Protective Orders in Charleston, WV
If you are a victim of domestic violence, getting a protective order (also referred to as a restraining order) is the most effective way to protect yourself as well as your children. In order to get a protective order, you need to file a petition with the local magistrate court.
Depending on your safety and convenience, you can choose to file the petition in:
- The county where you live.
- The county where your abuser lives.
- The county where you last lived together (if you are a married couple).
- The county where you were abused.
In the petition, you need to provide the following information:
- Your name and address.
- The abuser’s name and address.
- Names of your children.
- A brief description of the acts of violence or abuse that you were subjected to, when and where it happened, and the reason why you need a protective order.
Once you file your petition, the magistrate will call for an emergency hearing. At the hearing, the magistrate will ask you several questions to determine whether you or your children are in imminent danger. If so, the magistrate will grant you an emergency protective order. It’s also called an ex parte order, as it can be granted solely based on your petition – without the abuser having to testify.
The order will go into effect immediately and will remain in effect for approximately 10 days. It is meant to provide mandatory relief, which includes prohibiting the respondent from abusing, harassing, threatening, stalking, or intimidating you or your children. The abuser is also prohibited from possessing firearms as long as the order remains in effect.
Depending on the circumstances, you can also request the magistrate for permissive relief, which can include:
- Prohibiting the abuser from contacting you or your children.
- Prohibiting the abuser from entering your workplace, your place of business, and your children’s school.
- Granting you temporary possession of the home where you and the abuser lived together.
- Granting you temporary custody of your children and pets.
The magistrate who grants you the emergency protective order will also schedule a hearing for deciding whether a final order (which is commonly referred to as a Domestic Violence Protective Order) needs to be granted. You can find the date and time of the hearing listed on the first page of your emergency protective order.
What Happens at the Final Hearing?
The final hearing will be held at the family court, where the abuser can testify and call witnesses who can back up their side of the story. For your part, you need to provide evidence, including:
- Photographs of your injuries.
- Medical reports.
- Police reports.
- Text messages, emails, and voicemails that the abuser sent you.
- Torn clothes and items that were broken by the abuser.
- Weapons used by the abuser to injure you.
This evidence will help to prove that you were subjected to domestic violence or abuse. You can also ask eyewitnesses and experts to testify to establish the abuser’s culpability.
It’s critically important to have legal representation at the final hearing. Furthermore, a reputable West Virginia domestic violence lawyer can present all the relevant evidence, cross-examine the abuser and their witnesses, and make compelling arguments to prove that you were subjected to domestic violence and that you need the protections you have asked for.
After hearing the arguments made by both sides and based on the evidence presented, the court will make its decision. Depending on the circumstances, the judge might grant you a 90-day or 180-day protective order.
The judge might also grant you a one-year protective order if one or more of the following aggravating factors exist:
- If two or more protective orders have been issued against the abuser in the past five years (based on the petition filed by you, someone in your household, or anyone else).
- If the abuser has violated the provisions of a protective order in the past.
- If the abuser has been convicted of stalking or harassing someone (who had gotten a protective order against the abuser) in the past.
- If the abuser has been convicted of misdemeanor or felony domestic assault or battery one or more times in the past (while you were living together or while you were living in the same household).
Appealing the Family Court’s Decision
If you are not satisfied with the decision made by the family court, you can choose to file an appeal in the circuit court. You are required to appeal the decision within 10 days from the date on which the original order was issued.
How Does Domestic Violence Impact Child Custody in West Virginia?
Family courts in West Virginia take a wide range of factors into account (including charges of domestic violence against a parent) while making decisions related to child custody and visitation. Depending on the severity of domestic violence charges, the court might decide to limit the abuser’s parental rights in the following ways.
Under a supervised visitation arrangement, the parent in question can visit their children only under the supervision of a designated third party. The court might also order that the parent can spend time with their children only at a place authorized by the court.
If supervised visitation is one of the provisions of a protective order, the parent needs to comply with it only as long as the order is in effect. Once the order is lifted or terminated, they can visit their children without any supervision by anyone. On the other hand, if supervised visitation is included in the divorce decree or the child custody order, the parent needs to comply with it until the order is modified.
The court will decide to modify or end the supervised visitation arrangement only if the parent in question can demonstrate that they have been reformed, and that unsupervised visitation would be in the best interest of their children.