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Abuse Laws
West Virginia
2001
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auto-scrolling links by statute.
West Virginia Statutes:
Criminal Acts:
Protective Orders:
§61-2-28. Domestic
violence -- Criminal acts.
(a) Domestic battery. -- If any family or household
member unlawfully and intentionally makes physical contact of
an insulting or provoking nature with another family or household
member or unlawfully and intentionally causes physical harm
to another family or household member, he or she is guiltyof
a misdemeanor, and, upon conviction thereof, shall be confined
in jail for not more than twelve months, or fined not more than
five hundred dollars, or both fined and confined.
(b) Domestic assault. -- If any family or household
member unlawfully attempts to commit a violent injury of another
family or household member or unlawfully commits an act which
places another family or household member in reasonable apprehension
of immediately receiving a violent injury, he or she is guilty
of a misdemeanor, and, upon conviction thereof, shall be confined
in jail for not more than six months, or fined not more than
one hundred dollars, or both fined and confined.
(c) Third offense. -- A family or household member
who has been convicted of a third or subsequent domestic battery
and/or domestic assault as defined in this section, assault
and/or battery as defined in section nine of this article when
committed against a family or household member, or any combination
of such offenses, is guilty of a felony if such offense occurs
within ten years of a prior conviction of any of these offenses,
and, upon conviction thereof, shall be confined in the penitentiary
not less than one nor more than five years and fined not exceeding
five hundred dollars.
(d) For the purposes of this section, the term
"family or household member" means "family or household member"
as defined in section two, article two-a, chapter forty-eight
of this code.
(e) A person charged with violation of this section
may not also be charged with a violation of subsection (b) or
(c), section nine of this article.
(f) No law-enforcement officer shall be subject
to any civil or criminal action for false arrest or unlawful
detention for affecting an arrest pursuant to this section or
pursuant to section fourteen, article two-a, chapter forty-eight
of this code.
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§48-2A-1. Findings
and purposes.
(a) The Legislature of this state finds that:
(1) No one should be a victim of domestic or family
violence. All people have a right to be safe in their homes
and in their families;
(2) Children are often physically assaulted or
witness violence against one of their parents or other family
or household members, violence which too often ultimately results
in death. These children may suffer deep and lasting emotional
harm from victimization and from exposure to domestic or family
violence;
(3) Domestic or family violence is a major health
and law-enforcement problem in this state with enormous costs
to the state in both dollars and human lives. It affects people
of all racial and ethnic backgrounds and all socioeconomic classes;
and
(4) Domestic or family violence can be deterred,
prevented or reduced by legal intervention that treats this
problem with the seriousness that it deserves.
(b) This article shall be liberally construed and
applied to promote the following purposes:
(1) To assure victims of domestic or family violence
the maximum protection from abuse that the law can provide;
(2) To create a speedy remedy to discourage violence
against family or household members with whom the perpetrator
of domestic or family violence has continuing contact;
(3) To expand the ability of law-enforcement officers
to assist victims, to enforce the domestic or family violence
law more effectively, and to prevent further abuse;
(4) To facilitate equal enforcement of criminal
law by deterring and punishing violence against family and household
members as diligently as violence committed against strangers;
(5) To recognize that domestic or family violence
constitutes serious criminal behavior with potentially tragic
results and that it will no longer be excused or tolerated;
and
(6) To recognize that the existence of a former
or on-going familial or other relationship should not serve
to excuse, explain or mitigate acts of domestic or family violence
which are otherwise punishable as crimes under the laws of this
state.
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§48-2A-2. Definitions.
As used in this article, unless the context clearly
requires otherwise:
(a) "Family violence", "domestic violence", "domestic
or family violence" or "abuse" means the occurrence of one or
more of the following acts between family or household members,
as that term is defined in subsection (b) of this section:
(1) Attempting to cause or intentionally, knowingly
or recklessly causing physical harm to another with or without
dangerous or deadly weapons;
(2) Placing another in reasonable apprehension
of physical harm;
(3) Creating fear of physical harm by harassment,
psychological abuse or threatening acts;
(4) Committing either sexual assault or sexual
abuse as those terms are defined in articles eight-b and eight-d,
chapter sixty-one of this code; and
(5) Holding, confining, detaining or abducting
another person against that person's will.
