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Law Line - Domestic Violence

These messages only provide general information. If you have questions about your own situation, you should talk to a lawyer. For information about applying for Legal Aid, go to the Apply for Help page.

What is domestic violence?

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West Virginia law defines Domestic Violence using five alternatives.

  1. Physical harm
  2. Reasonable fear of physical harm
  3. Harassing acts or psychological abuse which causes fear of actual physical harm
  4. Sexual abuse or assault, or
  5. Being held, confined or detained someplace against your will.

If you cannot prove one of these things, you will not get a protection order.

Can I get a protection order for my child? Yes, but the requirements are the same. You have to show that someone caused physical injury or reasonable fear of physical injury to the child; or sexually assaulted the child; or held, confined or detained your child against their will.

Are name calling or mean comments domestic violence? No. Name calling and mean words may be mentally hurtful. They may be insulting. They may be offensive. But that’s not enough. That is not “domestic violence.”

My ex is on drugs, can I get a domestic violence protection order? Not necessarily. A person’s drug use by itself is not domestic violence. You would also have to show that the drug use causes physical injury, or reasonable fear of physical injury, or sexual abuse, or confinement.

My ex won’t let me see my child, is this domestic violence? No, simply keeping a child away from the other parent is not domestic violence. You cannot use a domestic violence case as a quick way to deal with a child custody dispute. If there is domestic violence as a part of keeping the child away from you, then you can get a protection order. The court can address custody in the protection order. But you have to show more than your ex keeping the children away from you.

If you feel your child is in danger, you may need to file a child custody case in Family Court. You can ask the court for an expedited hearing or contact the police or child services. You may also talk to the local domestic violence shelter about your case.

For more information about domestic violence, read this article.

How to get a Domestic Violence Protective Order

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A Domestic Violence Protective Order is an order that keeps a family member away from you because of threats or physical abuse.

How can I get a protective order? The first step is to go to Magistrate Court. Fill out a form for an Emergency Protection Order. You will have to put down what the other side has done that makes you afraid for your safety. Then a Judge or Magistrate will talk with you. The court will decide whether the things that have happened meet the law’s definition of “domestic violence.”

In which county can I file for a protective order?

You can file:

  • in the county where the domestic violence happened,
  • or in the county where the other party lives,
  • or in the county where you live.

If there has been “domestic violence” the Court will give you a temporary emergency protection order. This will keep the other party away from you until a hearing is held in Family Court. The final hearing usually happens in about 1 to 2 weeks. The emergency order can also address other things, like emergency child custody and which side gets to stay in the home temporarily.

If your emergency petition is denied, you can appeal to Family Court. The appeal has to be filed within 5 days.

If the Emergency Protection Order is issued, you will be given a copy. The Sheriff’s office will serve the Emergency Order on the other side. The Order will state the date and time of the Final Hearing in Family Court.

What happens at the Final Hearing?

You must prove that the other party did the things that make you afraid for your safety. Think about witnesses, pictures, emails, text messages, phone recordings, police reports, or medical reports. Bring these with you to the hearing. The Court will not have them unless you bring them.

A Final Domestic Violence Protection Order is granted for either 90 days or 180 days. While the order is in effect, the other party is not allowed to be around you. The other side also cannot have guns while the order is in effect.

If the final protection order was denied you can appeal to Circuit Court. The appeal must be filed within 10 days. There are appeal forms at the clerk’s office.

For more information about domestic violence, read this article.

Who can file for a Domestic Violence Protective Order?

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You can get a domestic violence protection order against a “household member” or a “family member.” You cannot get a domestic violation protection order against someone who does not fit in one of those two categories. But the law includes a whole lot more people in those categories than you might realize.

It’s pretty obvious that someone you live with is a “household member.” So married spouses living together are certainly included. And unmarried partners living together are also included. Married or not married doesn’t matter.

Also, a “household member” can include someone who was just a “roommate.” Doesn’t have to be someone you were in a dating or romantic relationship with.

