Domestic Violence Protective Orders: Frequently Asked Questions

Last Updated On: 2/2/2018 5:39:46 PM

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What is domestic violence?

  1. Causing or attempting to cause physical harm to another;
  2. Placing another in fear of physical harm;
  3. Creating fear of physical harm by harassment, psychological abuse or threatening acts;
  4. Committing sexual assault or sexual abuse as defined by West Virgina law; or
  5. Holding, confining, detaining or abducting another person against that person’s will.

Who can file for protection from domestic violence?

  1. The person asking for protection.
  2. Any of the victim’s family members who are 18 or older.
  3. Anyone that lives in the victim’s home that is 18 or older.
  4. Anyone who was a witness to domestic violence and has been abused, threatened or harassed as a result.

What is the cost?

  • If a protective order is granted, there is no cost for filing.
  • If a protective order is not granted, a court fee of $25 will be charged.
  • You may request a Fee Waiver. Bring proof of your income to the Circuit Clerk’s office and ask for a Fee Waiver. If you meet the income requirements, you will not be charged, even if an order is not granted. Go here for more information about asking for a Fee Waiver.

How do I get a protective order?

A protective order case starts with filing a petition in magistrate court. The petition is a form available at the magistrate’s office. The person who is seeking protection and files the petition is called the petitioner. The person who is required to respond to the petition is called the respondent. The petitioner and respondent are called the parties to the case.

What do I put in the petition?

When filling out the petition, the petitioner should describe what happened as clearly as possible. The petitioner should also include the dates when abuse happened. It must include the most recent events but can include information about past history.

A domestic violence advocate may help a petitioner complete the petition and understand his or her rights. To find a domestic violence advocate in your area, call 1 (800) 799-SAFE (7233) or go here.

What do you need to file?

To file for a Protective order, you need some information about the victim (petitioner) and the abuser (respondent).

  1. Names and addresses.
  2. Names of Children and addresses.

(Other Information must be answered to the best of your knowledge)

How the protective order work?

A Domestic Violence Protective Order has some MANDATORY RELIEF. This means, the court must:

  1. Order the abuser (respondent) not to abuse, harass, stalk, threaten, intimidate, or cause fear of bodily injury to anyone named in your petition.
  2. Tell the abuser that he/she may not possess a firearm or ammunition while the order is in effect.
  3. Tell the abuser that the order is effective in every county of the state.
  4. Inform the abuser that violating the terms of the order may be a criminal offense.

What else can you ask for?

In your petition, you may also ask the court to give you PERMISSIVE RELIEF. This means you may ask the court to take some additional action.

The court may ask you to give proof that any additional action is needed.

What is permissive relief?

You may ask for the following types of permissive relief:

  1. Order the abuser not to call, contact, or communicate with anyone listed in your petition.
  2. Order the abuser not to enter any school, business, or place of employment of anyone listed in your petition.
  3. Give you temporary possession of the home which you and the abuser shared.
  4. Allow law enforcement to enter your home to enforce the protective order.
  5. Allow you to get your personal items from the abuser’s property.
  6. Require the abuser to attend a domestic violence treatment program.
  7. Order that any property subject to court action be frozen.
  8. Grant temporary custody of minor children.
  9. If you are given custody, you may also ask:
    • for the abuser to receive supervised or no visitation
    • for the abuser to pay child support, alimony, and cover medical expenses.
  10. Grant temporary possession of any animals.

Who can ask for a protective order?

A petition may be filed by:

  1. A person seeking protection from domestic violence or abuse; or
  2. An adult family or household member on behalf of a child or an adult who is physically or mentally unable to file; or
  3. Someone who saw or reported domestic violence and, as a result, has been abused, threatened or intimidated.

Can I get a protective order against anyone?

To get a protective order, the petitioner and respondent must be family or household members, which include persons with:

  1. current or past partner relationships (married, dating, living together, parents of a child, roommates, etc.);
  2. close family relationships (parents, grandparents, siblings, aunts, uncles, etc.); or
  3. a combination of family and partner relationships.

The petitioner must state in the petition that the respondent committed domestic violence or abuse.

Where do I file the petition?

A petition may be filed in the county where:

  1. The domestic violence occurred; or
  2. Either the petitioner or respondent is living, temporarily or permanently; or
  3. The parties last lived together, if the parties are married to each other.

What is an emergency hearing?

Once the petition is filed, the magistrate will hold an emergency hearing. Magistrates are available to hear domestic violence petitions 24 hours a day. A domestic violence advocate may attend the hearing with a petitioner. However, the advocate may not speak for the petitioner in court. At the hearing, the magistrate will ask the petitioner questions. If the magistrate finds evidence of immediate and present danger of abuse to the petitioner or minor children, the magistrate will give the petitioner an Emergency Protective Order. The Emergency Protective Order is in effect until the Family Court enters an order in the case.

What is an emergency protective order?

The Emergency Protective Order will require the respondent to stop abusing, harassing, stalking, threatening or otherwise intimidating the petitioner. The order may also grant other requests made by the petitioner.

How does the emergency protective order work?

At the end of the hearing, the Magistrate will do the following:

  1. Give a copy of the Emergency Protective Order to the petitioner,
  2. Have law enforcement serve (notify) the respondent by delivering a copy of the petition and the Emergency Protective Order to the respondent, and
  3. Deliver a copy of the order to all local law enforcement agencies.

The date and time of the Domestic Violence Protective Order hearing in family court will be listed on the first page of the Emergency Protective Order.