(b) "Family or household members" means persons
who:
(1) Are or were married to each other;
(2) Are or were living together as spouses;
(3) Are or were sexual or intimate partners;
(4) Are or were dating: Provided, That a casual
acquaintance or ordinary fraternization between persons in a
business or social context does not establish a dating relationship;
(5) Are or were residing together in the same household;
(6) Are or were related by marriage or related
by consanguinity within the second degree;
(7) Have a child in common, regardless of whether
they have ever married or lived together; or
(8) Are the father, stepfather, mother, stepmother,
brother or sister of a family or household member described
in subdivisions (1) through (7) of this subsection.
(c) "Program for victims of domestic or family
violence" means a licensed program for victims of domestic or
family violence and their children, which program provides advocacy,
shelter, crisis intervention, social services, treatment, counseling,
education or training.
(d) "Program of intervention for perpetrators"
means a licensed program, where available, or if no licensed
program is available, a program that:
(1) Accepts perpetrators of domestic or family
violence into educational intervention groups or counseling
pursuant to a court order; or
(2) Offers educational intervention groups to perpetrators
of domestic or family violence.
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§48-2A-3. Jurisdiction;
venue; effect of petitioner's leaving residence; priority of
petitions filed under this article; who may file; full faith
and credit; process.
(a) Jurisdiction. -- Circuit courts and magistrate
courts, as constituted under chapter fifty of this code, have
concurrent jurisdiction over proceedings under this article:
Provided, That on and after the first day of April, two thousand
one, magistrate court jurisdiction shall be limited, and thereafter,
full hearings wherein a protective order is sought shall be
heard before a circuit judge or a family law master.
(b) Venue. -- The action may be heard in the county
in which the domestic or family violence occurred, in the county
in which the respondent is living or in the county in which
the petitioner is living, either temporarily or permanently.
If the parties are married to each other, the action may also
be brought in the county in which an action for divorce between
the parties may be brought as provided by section eight, article
two of this chapter.
(c) Petitioner's rights. -- The petitioner's right
to relief under this article shall not be affected by his or
her leaving a residence or household to avoid further abuse.
(d) Priority of petitions. -- Any petition filed
under the provisions of this article shall be given priority
over any other civil action before the court, except actions
in which trial is in progress, and shall be docketed immediately
upon filing. Any appeal to the circuit court of a magistrate's
judgment on a petition for relief under this article shall be
heard within ten working days of the filing of the appeal.
(e) Full faith and credit. -- Any protective order
issued pursuant to this article shall be effective throughout
the state in every county. Any protective order issued by any
other state, territory or possession of the United States, Puerto
Rico, the District of Columbia or Indian tribe shall be accorded
full faith and credit and enforced as if it were an order of
this state whether or not such relief is available in this state.
A protective order from another jurisdiction is presumed to
be valid if the order appears authentic on its face and shall
be enforced in this state. If the validity of the order is contested,
the court or law enforcement to which the order is presented
shall, prior to the full hearing, determine the existence, validity
and terms of such order in the issuing jurisdiction. A protective
order from another jurisdiction may be enforced even if the
order is not entered into the state law-enforcement information
system described by section twelve of this article.
(f) Service by publication. -- A protective order
may be served on the respondent by means of a Class I legal
advertisement published notice, with the publication area being
the county in which the respondent resides, published in accordance
with the provisions of section two, article three, chapter fifty-nine
of this code if: (i) The petitioner files an affidavit with
the court stating that an attempt at personal service pursuant
to rule four of the West Virginia rules of civil procedure has
been unsuccessful or evidence is adduced at the hearing for
the protective order that the respondent has left the state
of West Virginia; and (ii) a copy of the order is mailed by
certified or registered mail to the respondent at the respondent's
last known residence and returned undelivered.
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§48-2A-4. Commencement
of proceeding; forms; counterclaim; accompanying persons.
(a) No person shall be refused the right to file
a petition under the provisions of this article. No person shall
be denied relief under the provisions of this article if she
or he presents facts sufficient under the provisions of this
article for the relief sought. The petition shall be verified.