Beyond that, “household member” can also include people that you never lived with. Someone you dated. Or someone you had sex with. Or someone you had a child with.

Even if you never lived with them, people you dated, had sex with, or had a child with will all count as household members.

The term “family members” includes a lot of people, also, because they don’t have to be living with you. The most obvious examples are your children, or your parents. Your grandparents and grandchildren are included. Your aunts and uncles are included. Your nephews and nieces are included. Your first and second cousins are included. And this includes relations by marriage, such as your in-laws or your step family. All these people are “family members.” Doesn’t matter whether they ever lived with you or not.

Also, you can get a protection order against a family member of a household member. Even though you are not related to that person, and never lived with that person.

Here’s an example. Suppose the father of the person you used to date is now making threats against you. You can get a protection order against him. The father is a family member of the person you dated. Doesn’t matter that you are not related to the father. Or that you never lived with the father.

The form you fill out to get a protection order will help you be clear about these categories. There is a list of all the possible relationships that can fit in the categories. You just check any box that fits the abuser: spouse, ex-spouse, person you dated, father of person you dated, whatever.

Finally, in some circumstances you can file for a protection order to protect another person. This could be a child, or grandchild, or a disabled adult. In that situation the abuser has to be a family or household member of the victim. Doesn’t matter whether the abuser is a family or household member of yours.

For more information about domestic violence, read this article.

DVPO Relief

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You are a victim of domestic violence. You file a case to get a protection order. The judge finds that there has been domestic violence, and is ready to give a final protection order. What protections can the court include in the order to help you?

First, there are five protections that have to be in every final domestic violence protection order.

  1. The abuser is ordered not to do anything to threaten or abuse you, or other people protected by the order. The law uses several different words to make sure it covers all the possibilities. The abuser cannot abuse, or harass, or stalk, or threaten, or intimidate. The abuser cannot do anything that would put you or your children “in reasonable fear of bodily injury.”
  2. The abuser cannot possess a gun or ammunition while the order is in effect.
  3. The abuser can go to jail if he or she is caught with a gun or ammo while the order is in effect.
  4. The Protection Order is in effect in every county in the whole state, not just the county where you got it.
  5. Finally, the order will say that if the abuser violates the order, the penalty could be up to one year in jail AND a fine of up to $2,000.

Those five protections are in every final domestic violence protection order. You don’t have to ask for them specifically. If a final protection order is granted, these five protections will be included.

On top of those five automatic things, you can ask the court for other protections. The judge will decide whether to these are needed or not. There are a lot of possibilities.

These are the most common types of relief in protection orders. But other things are possible. Remember, the point of a protection order is to keep you safe while the DVPO is in effect. If there is something else that you would like the Judge to order because you believe it will keep you safe, you should ask for it at the hearing.

  1. You can ask the judge to prohibit the abuser from any form of contact with you at all. No phone calls. No text messages. No coming to your workplace. No parking on the street in front of your house. No following you on the highway. No following you in the grocery store or shopping mall.
  2. You can ask to stay in the place where you and abuser have been living. Even if the house belongs to the abuser, the court can permit you to stay there for a while. The abuser will have to find some other place to live. Think carefully about whether you would feel safe staying in the same house.
  3. You can ask for temporary custody of any children you have with the abuser. This custody order is not permanent. It will run out when the protection order ends. But it will give you time to file a regular custody case.
  4. If you think the children will be safe, you can ask the court to set up a visit schedule. The court can also specify when and where the child exchanges will take place. If you don’t think the children would be safe, you can ask the court to prohibit visits by the abuser.
  5. You can ask for some temporary financial support. This could be some child support, or rent, or a household bill to be paid while the order is in effect.
  6. The Judge can give you the right to use items of personal property while the protection order is in effect. Things like your clothes, work uniforms, medicines, furniture, children’s toys, or even a pet. You can ask to have the use of a car while the order is in effect, even if the car belong to the abuser.
  7. The order can require the Respondent to get counseling or medical treatment.
  • For more information about domestic violence, read this article.

