Removed From Your Home by a Protective Order You Say Is False

Attorney Answer

The order stands until a family court judge says otherwise, and no argument with a deputy will change that. Everything now depends on the hearing on the 18th — that is where you win this or lose it for the next six months.

Under W. Va. Code § 48-27-403, a magistrate can enter an emergency domestic violence protective order on a verified petition, without you present, on clear and convincing evidence of immediate danger. That is why this happened without you having any chance to speak. The same statute requires that a hearing before the family court "shall be scheduled not later than 10 days following the entry of the order by the magistrate," and it warns a respondent that failing to appear can result in a protective order lasting 90 or 180 days. I am not aware of statutory authority to force a hearing earlier than that, so do not count on getting back into the house before your date.

The good news is in the standard. Under W. Va. Code § 48-27-501, at the final hearing the court "shall enter a protective order if it finds, after hearing the evidence, that the petitioner has proved the allegations of domestic violence by a preponderance of the evidence." Note what changed: the emergency order rested on his one-sided account; the final order requires him to prove his allegations, with you there, able to cross-examine him and put on your own evidence. If your only connection to this man is that he bought a camper from you, that is provable with documents, and documents beat assertions.

What you can do

1. Do not violate the order — not once, not for five minutes. Do not go to the property, do not contact him, do not send anyone on your behalf. A violation is a separate crime and it will destroy an otherwise strong defense. 2. Get a lawyer for the hearing immediately. Call Legal Aid of West Virginia today and ask about the protective-order docket; also ask the family court clerk what local resources exist. Going in alone against a petitioner who has already gotten one order is a bad trade. 3. Appear at the hearing no matter what. Not appearing is how a temporary order becomes a 90- or 180-day one. 4. Gather documents proving the actual relationship: the camper listing or advertisement, messages arranging the sale, the bill of sale, payment or bank records, and the title transfer. 5. Gather documents proving the home is yours: deed or lease, mortgage or rent records, utility bills, and mail in your name at that address. 6. Line up witnesses who can say he never lived there or stayed there, and ask the clerk how to have them subpoenaed if they will not come voluntarily. 7. Ask your lawyer or the court about a law-enforcement escort to retrieve essential items — medication, work clothes, identification — rather than going yourself.

⏱ Time limits apply. W. Va. Code § 48-27-403 requires the family court hearing to be scheduled no later than ten days after the magistrate entered the order. The exact date turns on when your order was entered, and it is printed on your papers. Read them and mark it.