A petition for a protective order may be filed
by:
(1) A person seeking relief under this article
for herself or himself;
(2) An adult family or household member for the
protection of the victim or for any family or household member
who is a minor child or physically or mentally incapacitated
to the extent that he or she cannot file on his or her own behalf,
or
(3) A person who reported or was a witness to domestic
or family violence and who, as a result, has been abused, threatened,
harassed or who has been the subject of other actions intended
to intimidate the person.
(b) The West Virginia supreme court of appeals
shall prescribe forms which are necessary and convenient for
proceedings pursuant to this article, and the court shall distribute
such forms to the clerk of the circuit court and magistrate
court of each county within the state.
(c) The respondent named in any petition alleging
domestic or family violence may file a counterclaim or raise
any affirmative defenses.
(d) No person accompanying a person who is seeking
to file a petition under the provisions of this article is precluded
from being present if his or her presence is desired by the
person seeking a petition unless the person's behavior is disruptive
to the proceeding.
(e) No fees shall be charged for the filing of
petitions or other papers, service of petitions or orders, copies
of orders, or other costs for services provided by, or associated
with, any proceedings under this article until the matter is
brought before the court for final resolution.
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§48-2A-5. Temporary
orders of court; hearings; persons present.
(a) Upon filing of a verified petition under this
article, the court may enter such temporary orders as it may
deem necessary to protect the petitioner or minor children from
domestic or family violence and, upon good cause shown, may
do so ex parte without the necessity of bond being given by
the petitioner. Clear and convincing evidence of immediate and
present danger of abuse to the petitioner or minor children
shall constitute good cause for the issuance of an ex parte
order pursuant to this section. If the respondent is not present
at the proceeding, the petitioner or the petitioner's legal
representative shall certify to the court, in writing, the efforts
which have been made to give notice to the respondent or just
cause why notice should not be required. Copies of medical reports
or records may be admitted into evidence to the same extent
as though the original thereof. The custodian of such records
shall not be required to be present to authenticate such records
for any proceeding held pursuant to this subsection. Following
such proceeding, the court shall order a copy of the petition
to be served immediately upon the respondent, together with
a copy of any temporary order issued pursuant to the proceedings,
notice setting forth the time and place of the full hearing
and a statement of the right of the respondent to be present
and to be represented by counsel. Copies of any order made under
the provisions of this section shall also be issued to the petitioner
and any law-enforcement agency having jurisdiction to enforce
the order, including the city police, the county sheriff's office
and local office of the state police within twenty-four hours
of the entry of the order. A temporary protective order shall
remain effective until such time as a hearing is held and shall
be in full force and effect in every county in this state.
(b) Within five days following the issuance of
the court's temporary order, a full hearing shall be held at
which the petitioner must prove the allegation of domestic or
family violence, or that he or she reported or witnessed domestic
violence against another and has, as a result, been abused,
threatened, harassed or has been the subject of other actions
to attempt to intimidate him or her, by a preponderance of the
evidence, or such petition shall be dismissed. If the respondent
has not been served with notice of the temporary order, the
hearing may be continued in order to permit service to be effected.
The failure to obtain service upon the respondent does not constitute
a basis for dismissing the petition. Copies of medical reports
may be admitted into evidence to the same extent as though the
original thereof, upon proper authentication, by the custodian
of such records.
(c) No person requested by a party to be present
during a hearing held under the provisions of this article shall
be precluded from being present unless such person is to be
a witness in the proceeding and a motion for sequestration has
been made and such motion has been granted. A person found by
the court to be disruptive may be precluded from being present.
(d) If a hearing is continued, the court may make
or extend such temporary orders as it deems necessary.
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§48-2A-6. Protective
orders.