What can you do if you have a protective order and the other side violates or does not follow it?

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What should you do if the other side does not follow your protective order? If you are in danger you should call 911. If the other side is really late returning your children you can also call 911. If your Protective Order shows that you should have your children, the police can help you get them.

You can file a criminal complaint if the other side hurts or threatens you. You can also file one if the other side shows up where the order says they should not be. You do not need to have the police file the complaint for you. You can file the criminal complaint yourself in magistrate court.

You should bring evidence to the hearing that the other side did not follow the order. You could bring voice mail or texts of threats. You could also bring pictures or witnesses. If the magistrate finds the other side guilty, the magistrate can send them to jail or fine them.

If the other side does not follow your order you can also file a civil contempt in Family Court.

If the other side did not follow the order about money, bills or property, you can file a contempt in Family Court. You cannot file a criminal contempt in Magistrate court over money or property matters.

You should bring any evidence that the other side did not follow the order to the hearing. You can bring voice mail of threats or proof that the other side did not pay bills. If the Family Court Judge finds that the other side in contempt the Judge can do several things. Often the Judge will order the other side to follow the protective order. Also, the Judge may make the other side pay a fine.

For more information about domestic violence, read this article.

DVPO Extensions

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You can ask for a 90 day extension of your final domestic violence protective order. It does not matter if your original protective order was for 90 days or 180 days, you can still get the 90 day extension. You do not have to go back to court to get the extension. But you must file for the extension before your original protective order ends. To file for the extension, go to your local circuit clerk’s office. At the circuit clerk’s office, ask for a Request to Extend Protective Order form. Fill out the form and give the form back to the circuit clerk. The circuit clerk will file the form. Once the form is filed, the family court judge will sign the form. There will not be a hearing on the extension Once the form is signed, your protective order will automatically be extended for an additional 90 days.

Also, what happens if you or the other side files a divorce or custody case before your protective order ends? Well, then you can go to the circuit clerk’s office and let the clerk know:

  1. you have a protective order
  2. a custody, divorce or a similar case has been filed or re-opened after your protective order was granted
  3. the other side in the custody, divorce or similar case is the party that you have the protective order against.

The circuit clerk will file a Notice. Once the Notice is filed, your protective order will be extended until the family court enters a non-procedural temporary order or a final order, whichever is first.

For more information about domestic violence, read this article.

What should I do if I am afraid to have DHHR collect child support from my child’s other parent because of threats or violence?

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If you get WV WORKS or you and your children get an “AFDC Medical card” DHHR will ask you to let them collect child support. If you are scared for DHHR to collect child support because of threats or violence you can ask for a waiver.

If you are fearful about DHHR collecting support, tell your worker you need a “Good Cause Waiver.” If you have documents that support the waiver, give them to your worker. Documents can include a Protective Order, a Police Report, medical records, or other documents that show abuse. If you do not have any documents, you can tell your worker why you are afraid.

If DHHR has already referred your case for child support, you should contact a lawyer. You may want to apply for help from Legal Aid to see if we can help you. A lawyer can then advise or assist you in working with the Bureau for Child Support.

For more information about the Good Cause Exception, read this article.

Does DHHR have special policies to help me if I am afraid of my child’s other parent because of threats or violence?

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If you get WV WORKS, DHHR has special policies to help you if you are afraid of your children’s other parent. Here are some of the ways that DHHR tries to protect domestic violence victims:

If you are having problems and need help you should contact a lawyer. You may want to apply for help from Legal Aid to see if we can help you.

  1. You can ask for a “good cause” waiver from DHHR if you are afraid for them to collect child support.
  2. You can ask to have some time off from doing a work activity if you are at risk. DHHR will ask you to work with your local domestic violence program if you make this request.
  3. You can ask for supportive service money from DHHR if you need to move to a safer place. You cannot use this money to move to a shelter but you can use it to move to a permanent safer home.
  4. Abuse can be a reason why DHHR should not count certain assets that you are the co-owner of against you in looking at your case.
    For more information about the Good Cause Exception, read this article.