An individual in West Virginia who wants to seek protection from a member of their family or household, or from a person with whom they have a romantic relationship or a child, should file a petition for a Domestic Violence Protective Order (DV Protective Order or DVPO). A petitioner who is seeking protection from a party who is not a family member or household member and with whom they do not have a romantic relationship should file a Personal Safety Order (PSO). An individual should file a petition for a DVPO or PSO in a magistrate court. A party does not need a lawyer to represent them in a domestic violence or personal safety-related case.
Definition of Magistrate Courts
In West Virginia, a magistrate court is a trial court with limited jurisdiction. It hears only certain types of cases, including domestic violence and physical safety cases. There are at least two magistrates in every county and 10 in the largest county. Circuit Courts hear appeals of magistrate court cases.
Basics for DV Protective Orders
An individual should file a petition for a DV Protective Order in the county where the domestic violence occurred, where either the petitioner or respondent is living temporarily or permanently, or where the parties last lived together, if they are married to each other. A magistrate will hold an emergency hearing after the petition is filed. The magistrate can hold a hearing on a domestic violence petition 24 hours a day. If the magistrate finds evidence of immediate and present danger to the petitioner or minor children, they will issue a temporary Emergency Protective Order (TEPO).
The TEPO is in effect until the Family Court enters a protection order in the case. A Family Court may issue a 90-day, 180-day, one year or longer DV Protective Order. The petitioner should describe the dates and events of recent and past abuse as clearly as possible. If a party disagrees with the Family Court’s decision, they can appeal the decision to the Circuit Court within 10 days from the date the judge heard the case.
Fee Waiver for DVPO
If the court grants a protective order, the petitioner will not have to pay a filing fee. If the court does not grant a protective order, there is a $25 fee for filing. A petitioner may request a fee waiver. They should bring proof of their income to the Circuit Clerk’s office and make the request.
Relief Provided by DVPO Under West Virginia Law
A DV Protective Order offers some mandatory relief, including an order not to abuse, stalk or cause fear of bodily injury to anyone named in the petition and an order for the abuser not to possess a firearm or ammunition while the order is in effect. A petitioner may request additional permissive relief, including an order that the abuser not call, contact or communicate with anyone listed in the petition and an order that the abuser not enter any school, business or place of employment of anyone listed in the petition.
The court may also give the petitioner temporary possession of the home the petitioner and abuser shared, require the abuser to attend a domestic violence treatment program, order that any property subject to court action be frozen and grant the petitioner temporary custody of minor children. If the petitioner is given child custody, they may also request that the abuser receive supervised or no visitation, that the abuser pay child support, alimony and cover medical expenses and that the petitioner be granted temporary possession of any animals.
Basics for Filing PSOs
An individual should file a PSO petition in the county where they or the abuser live or where the abuse occurred. A petition for a PSO should state how the abuser committed a sexual offense or attempted sexual offense, an act constituting stalking, or made repeated credible threats of bodily injury. A magistrate first decides whether to issue a temporary PSO. If the court issues a temporary PSO, a copy of the temporary court order and petition must be served upon the respondent. The temporary order must set a date and time for a final hearing. A temporary PSO is effective until 10 days after service of the order.
A final PSO hearing date should occur no more than 10 days after the respondent receives the papers. A petitioner who has been denied a temporary PSO or a final PSO can appeal to the Circuit Court. A magistrate can extend the temporary personal safety order to allow more time for service or for another good cause.
A final PSO may be in effect for up to two years. The final PSO should state the length of time it will be in effect.
Relief Provided by PSO
Through a PSO, the court can order the abuser not to have contact with the petitioner and not to commit or threaten to commit a particular action. The court can also order the abuser not to enter the residence of the petitioner and to also stay away from the petitioner’s workplace or residence. The court can prohibit the abuser from possessing a firearm if a weapon was used or threatened to be used in the commission of the offense, if the abuser has violated any previous order or if the abuser has been convicted of an offense involving the use of a firearm.
Penalties for Violating an Order Under State Law
A person who violates either a PSO or a DV Protective Order will be guilty of a misdemeanor. The penalty for a first offense is up to 90 days in jail and a fine up to $1,000. The penalty for a second or subsequent offense is up to one year in jail and a fine up to $2,500.
Attending the Hearing
Hearings and proceedings for PSOs and DVPOs are private. Only parties who are named in the petition may attend. A petitioner may have a third party sit with them in the courtroom during the hearing as long as the petitioner wants them to be present and the person’s behavior is not disruptive. The person cannot speak, act as the petitioner’s attorney or engage in actions to help the petitioner.
Information Specific to COVID-19
During the COVID-19 pandemic, local legal aid offices have been closed to walk-in clients. Legal aid attorneys are present to assist victims. A person in need of help should call Legal Aid of West Virginia’s hotline at 866-255-4370 or apply online.
- West Virginia Judiciary: Rules of Practice and Procedure for Domestic Violence
- West Virginia Judiciary: Domestic Violence Forms
- West Virginia Code: Section 48-27-403 Emergency Protective Orders of Court, Hearings, Persons Present
- Legal Aid of West Virginia: Personal Safety Orders
- Legal Aid of West Virginia: Domestic Violence Protective Orders
- West Virginia Judiciary: Personal Safety Forms
- West Virginia Judiciary: Magistrate Courts - Trial Courts of Limited Jurisdiction
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.