(a) At the conclusion of the hearing, if the petitioner
has proven the allegations of domestic or family violence, or
that he or she reported or witnessed domestic or family violence
against another and has, as a result, been abused, threatened,
harassed or has been the subject of other actions to attempt
to intimidate him or her, by a preponderance of the evidence,
the court shall issue a protective order directing the respondent
to refrain from abusing, harassing, stalking, threatening or
otherwise intimidating the petitioner, the person who reported
or witnessed family or domestic violence or the minor children,
or engaging in other conduct that would place the petitioner,
the person who reported or witnessed family or domestic violence
or the minor children in reasonable fear of bodily injury. The
court’s order shall inform the respondent that he or she
is prohibited from possessing any firearm or ammunition, notwithstanding
the fact that the respondent may have a valid license to possess
a firearm, and that possession of a firearm or ammunition while
subject to the court’s protective order is a criminal offense
under federal law. Where the respondent is present at the hearing
and elects not to contest the allegations of domestic or family
violence or does not contest the relief sought, the petitioner
is not required to adduce evidence and prove the allegations
of domestic or family violence and the court may directly address
the issues of the relief requested.
(b) Where the petitioner is the victim of domestic
or family violence, the terms of a protective order may include:
(1) Granting possession to the petitioner of the
residence or household jointly resided in at the time the abuse
occurred;
(2) Awarding temporary custody of or establishing
temporary visitation rights with regard to minor children named
in the order;
(3) Establishing terms of temporary visitation
with regard to the minor children named in the order including,
but not limited to, requiring third party supervision of visitations
if necessary to protect the petitioner and/or the minor children;
(4) Ordering the noncustodial parent to pay to
the caretaker parent a sum for temporary support and maintenance
of the petitioner and children, if any;
(5) Ordering the respondent to pay to the petitioner
a sum for temporary support and maintenance of the petitioner,
where appropriate;
(6) Ordering the respondent to refrain from entering
the school, business or place of employment of the petitioner
or household or family members for the purpose of violating
the protective order;
(7) Ordering the respondent to participate in an
intervention program for perpetrators;
(8) Ordering the respondent to refrain from contacting,
telephoning, communicating, harassing or verbally abusing the
petitioner;
(9) Providing for either party to obtain personal
property or other items from a location, including granting
temporary possession of motor vehicles owned by either or both
of the parties, and providing for the safety of the parties
while this occurs, including ordering a law-enforcement officer
to accompany one or both of the parties;
(10) Ordering the respondent to reimburse the petitioner
or other person for any expenses incurred as a result of the
domestic or family violence, including, but not limited to,
medical expenses, transportation and shelter; and
(11) Ordering the petitioner and respondent to
refrain from transferring, conveying, alienating, encumbering,
or otherwise dealing with property which could otherwise be
subject to the jurisdiction of the court or another court in
an action for divorce or support, partition or in any other
action affecting their interests in property.
(c) Where the petitioner or other person to be
protected reported or was a witness to the family or domestic
violence, the terms of a protective order may include:
(1) Ordering the respondent to refrain from abusing,
contacting, telephoning, communicating, harassing, verbally
abusing or otherwise intimidating the petitioner or other person
to be protected; and
(2) Ordering the respondent to refrain from entering
the school, business or place of employment of the petitioner
or other person to be protected, for the purpose of violating
the protective order.
(d) Except as otherwise provided by subsection
(d), section three-a of this article, a protective order issued
by a magistrate, family law master or circuit judge pursuant
to this article or subsection (a), section thirteen, article
two of this chapter, is effective for either ninety days or
one hundred eighty days, in the discretion of the court. If
the court enters an order for a period of ninety days, upon
receipt of a written request from the petitioner prior to the
expiration of the ninety-day period, the court shall extend
its order for an additional ninety-day period.
(e) To be effective, a written request to extend
an order from ninety days to one hundred eighty days must be
submitted to the court prior to the expiration of the original
ninety-day period. A notice of the extension shall be sent by
the clerk of the court to the respondent by first class mail,
addressed to the last known address of the respondent as indicated
by the court’s case filings. The extension of time is effective
upon mailing of the notice.
(f) The court may amend the terms of a protective
order at any time upon subsequent petition filed by either party.
The protective order shall be in full force and effect in every
county of this state and shall so state.
(g) No order entered pursuant to this article may
in any manner affect title to any real property, except as provided
in section four, article five, chapter forty-eight-a of this
code for past-due child support. The personal property of any
person ordered to pay child support pursuant to the provisions
of this article is subject to a lien for past-due child support
as provided in section two, article five, chapter forty-eight-a
of this code.
