Domestic Violence

ARTICLE 2A. PREVENTION AND TREATMENT OF DOMESTIC AND FAMILY LAW VIOLENCE.

§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 temporary or final 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 final 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.

§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. 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 custodial 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) Prohibiting the respondent from using or possessing a firearm or other weapon, notwithstanding the fact that the respondent has a valid license to possess such firearm or other weapon; (11) Informing the respondent that possession of a firearm while subject to a protective order is a violation of federal law; (12) 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 (13) 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; (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 final protective order issued by a magistrate, family law master or circuit judge pursuant to this article or subdivision (13), subsection (a), 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 under this article shall in any manner affect title to any real property.

(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 interests 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.

ARTICLE 2C. DOMESTIC VIOLENCE ACT.

§48-2C-4c. Domestic violence legal services fund.

There is hereby established in the state treasury a special revenue account, designated as the "domestic violence legal services fund", which shall be an appropriated fund for receipt of grants, gifts, fees, or federal or state funds designated for legal services for domestic violence victims: Provided, That state funds may not be appropriated prior to fiscal year two thousand two. Expenditures from the fund shall be limited to attorneys employed by domestic violence shelters, or employed by nonprofit agencies which establish a collaborative relationship with a domestic violence shelter, that provide civil legal services to victims of domestic violence.