FOR DOMESTIC VIOLENCE PROCEEDINGS

1 West Virginia Benchbook FOR DOMESTIC . VIOLENCE PROCEEDINGS . WEST VIRGINIA SUPREME COURT OF APPEALS. 2012 Edition WEST VIRGINIA BENCHBOOK. For DOMESTIC VIOLENCE PROCEEDINGS West Virginia Supreme Court of Appeals Building 1 Room E-100. 1900 Kanawha Boulevard, East Charleston, West Virginia 25305. Phone Fax 2012 Edition PREFACE-ACKNOWLEDGMENTS. The West Virginia Benchbook for DOMESTIC VIOLENCE PROCEEDINGS was originally produced in 2004 by the West Virginia Supreme Court of Appeals through its project, the West Virginia Court System DOMESTIC VIOLENCE Training Program. This project was funded in substantial part by a VIOLENCE Against Women Act grant under the STOP VIOLENCE Against Women Program (Grant Nos. 00-VAW-028 and 01-VAW-028). administered by the West Virginia Division of Criminal Justice Services.

2 Further support was provided by the West Virginia Supreme Court and its Administrative Office. The 2012 edition was funded by VIOLENCE Against Women Act grants under the STOP VIOLENCE Against Women Program (Grant Nos. 07-VAW-003, 09-VAW-004, and 10-VAW-003). Valuable support for this Benchbook project has been provided by Angela D. Saunders, Director of Court Services in the Administrative Office. The statutes, rules, and cases contained and discussed in this Benchbook are current through June 30, 2012. All relevant statutory amendments and new legislation enacted through the 2012 Regular Legislative Session are included. This Benchbook is intended primarily as a resource for West Virginia magistrates and judges. Information contained in this publication may also be useful for other court personnel, prosecuting attorneys, defense counsel, law enforcement officers, and DOMESTIC VIOLENCE service providers.

3 However, many of the statutes and rules relating to DOMESTIC VIOLENCE protection PROCEEDINGS are relatively new, and a number of issues remain unresolved. All readers are advised that discussions and suggestions regarding these legal issues represent the collective professional judgment of the Benchbook authors, and are not to be considered as authoritative statements or interpretations of the law by the West Virginia Supreme Court of Appeals. The 2012 edition of the Benchbook was researched and written by the following attorneys: John Hedges, Teresa Lyons and Stephanie Shepherd from Hedges Lyons & Shepherd, PLLC, Morgantown, West Virginia. Lisa Nair, paralegal, and administrative assistant Angela Vance of Hedges Lyons & Shepherd, PLLC, provided research and editorial assistance. Comments and suggestions regarding the content of this Benchbook may be sent to Questions seeking legal advice concerning DOMESTIC VIOLENCE issues should not be sent to the email address above.

4 Questions concerning local DOMESTIC VIOLENCE procedures should be directed to the local court with jurisdiction over the case in question. i West Virginia DOMESTIC VIOLENCE Benchbook Summary Table of Contents Chapter 1 Dynamics of DOMESTIC VIOLENCE Chapter 2 Civil Protection PROCEEDINGS -- Definitions and Timeline Chapter 3 Commencement -- Emergency PROCEEDINGS Chapter 4 Final Hearings Chapter 5 Enforcement of Protective Orders Chapter 6 DOMESTIC VIOLENCE Crimes Chapter 7 Case Law Digest Chapter 8 Rules Chapter 9 Statutes Chapter 10 Resources Appendix A Index of Cases Appendix B WV Judicial Guide to Child Safety in Custody Cases List of Rule Abbreviations ii Detailed Table of Contents Chapter 1 Dynamics of DOMESTIC VIOLENCE A. Definition of DOMESTIC VIOLENCE .. 1-1. B. Statutory Definitions of DOMESTIC VIOLENCE .

5 1-2. C. Acts of DOMESTIC VIOLENCE .. 1-3. D. The Power and Control Wheel .. 1-4. E. Prevalence of Intimate Partner VIOLENCE as Indicated by the National Intimate Partner and Sexual VIOLENCE Survey (NISVS) .. 1-5. F. Prevalence of Intimate Partner VIOLENCE or DOMESTIC VIOLENCE Based Upon the National Crime Victimization Survey (NCVS) .. 1-6. G. Phases of an Abusive Relationship .. 1-7. H. Effects of DOMESTIC VIOLENCE on Victims .. 1-8. I. Obstacles to Terminating an Abusive Relationship .. 1-9. J. Characteristics of a DOMESTIC VIOLENCE Perpetrator .. 1-12. K. Intervention for DOMESTIC VIOLENCE Perpetrators .. 1-13. L. Effects of DOMESTIC VIOLENCE on Children .. 1-14. M. WV Judicial Guide to Child Safety in Custody Cases .. 1-17. N. Lethality Assessment .. 1-17. O. Advantages to DOMESTIC VIOLENCE Protective Orders.