(h) Certified copies of any order or extension
notice made under the provisions of this section shall be issued
to the petitioner, the respondent and any law-enforcement agency
having jurisdiction to enforce the order, including the city
police, the county sheriff’s office or local office of
the West Virginia state police within twenty-four hours of the
entry of the order.
(i) Mutual protective orders are prohibited unless
both parties have filed a petition under section four of this
article and have proven the allegations of domestic or family
violence by a preponderance of the evidence. This shall not
prevent other persons, including the respondent, from filing
a separate petition. The court may consolidate two or more petitions
if he or she determines that consolidation will further the
interest of justice and judicial economy. The court shall enter
a separate order for each petition filed.
(j) Any protective order issued pursuant to this
article shall contain on its face the following statement, printed
in bold-faced type or in capital letters:
"VIOLATION OF THIS ORDER MAY BE PUNISHED BY CONFINEMENT
IN A REGIONAL OR COUNTY JAIL FOR AS LONG AS ONE YEAR AND BY
A FINE OF AS MUCH AS TWO THOUSAND DOLLARS."
(k) Any person against whom a protective order
is issued after a full hearing pursuant to this section shall
be assessed a fee of twenty-five dollars. Such fee shall be
paid to the family court fund established pursuant to section
twenty-three, article four, chapter forty-eight-a of this code.
(l) The supreme court of appeals shall promulgate
a procedural rule to establish time-keeping requirements for
magistrates, magistrate court clerks, and magistrate assistants
so as to assure the maximum funding of incentive payments, grants
and other funding sources available to the state for the processing
of cases filed for the establishment of temporary orders of
child support pursuant to the provisions of this section.
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§48-2A-7. Conditions
of visitation in cases involving domestic or family violence.
(a) A court may award visitation of a child by
a parent who has committed domestic or family violence only
if the court finds that adequate provision for the safety of
the child and the petitioner can be made.
(b) In a visitation order, a court may:
(1) Order an exchange of a child to occur in a
protected setting;
(2) Order that supervision be provided by another
person or agency;
(3) Order the perpetrator of domestic or family
violence to attend and complete, to the satisfaction of the
court, a program of intervention for perpetrators as a condition
of the visitation;
(4) Order the perpetrator of domestic or family
violence to abstain from possession or consumption of alcohol
or controlled substances during the visitation and for the twelve
hours that precede the visitation;
(5) Order the perpetrator of domestic or family
violence to pay the costs of supervised visitation, if any;
(6) Prohibit overnight visitation;
(7) Impose any other condition that the court considers
necessary to provide for the safety of the child, the petitioner
or any other family or household member.
(c) Regardless of whether visitation is allowed,
the court may order that the address of the child and the petitioner
be kept confidential.
(d) If a court allows a family or household member
to supervise visitation, the court shall establish conditions
to be followed during visitation.
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§48-2A-9. Law enforcement
response to domestic or family violence.
(a) Notwithstanding any other provision of this
code to the contrary, all law-enforcement officers are hereby
authorized to serve all pleadings and orders filed or entered
pursuant to this article on Sundays and legal holidays. No law-enforcement
officer shall refuse to serve any pleadings or orders entered
pursuant to this article.
(b) Any law-enforcement officer responding to an
alleged incident of domestic or family violence shall inform
the parties thereto of the availability of the possible remedies
provided by this article and the possible applicability of the
criminal laws of this state. Any law-enforcement officer investigating
an alleged incident of domestic or family violence shall advise
the victim of such violence of the availability of the family
protection shelter to which such person may be admitted.
(c) Any law-enforcement officer responding to an
alleged incident of domestic or family violence shall, in addition
to providing the information required in subsection (a) of this
section, provide transportation for or facilitate transportation
of the victim or victims, upon the request of such victim or
victims, to a shelter or the appropriate court where there is
reasonable cause to believe that such victim or victims have
suffered or are likely to suffer physical injury.
