So, we end up doing a lot of domestic violence protective order litigation in both Greenbrier and Monroe County, WV. This past week has to have been one of the craziest weeks on record, with some of the most insane, bizarre, and malicious, human behavior I’ve encountered in the past decade or so…..
As I sat trying to negotiate a resolution with one particular pro se (unrepresented by a lawyer) party a couple of days ago, it became apparent to me that people don’t know what the “F” they are doing….
- Domestic Violence is bad, of course, but what is it, technically?
The West Virginia Legislature has adopted a civil remedy where victims of domestic violence can obtain what is essentially a restraining order. So what is “domestic violence” according to this law?
The Prevention and Treatment of Domestic Violence Act, West Virginia Code §§ 48-27-101 et seq., defines “domestic violence” or “abuse” as specific acts between family or household members that involve:
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, stalking, psychological abuse or threatening acts;
4. Committing either sexual assault or sexual abuse as those terms are defined in articles eight-b [§§ 61- 8B-1 et seq.] and eight-d [§§ 61-8D-1 et seq.], chapter sixty-one of this code, and;
5. Holding, confining, detaining or abducting another person against their will. W. Va. Code § 48-27-202.
The statutory definition of domestic violence is narrower than the commonly accepted definition of domestic violence because it primarily defines domestic violence as acts of physical violence, and only includes psychological abuse when it creates fear of physical harm. Although psychological abuse may not meet the statutory definition of domestic violence by itself, this type of abuse may be relevant to a proceeding involving domestic violence because it provides evidence of an abuser’s motive, intent, or plan. Additionally, evidence of psychological abuse may provide insight into the actions of both the abuser and the victim.
In addition to the definitions set forth in West Virginia Code § 48-27- 202, the West Virginia Legislature has criminalized acts of domestic assault and domestic battery by the enactment of West Virginia Code § 61-2-28. The distinction between domestic assault or battery and non-domestic assault or battery is that the domestic abuse must occur between family or household members. The Legislature has also established enhanced penalties for subsequent domestic assault and battery convictions. The enhanced penalties demonstrate that the Legislature both recognizes the repetitive nature of domestic violence and punishes it accordingly.
Providing further protection for domestic violence victims, West Virginia Code § 61-2-9a criminalizes stalking, harassment, and threats. As with domestic assault and battery, this code section establishes enhanced penalties for subsequent convictions. It also authorizes a court to issue a restraining order for a period of up to ten years upon conviction. When a defendant is charged with either harassment or stalking, it is a condition of a bond that the defendant shall have no contact with the victim. Although this code section could be applied to situations that do not involve domestic violence, this code section provides meaningful protection for domestic violence victims because it criminalizes behavior typically identified as domestic violence.
Family Court Judges are taught the following, in addition to the actual wording of the statute:
Although the motive for domestic violence commonly involves domination and control, domestic violence perpetrators employ various methods to achieve that purpose.4 Common psychological tactics include emotional abuse, such as control over finances, repeated and degrading insults, and threats. An abuser is often extremely jealous or possessive, and may isolate a victim from friends, family and other relationships. As another psychological tactic, an abuser may threaten to gain full custody of children. An abuser may also throw things, punch walls or hurt pets.
In addition to emotional abuse, an abuser may push, shove, shake or grab a victim. Other forms of physical abuse include: slapping, kicking, biting or twisting arms, legs or fingers. An abuser may choke, strangle or smother a victim. An abuser may also threaten a victim with a weapon, such as a knife or a gun, and may commit assault with a weapon. Rape or other forced sexual contact is yet one more type of abuse. Physical acts of domestic violence may constitute criminal behaviors, and should not be minimized or tolerated because they are directed against family members.
See 2012 Domestic Violence Judicial Handbook.
2. Some background on “domestic violence protective orders”
Although the motive for domestic violence commonly involves domination and control, domestic violence perpetrators employ various methods to achieve that purpose.4 Common psychological tactics include emotional abuse, such as control over finances, repeated and degrading insults, and threats. An abuser is often extremely jealous or possessive, and may isolate a victim from friends, family and other relationships. As another psychological tactic, an abuser may threaten to gain full custody of children. An abuser may also throw things, punch walls or hurt pets.
In addition to emotional abuse, an abuser may push, shove, shake or grab a victim. Other forms of physical abuse include: slapping, kicking, biting or twisting arms, legs or fingers. An abuser may choke, strangle or smother a victim. An abuser may also threaten a victim with a weapon, such as a knife or a gun, and may commit assault with a weapon. Rape or other forced sexual contact is yet one more type of abuse. Physical acts of domestic violence may constitute criminal behaviors, and should not be minimized or tolerated because they are directed against family members.
A protective order proceeding has the added advantage of a lower burden of proof. Often, there are no witnesses to domestic violence other than the abuser and the victim, and the evidence may not meet the criminal standard of proof of beyond a reasonable doubt.
