W. Va. Code § 49-3-1(a)(3) (2015); Napoleon S. v. Walker, 217 W. Va. 254, 256 (2005); WVDHHR Adoption Policy §7.3.

Unfortunately, you do not necessarily have a legal right to see your grandchildren, but you have a legal right to petition the court for visitation privileges. This right was granted as of June 13, 1998, when the West Virginia State Legislature significantly expanded grandparents’ visitation rights.  

The 1998 statute eliminates preconditions for a grandparent applying for visitation with a grandchild. This means that visitation can be granted even when the parents of the grandchild are not separated or when the grandparent is not related to the custodial parent.  

The court considers many different factors and situations when deciding whether to accept the application and grant grandparent visitation. A grandparent can receive ordered visitation if the grandparent has been a significant caretaker of the child, regardless of whether the child lived in the grandparent’s home or not. Further, if the child has lived in the grandparent’s home, it is irrelevant whether the parent or parents lived in the grandparent’s home at the same time as the child. 

The court will typically not grant visitation rights to a grandparent when the parent to whom the grandparent is related has not extended those same rights to that grandparent. However, a grandparent may be able to receive visitation if he or she can prove through clear and convincing evidence that the it would be in the best interest of the child and would not substantially interfere with the parent/child relationship. If those two criteria are not met, the court will probably not grant visitation. Courts are generally unwilling to reduce the time a parent has with the child by awarding visitation to a grandparent who has been denied visitation by the parent. 

The word “grandparent” can mean a few different things. A grandparent can be a biological parent of the minor child’s parent, or someone who is now or used to be married to the biological parent of the minor child’s parent. Also, anyone who has been awarded custody of a child is considered to be a parent. A child is defined as a person under the age of 18 years who has not been married or otherwise emancipated. 

When the Department of Health and Human Resources (DHHR) is given custody of a minor child and is seeking adoptive parents, DHHR must first consider the suitability and willingness of a grandparent to adopt the child. If the Department determines that the grandparents would be suitable adoptive parents, DHHR must offer placement to the grandparents before considering any other prospective adoptive parents. 

For more information, see: W. Va. Code §§ 48-10-101 to -802 (2015); W. Va. Code § 49-3-1(a)(3) (2015); In re Nearhoof, 178 W. Va. 359, 359 S.E.2d 587 (1987), In Re Hunter H., 231 W. Va. 118, 744 S.E. 2d 228 (2014).