(d) Each law-enforcement agency shall maintain
records on all incidents of domestic or family violence reported
to it and shall monthly make and deliver to the West Virginia
state police a report on a form prescribed by the state police,
listing all such incidents of domestic or family violence. Such
reports shall include:
(1) The age and sex of the victim and the perpetrator
of domestic or family violence;
(2) The relationship between the parties;
(3) The type and extent of abuse;
(4) The number and type of weapons involved;
(5) Whether the law-enforcement agency responded
to the complaint and if so, the time involved, the action taken
and the time lapse between the agency's action and the victim’s
request for assistance;
(6) Whether any prior reports have been made, received
or filed regarding domestic or family violence on any prior
occasion and if so, the number of such prior reports; and
(7) The effective dates and terms of any protective
order issued prior to or following the incident to protect the
victim: Provided, That no information which will permit the
identification of the parties involved in any incident of domestic
or family violence shall be included in such report.
(e) The West Virginia state police shall tabulate
and analyze any statistical data derived from the reports made
by law-enforcement agencies pursuant to this section and publish
a statistical compilation in its annual uniform crime report,
as provided for in section twenty-four, article two, chapter
fifteen of this code. The statistical compilation shall include,
but is not limited to, the following:
(1) The number of domestic or family violence complaints
received;
(2) The number of complaints investigated;
(3) The number of complaints received from alleged
victims of each sex;
(4) The average time lapse in responding to such
complaints;
(5) The number of complaints received from alleged
victims who have filed such complaints on prior occasions;
(6) The number of aggravated assaults and homicides
resulting from such repeat incidents;
(7) The type of police action taken in disposition
of the cases; and
(8) The number of alleged violations of protective
orders.
(f) As used in this section, the terms "abuse",
"family violence" and "family or household members" shall have
the meanings given them in section two of this article; and
the term "law-enforcement agency" shall include the West Virginia
department of health and human resources in those instances
of child abuse reported to the department which are not otherwise
reported to any other law-enforcement agency.
(g) The governor's committee on crime, delinquency
and correction shall develop and promulgate rules for state,
county and municipal law-enforcement officers and law-enforcement
agencies with regard to domestic violence. The notice of the
public hearing on the rules shall be published before the first
day of July, one thousand nine hundred ninety-one. Prior to
the publication of the proposed rules, the governor's committee
on crime, delinquency and correction shall convene a meeting
or meetings of an advisory committee to assist in the development
of the rules. The advisory committee shall be composed of persons
invited by the committee to represent state, county and local
law-enforcement agencies and officers, to represent magistrates
and court officials, to represent victims of domestic or family
violence, to represent shelters receiving funding pursuant to
article two-c of this chapter and to represent other persons
or organizations who, in the discretion of the committee, have
an interest in the rules. The rules and the revisions thereof
as provided in this section shall be promulgated as legislative
rules in accordance with chapter twenty-nine-a of this code.
Following the promulgation of said rules, the committee shall
meet at least annually to review the rules and to propose revisions
as a result of changes in law or policy.
(h) Nothing in this section shall be construed
to authorize the inclusion of information contained in a report
of an incident of abuse in any local, state, interstate, national
or international systems of criminal identification pursuant
to section twenty-four, article two, chapter fifteen of this
code: Provided, That nothing in this section shall prohibit
the West Virginia state police from processing information through
its criminal identification bureau with respect to any actual
charge or conviction of a crime.
(i) All law-enforcement officers shall receive
training relating to response to calls involving domestic or
family violence by the first day of October, one thousand nine
hundred ninety-three.
(j) Two years after the entry of a final protective
order, the circuit court, may, upon motion, order that the protective
order and references to the order be purged from the file maintained
by any law-enforcement agency and may further order that the
file maintained by the court be sealed and not opened except
upon order of the court when such is in the interest of justice.
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§48-2A-10. Filing
of orders with law-enforcement agency.
Upon entry of an order pursuant to section five
or six of this article, or an order entered pursuant to section
thirteen, article two of this chapter granting relief provided
for by this article, a copy of the order shall, no later than
the close of the next business day, be transmitted by the court
or the clerk of the court to a local office of the city police,
the county sheriff and the West Virginia state police, where
it shall be placed in a confidential file, with access provided
only to the law-enforcement agency and the respondent named
on the order. A sworn affidavit may be executed by a party who
has been awarded exclusive possession of the residence or household,
pursuant to an order entered under subsection (b), section six
of this article, and shall be delivered to such law-enforcement
agencies simultaneously with any order, giving his or her consent
for a law-enforcement officer to enter the residence or household,
without a warrant, to enforce the protective order or temporary
order. Orders shall be promptly served upon the respondent.
