The municipal policeman is soon joined by a West Virginia State Police Trooper and a Logan County Deputy Sheriff who try to reason with the couple to calm the conflict. It doesn't work and, when the two lay hands on each other, both are arrested and transported to the Southwestern Regional Jail.
"Talk to any law enforcement officer and they will tell you the worst part of their job is handling domestic calls," West Logan Police Chief Robert Ward said. "For one thing, they are sad. For another, you seldom can actually solve the problem. If you make an arrest, the victim often winds up going back to the person who abused them. And it can be frustrating or dangerous because victims or family members often do get upset at you for taking the abuser into custody. You may wind up arresting the victim and the abuser at times, too. And sometimes you have to explain to them how to go about getting a court protection order."
Domestic violence petitions (DVPs) and emergency protective orders (EPOs) are available in magistrate court. The victim, also called the petitioner, must fill out the form seeking legal protection from the abuser, who is known legally as the respondent.
For a DVP, the petitioner and respondent must be family or household members. The petitioner must report how the respondent committed an act of violence or abuse, which is defined as a person attempting or causing physical harm to another person; placing another person in fear of physical harm; creating fear of physical harm by harassment, psychological abuse or threats; detaining, holding or abducting a person and keeping them confined against their will.
The West Virginia Supreme Court states that magistrates are available to hear petitions 24 hours a day. However, in Logan County there are usually two magistrates on duty from 8:30 a.m. to 4:30 p.m. and one is generally on duty available to be called out in the evening.
If that magistrate is not in the courthouse, officers may have to call around and try to find him to come to the courthouse.
For policemen who are working at night or in the evening when a victim shows up needing help and wants a DVP or EPO that can be a bit problematic if there is no magistrate in the courthouse at the time.
Once the petition has been filed, a magistrate will hold an emergency hearing in court.
A domestic violence advocate may attend the hearing with the petitioner, but the advocate may not speak for them in court.
The magistrate then must decide whether to grant the order based on reasonable evidence of fear of abuse.
The protective order requires the respondent to "stop abusing, harassing, stalking, threatening or otherwise intimidating the petitioner."
The order may also grant other requests made by the petitioner.
At the end of the hearing, the magistrates may give a copy of the EPO to the petitioner and have law enforcement officers notify the respondent by delivering a copy of the petition and the EPO to them.
If the magistrate does not grant the petition, the petitioner may appeal to family court.
Temporary protective orders are also available.
When a protective order is granted the petitioner is not asked to pay any fees or costs.
If the petition is denied, the petitioner will be charged a $25 fee.
At that point, the case switches courts, noted Lisa Ellison, assistant to Logan County Magistrate Dwight Williamson.
"You file it in magistrate court and the magistrate denies it or grants it," she explained. “Then if it is granted, it goes upstairs to circuit court, then circuit court sends it across the street to family law court where they have the hearing within 10 days. After it is signed here in magistrate court, it is out of our jurisdiction. Once it is signed, it is a family law court matter. "
At the hearing, a family court judge will ask the petitioner about the incident. If the respondent does not attend, the judge may conduct the hearing without them. If the petitioner does not attend the hearing, a judge can dismiss the petition. If the judge finds in favor of the petitioner, a DVP order will be entered effective for 90 to 180 days, requiring the parties have no contact.
The judge may also temporarily award the petitioner custody of a car or home and decide who has temporary custody of any children.
A DVP order lasts 90 days and, at the end of that period, the petitioner may request an extension for another 90 days without going back to court by filling out a equest to extended protective order at the circuit clerk’s office before the first 90 days are over.
If a DVP is not granted, the case is over unless a petitioner files an appeal. Either the petitioner or respondent may appeal the family court's decision.
If the orders are violated, the petitioner should call 911 immediately and can file a criminal complaint in the magistrate clerks' office. The petitioner should carry a copy of their EPO or DVP with them.
For more information about domestic violence resources in West Virginia check the WV Coalition Against Domestic Violence web site at www.wvcadv.org. For legal assistance check the Lawyer Information Service Hotline at 1-800-642-3617 or Legal Aid of West Virginia at 1-800-642-8279. For more information about protective orders check the Supreme Court of Appeals web site at www.state.wv.us/wvsca.