What happens if the magistrate does not give me an emergency protective order?

If the magistrate does not give the petitioner an Emergency Protective Order, the petitioner may appeal to family court. Appeal forms are available at the magistrate’s office. The appeal must be filed in the magistrate’s office no later than five days after the magistrate denied the protective order. The family court will hold a hearing on the appeal within two weeks. The respondent may not appeal the issuance of an Emergency Protective Order.

What is a temporary emergency protection order?

If a divorce is pending between the parties and a temporary divorce order is in effect when the domestic violence petition is filed, then the magistrate may only consider incidents that happened after the entry of the family court temporary divorce order. In these cases, the protective order is called a Temporary Emergency Protective Order. The Temporary Emergency Protective Order is in effect until the Family Court enters an order in the case.

How can I prepare for the final hearing in Family Court?

To prepare for the hearing, a petitioner should gather evidence, like photographs, medical reports, police reports, and text messages. Also, the petitioner can contact witnesses and ask them to come testify. Witnesses can be people involved in the situation, like the petitioner. Witnesses can also be other people who have direct information about the case, like police officers . Witnesses should be people who saw what happened with their own eyes or heard it happen with their own ears. If you need you need a person to testify as a witness but that person says they will not come to court, you may need a “subpoena.” A subpoena is a written command by the court that the person with the papers or pictures must give them to you.

What happens at the Final hearing if the respondent hasn’t been served?

Service of Process (Notifying the Respondent)-If law enforcement does not serve (notify) the respondent with the Emergency Protective Order by the family court hearing date, the judge will continue (reschedule) the hearing until a later date so that law enforcement may try to serve the respondent again. If the hearing is rescheduled, the Emergency Protective Order will remain in effect until the judge hears the case.

If law enforcement cannot serve the respondent in person, the family court may ask the circuit clerk to publish a notice of the family court hearing in a local newspaper. Once the notice has been published, the judge will hear the case. The petitioner will not be required to pay any publication costs.

What happens at the final hearing if the respondent has been served?

At the final hearing, the judge will ask the petitioner to tell what happened. Then the respondent may testify. The petitioner or respondent may bring any witnesses (best to limit to two or three) and evidence (pictures, medical or police records, etc.) to the final hearing.

Do I have to have a lawyer?

Lawyers are often hired to represent parties in domestic violence cases. However, no one is required to hire a lawyer and many people represent themselves in court. Domestic violence advocates or other support persons may accompany a party to the hearing. However, if the support person who comes to the hearing is also a witness, the witness may be asked to wait outside the courtroom until it is time to testify.

What happens if the person who is abusing me doesn't attend the hearing?

If the respondent (abuser) is served, but does not attend the family court hearing, the judge will hold the hearing without him and may enter a Domestic Violence Protective Order against him. If the judge grants a Domestic Violence Protective Order and the respondent is not in court, the court will have law enforcement officers serve (deliver) a copy of the Domestic Violence Protective Order on the respondent.

What happens if the person who is being abused does not attend the hearing?

If the petitioner does not attend the family court hearing, the judge may dismiss the petition.

What is a domestic violence protective order?

If the judge finds that the claims in the petition were proven, the judge will give the petitioner (person being abused) a Domestic Violence Protective Order, effective for 90 or 180 days. The Domestic Violence Protective Order will require the respondent (abuser) not to abuse, harass, stalk, threaten or intimidate the petitioner. The Judge may also (1) give a party temporary possession of a car and/or a home, (2) decide who will have temporary custody of, or visitation with, the parties’ children, and/or (3) order a party to pay child support or other support payments. In addition, the respondent will be ordered to pay court costs ($50 plus service fees) at the circuit clerk’s office.

Can the domestic violence protective order be extended without going back to court?

The petitioner may have the Domestic Violence Protective Order extended for ninety days without going back to court. To extend the Domestic Violence Protective Order, the petitioner must go to the circuit clerk’s office and fill out a Request to Extend Protective Order before the original protective order expires.

If the parties have a protective order in effect, and one of the parties files another family court case involving the same parties, then the protective order may be automatically extended by filing a Notice of Automatic Extension of Protective Order at the circuit clerk’s office. The protective order will be extended until the judge enters another order. At the first hearing, the Petitioner can ask the judge to extend the first protective order until the entry of a final order.

What happens if the judge does not give the person being abused a domestic violence protective order?

If the judge does not give the petitioner a Domestic Violence Protective Order, the case is over unless the petitioner files an appeal.

Is there anything I can do if I don't like the judge's decision?

Either party may appeal the family court’s decision to the circuit court. The appeal must be filed in the circuit clerk’s office within ten days from the date the judge heard the case. Appeal forms are available at the circuit clerk’s office.

Helpful Links for Additional Information

West Virginia Coalition Against Domestic Violence - WVCADV is a coalition of all the local domestic violence shelter programs in West Virginia. This site lists all the DV shelters in West Virginia and how to contact them. The WVCADV website also has information about domestic violence, and some information about West Virginia law dealing with domestic violence.

National Domestic Violence Hotline - Use this website to gather information about domestic violence and about what the National Domestic Violence Hotline does to help women, children and men who are in abusive relationships. This site provides information about how to recognize that you or someone you know may be experiencing an emotionally, verbally or physically violent relationship.

WomensLaw.Org-  This website provides information about how to get a protective order.

This is general legal information. For guidance about your situation, talk to a lawyer.