Failure to serve a protective order does not stay the effect
of a valid order if the respondent has actual notice of the
existence and contents of the order.
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§48-2A-10b. Violations
of protective orders; criminal complaints.
(a) When a respondent abuses the petitioner and/or
minor children or is physically present at any location in knowing
and willful violation of the terms of a temporary or final protective
order issued by a magistrate, a circuit court judge or a family
law master under the provisions of this article or subdivision
(12), subsection (a), section thirteen, article two of this
chapter granting the relief pursuant to the provisions of this
article, any person authorized to file a petition pursuant to
the provisions of section four of this article or the legal
guardian or guardian ad litem may file a petition for civil
contempt as set forth in section ten-a of this article.
(b) When any such violation of a valid order has
occurred, the petitioner may file a criminal complaint. If the
court finds probable cause upon the complaint, the court shall
issue a warrant for arrest of the person charged.
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§48-2A-10c. Arrest
for violations of protective orders.
(a) When a law-enforcement officer observes any
respondent abuse the petitioner and/or minor children or the
respondent's physical presence at any location in knowing and
willful violation of the terms of a temporary or final protective
order issued by a magistrate, a circuit court judge or a family
law master under the provisions of this article or subdivision
(12), subsection (a), section thirteen, article two of this
chapter granting the relief pursuant to the provisions of this
article, he or she shall immediately arrest the respondent.
(b) When a family or household member is alleged
to have committed a violation of the provisions of section ten-d
of this article, a law-enforcement officer may arrest the perpetrator
for said offense where:
(1) The law-enforcement officer has observed credible
corroborative evidence, as defined in subsection (b), section
fourteen of this article, that the offense has occurred; and
(2) The law-enforcement officer has received, from
the victim or a witness, a verbal or written allegation of the
facts constituting a violation of section ten-d of this article;
or
(3) The law-enforcement officer has observed credible
evidence that the accused committed the offense.
(c) Any person who observes a violation of a protective
order as described in this section, or the victim of such abuse
or unlawful presence, may call a local law-enforcement agency,
which shall verify the existence of a current order, and shall
direct a law-enforcement officer to promptly investigate the
alleged violation.
(d) Where there is an arrest, the officer shall
take the arrested person before a court or a magistrate and,
upon a finding of probable cause to believe a violation of an
order as set forth in this section has occurred, the court or
magistrate shall set a time and place for a hearing in accordance
with the West Virginia rules of criminal procedure.
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§48-2A-10d. Misdemeanor
offenses for violation of protective order, repeat offenses,
penalties.
(a) A respondent who abuses the petitioner and/or
minor children or who is physically present at any location
in knowing and willful violation of the terms of a temporary
or final protective order issued by a magistrate, a circuit
court judge or a family law master under the provisions of this
article or subdivision (12), subsection (a), section thirteen,
article two of this chapter granting the relief pursuant to
the provisions of this article, is guilty of a misdemeanor and,
upon conviction thereof, shall be confined in the county or
regional jail for a period of not less than one day nor more
than one year, which jail term shall include actual confinement
of not less than twenty-four hours, and shall be fined not less
than two hundred fifty dollars nor more than two thousand dollars.
(b) When a respondent previously convicted of the
offense described in subsection (a) of this section abuses the
petitioner and/or minor children or is physically present at
any location in knowing and willful violation of the terms of
a temporary or final protective order issued under the provisions
of this article, the respondent is guilty of a misdemeanor and,
upon conviction thereof, shall be imprisoned in the county or
regional jail for not less than three months nor more than one
year, which jail term shall include actual confinement of not
less than twenty-four hours, and fined not less than five hundred
dollars nor more than three thousand dollars, or both.
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§48-2A-11. Appeals.
Any party to a temporary or final protective order
may as a matter of right present a petition for appeal, within
five days of entry of the order in magistrate court, to the
circuit court. The order shall remain in effect pending an appeal
unless stayed by the circuit court. No bond shall be required
for any appeal under this section. In any case where a petition
for appeal is filed under this section, the petition shall be
heard de novo by the circuit court within ten days from the
filing of the petition for appeal.