Although protective order proceedings provide a legal remedy for domestic violence victims, some professionals involved in the proceedings may question their efficacy.48 In a study examining victims’ strategies to combat domestic violence, the results indicated that 30% of the victims who obtained an initial ex parte protective order did not appear at the final hearing.49 Examining the reasons for this occurrence, it was noted that law enforcement failed to serve a petition in 50% of the cases, which in turn either delayed or prevented the entry of a final protective order. Also, petitioners did not attend a final hearing because of conflicts with employment or lack of childcare. A lack of legal representation was an additional reason that victims did not complete the process. Certainly, these institutional barriers must be addressed to increase the effectiveness of protective orders.
The study also indicated that the ex parte orders, in some cases, were sufficient to meet the victims’ needs. Specifically, victims noted that the ex parte order stopped the violence, allowed the victim to separate, or induced the abuser to seek counseling. Based upon these interviews, it was concluded that the failure to obtain a final protective order does not indicate “that the advocate has failed or the woman has been passive in the face of abuse.”50 Rather, protective orders, including ex parte orders, provide an effective legal remedy that can be tailored to meet the needs of domestic violence victims.
3. There must be a “family or household member” relationship
The domestic violence protections and remedies under Chapter 48, Article 27 are tied to occurrences of violence or abuse between “family or household members” as that term is defined under this Act. The only time a proceeding under this Act may involve parties other than “family or household members” is when the petitioner is seeking protection as one who reported or witnessed domesticviolence. See W. Va. Code §§ 48-27-305(3); 48-27-504.
As provided in West Virginia Code § 48-27-204, “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) Have a child in common regardless of whether they have ever married or lived together;
(7) Have the following relationships to another person: (A) Parent; (B) Stepparent; (C) Brother or sister; (D) Half-brother or half-sister; (E) Stepbrother or stepsister; (F) Father-in-law or mother-in-law; (G) Stepfather-in-law or stepmother-in-law; (H) Child or stepchild; (I) Daughter-in-law or son-in-law; (J) Stepdaughter-in-law or stepson-in-law; (K) Grandparent; (L) Stepgrandparent; (M) Aunt, aunt-in-law or stepaunt; (N) Uncle, uncle-in-law or stepuncle; (O) Niece or nephew; (P) First or second cousin; or
(8) Have the relationships set forth in paragraphs (A) through (P), subdivision (7) of this section to a family or household member, as defined in subdivisions (1) through (6), of this section.
The length of this provision is the first indication that the class of persons covered by the term “family or household members” is fairly broad. The statutory definition can be generally broken down into three categories of covered persons. Determinations as to who falls within either of the first two categories is straightforward in most cases. More careful analysis is generally needed if the determination involves the third category of covered persons.
The first category, the “partner” relationships described in subsections (1) through (6) of the statute, encompass parties who are or were — married; living together (whether in a spousal relationship or simply residing in the same household); sexual partners; dating; or parents of a child. Second, the “kinship” categories listed in subsections (7)(A) through (P), cover many of the family connections by blood or marriage. The third category, the subsection (8) “tie-in” provision, brings two parties within the “family or household member” class as long as one party has a “kinship” relationship [under subsection (7)(A)-(P)] with someone who has or had a “partner” relationship [under subsections (1)-(6)] with the other party.
See 2012 Domestic Violence Judicial Handbook.
4. The Logistics
Circuit courts, family courts and magistrate courts have concurrent jurisdiction over domestic violence proceedings. W. Va. Code § 48- 27-301; Rule 25, RDVCP. Emergency proceedings upon the filing of a petition for a protective order are held before a magistrate. W. Va. Code § 48-27-203.
Final hearings, following the entry of an emergency protective order by a magistrate, are typically heard before a family court judge. W. Va. Code § 48-27-205. However, circuit court judges may assist family court judges in the disposition of domestic violence caseloads by conducting protective order proceedings. Rule 25, RDVCP.
Appellate jurisdiction from a magistrate’s denial of an emergency protective order lies in the family court; and appeals from family court
5. The Timeline
A petitioner denied a DVPO may appeal to the family court. The petition for appeal must be filed no later than five days following the denial, and must be heard by the family court within ten days from the date the appeal was filed. W. Va. Code § 48-27-510(a); Rule 18(a), RDVCP.
If the Temporary DVPO is granted, a final hearing before the family court must be scheduled to take place no later than ten days following the entry of the Temporary DVPO. W. Va. Code § 48-27-402(e).
Any party may file a petition for appeal following the grant or denial of a DVPO at the final hearing in Family Court. The petition must be filed within ten days following the decision of the family court. Rule 19(a), RDVCP. The circuit court is required to hear the appeal within ten days following the filing of the petition. W. Va. Code § 48-27-510(b) and (c); Rule 19(a), RDVCP.
6. Never walk into court without a lawyer. Period. Especially not when the words “domestic violence” are in the subject line of the case…..