6 1-18. P. Effective Judicial Responses to DOMESTIC VIOLENCE .. 1-20. Q. Effects of DOMESTIC VIOLENCE on Judicial Officers and Other Court Personnel .. 1-21. Chapter 2 Civil Protection PROCEEDINGS -- Definitions and Timeline A. Purposes of DOMESTIC VIOLENCE Civil Protection PROCEEDINGS .. 2-1. B. Principal Definitions .. 2-2. 1. DOMESTIC VIOLENCE or Abuse .. 2-2. 2. Family or Household Members .. 2-6. 3. Hearings and Orders .. 2-11. C. Law Enforcement Duties .. 2-12. D. Jurisdiction .. 2-14. E. Timeline Summary for Civil PROCEEDINGS .. 2-15. 1. Emergency PROCEEDINGS .. 2-15. 2. Final Hearings .. 2-17. Chapter 3 Commencement -- Emergency PROCEEDINGS A. Filing a Petition .. 3-1. B. Venue .. 3-2. C. Who May File .. 3-3. 1. Regulating Conduct During PROCEEDINGS .. 3-4. 2. Minors as Parties .. 3-4.

7 3. Mandatory Reporting of Suspected Child Abuse or Neglect .. 3-8. D. Emergency PROCEEDINGS When No Divorce Action Pending or Divorce Action Pending With No Temporary Order .. 3-8. iii E. Contents of Emergency Protective Order .. 3-9. 1. Mandatory Provisions .. 3-9. 2. Permissive Provisions .. 3-10. 3. Child Custody and Visitation .. 3-12. 4. Protection of Person Witnessing or Reporting .. 3-17. 5. Scheduling Final Hearing .. 3-17. F. Notice to Parties and Law Enforcement .. 3-17. 1. Service on Respondent .. 3-17. 2. Notice to Petitioner .. 3-19. 3. DOMESTIC VIOLENCE Registry and Database .. 3-19. 4. Distribution to Law Enforcement Agencies .. 3-19. G. Emergency PROCEEDINGS When Temporary Divorce, Annulment, or Separate Maintenance Order In Effect .. 3-19. 1. Service and Distribution .. 3-20.

8 2. DOMESTIC VIOLENCE Registry and Database .. 3-20. 3. Return of TEPO by Family Court .. 3-21. H. Appeal from Magistrate Court Denial of Emergency Protective Order .. 3-21. Chapter 4 Final Hearings A. Scheduling .. 4-2. B. Notice .. 4-2. C. Transfer and Consolidation .. 4-3. 1. 4-3. 2. Consolidation .. 4-3. D. Continuances .. 4-4. E. Conducting the Final Hearing .. 4-4. 1. Regulating Conduct in PROCEEDINGS .. 4-5. 2. Evidentiary Considerations in the Final Hearing .. 4-6. 3. Conclusion of the Final Hearing .. 4-6. 4. Mandatory Reporting of Suspected Child Abuse or Neglect .. 4-7. F. Matters Covered in DOMESTIC VIOLENCE Protective Orders .. 4-9. 1. Mandatory Provisions .. 4-9. 2. Permissive Provisions .. 4-11. 3. Appointment of Guardian ad litem .. 4-12. 4. Child Custody and Visitation .. 4-14.

9 5. Child Support .. 4-18. 6. Other Support .. 4-20. 7. Possession of Residence, Vehicle, and Other Property .. 4-21. 8. Other Relief Necessary to Protect Physical Safety .. 4-21. 9. Persons Witnessing or Reporting DOMESTIC VIOLENCE .. 4-21. 10. Modification of DOMESTIC VIOLENCE Protective Orders .. 4-22. G. Multi-Jurisdiction Custody Issues .. 4-22. 1. Federal Parental Kidnapping Prevention Act .. 4-23. 2. Uniform Child Custody Jurisdiction and Enforcement Act .. 4-26. H. "Mutual" Protective Orders Strictly 4-30. iv I. Service Upon Parties and Notice to Law Enforcement .. 4-31. J. Effective Time Periods of DOMESTIC VIOLENCE Protective Orders .. 4-31. 1. Protective Order Timeframes Generally .. 4-31. 2. One-Year Protective Orders .. 4-32. 3. Modification or Termination .. 4-33. 4. Filing of DOMESTIC Relations Action While Protective Order in Effect.

10 4-33. 5. Obtaining Protective Order While DOMESTIC Relations Action Pending .. 4-35. 6. Extending Protective Order Relief at Time of Final Divorce 4-35. K. Appeal from Family Court .. 4-36. L. Appeal from Circuit Court .. 4-37. Chapter 5 Enforcement of Protective Orders A. Statewide Enforcement of Orders .. 5-1. 1. Effective in Every County .. 5-1. 2. Entry of Residence .. 5-2. B. Full Faith and Credit -- Other Jurisdictions' Orders .. 5-2. 1. State Statutes .. 5-2. 2. Federal Statute .. 5-5. 3. Enforcing Another Jurisdiction's Protective Order .. 5-8. 4. Limitations on Mutual Orders .. 5-10. C. Criminal Violations of Protective Orders .. 5-12. 1. Criminal Complaint Procedure .. 5-12. 2. Warrantless Arrests for Violations of Protective Orders .. 5-13. 3. Criminal Penalties for Violations of Protective Orders.