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§48-2A-12. Registration
of order.
(a) The West Virginia state police shall maintain
a registry in which it shall enter certified copies of orders
entered by courts from every county in this state pursuant to
the provisions of this article, or from other jurisdictions
pursuant to their laws: Provided, That the provisions of this
subsection are not effective until a central automated record
system is developed.
(b) A petitioner who obtains a protective order
pursuant to this article, or from another jurisdiction pursuant
to its law, may register that order in any county within this
state where the petitioner believes enforcement may be necessary.
(c) A protective order may be registered by the
petitioner in a county other than the issuing county by obtaining
a copy of the order of the issuing court, certified by the clerk
of that court, and presenting that certified order to the local
office of the West Virginia state police where the order is
to be registered.
(d) Upon receipt of a certified order for registration,
the local office of the state police shall provide certified
copies to any law-enforcement agency within its jurisdiction,
including the city police and the county sheriff's office.
(e) Nothing in this section precludes the enforcement
of an order in a county other than the county or jurisdiction
in which the order was issued, if the petitioner has not registered
the order in the county in which an alleged violation of the
order occurs.
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§48-2A-14. Arrest
in domestic violence matters; conditions.
(a) Notwithstanding any provision of this code
to the contrary, if a person is alleged to have committed a
violation of the provisions of subsection (a) or (b), section
twenty-eight, article two, chapter sixty-one of this code against
a family or household member, in addition to any other authority
to arrest granted by this code, a law-enforcement officer has
authority to arrest that person without first obtaining a warrant
if:
(1) The law-enforcement officer has observed credible
corroborative evidence that an offense has occurred; and either:
(2) The law-enforcement officer has received, from
the victim or a witness, an oral or written allegation of facts
constituting a violation of section twenty-eight, article two,
chapter sixty-one of this code; or
(3) The law-enforcement officer has observed credible
evidence that the accused committed the offense.
(b) For purposes of this section, credible corroborative
evidence means evidence that is worthy of belief and corresponds
to the allegations of one or more elements of the offense and
may include, but is not limited to, the following:
(1) Condition of the alleged victim. -- One or
more contusions, scratches, cuts, abrasions, or swellings; missing
hair; torn clothing or clothing in disarray consistent with
a struggle; observable difficulty in breathing or breathlessness
consistent with the effects of choking or a body blow; observable
difficulty in movement consistent with the effects of a body
blow or other unlawful physical contact.
(2) Condition of the accused. -- Physical injury
or other conditions similar to those set out for the condition
of the victim which are consistent with the alleged offense
or alleged acts of self-defense by the victim.
(3) Condition of the scene. -- Damaged premises
or furnishings; disarray or misplaced objects consistent with
the effects of a struggle.
(4) Other conditions. -- Statements by the accused
admitting one or more elements of the offense; threats made
by the accused in the presence of an officer; audible evidence
of a disturbance heard by the dispatcher or other agent receiving
the request for police assistance; written statements by witnesses.
(c) Whenever any person is arrested pursuant to
subsection (a) of this section, the arrested person shall be
taken before a magistrate within the county in which the offense
charged is alleged to have been committed in a manner consistent
with the provisions of Rule 1 of the Administrative Rules for
the Magistrate Courts of West Virginia.
(d) If an arrest for a violation of subsection
(c), section twenty-eight, article two, chapter sixty-one of
this code is authorized pursuant to this section, that fact
constitutes prima facie evidence that the accused constitutes
a threat or danger to the victim or other family or household
members for the purpose of setting conditions of bail pursuant
to section seventeen-c, article one-c, chapter sixty-two of
this code.
(e) Whenever any person is arrested pursuant to
the provisions of this article or for a violation of an order
issued pursuant to subdivision (12), subsection (a), section
thirteen, article two of this chapter, the arresting officer:
(1) Shall seize all weapons that are alleged to
have been involved or threatened to be used in the commission
of domestic or family violence; and
(2) May seize a weapon that is in plain view of
the officer or was discovered pursuant to a consensual search,
as necessary for the protection of the officer or other persons.
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