Personal Safety Orders
Last updated on 05/28/2021 at 4:15 pm
Who can file for a Personal Safety Order (PSO)?
The person who files a PSO is called the “petitioner.”
The Petitioner can be:
- A person seeking protection for herself or himself; or
- A parent, guardian or custodian seeking protection for a minor child or an incapacitated adult. W. Va. Code § 53-8-3.
Who can a PSO be filed against?
The Person the PSO is filed against is called the “respondent.”
The Respondent may be anyone you may need protection from who:
- is NOT a member of your family or household AND
- with whom you do NOT have a romantic relationship.
If you need protection against a household member or someone who was in a romantic or dating relationship with you, you need to file a Domestic Violence Protection Order (DVPO) case.
What are grounds to seek a PSO?
The respondent must have committed one or more of the following acts:
- A sexual offense or attempted sexual offense (W. Va. Code § 53-8-1(9)), which includes acts like indecent exposure, sexual assault, and sexual abuse;
- Stalking (W. Va. Code § 61-2-9a); and
- Repeated credible threats of bodily injury (W. Va. Code § 53-8-4).
Include as many grounds as apply. Proof of any one ground is enough for a court to issue a PSO. Include all grounds so the court will have an accurate picture of your situation.
What is stalking?
Any person who:
- repeatedly follows another;
- knowing or having reason to know;
- that the conduct causes the person followed;
- to reasonably fear for his or her safety or suffer significant emotional distress; OR
- any person who repeatedly harasses or repeatedly makes credible threats against another. W. Va. Code § 61-2-9a.
How is a PSO different from a Domestic Violence Protective Order?
A DVPO may be filed if you are seeking protection from:
- a family member,
- household member,
- someone you have a family relationship with, or
- someone with whom you have or had a romantic relationship.
A PSO may be filed if you are seeking protection from anyone who does not fit the above categories.
What relief can I get in a PSO?
A PSO can order any or all of the following:
- Order the respondent not to commit or threaten to commit a particular action;
- Order the respondent not to refrain contact, attempt to contact, or harass the petitioner, either directly or indirectly or through third parties (regardless of whether those third parties know of the order);
- Order the respondent not to enter the residence of the petitioner;
- Order the respondent to stay away from the petitioner’s place of employment, school or residence;
- Order the respondent not to visit, assault, molest or otherwise interfere with either the petitioner or (if the petitioner is a child) the child’s siblings and minors residing in the same household;
- Prohibit a respondent from possessing a firearm IF:
- A weapon was used or threatened to be used in the commission of the offense; OR
- The respondent has violated any previous order; OR
- The respondent has been convicted of an offense involving the use of a firearm.
What is the process to get a PSO?
- You must fill out the PSO petition form. This is available at the county magistrate office, or you can get one online at the West Virginia Judiciary website here.
- File the petition for a PSO in magistrate court. A magistrate will decide whether or not to issue a “temporary PSO.” W. Va. Code § 53-8-5.
- If a temporary PSO is issued, a copy of the temporary order and the petition must be served upon the respondent. W. Va. Code § 53-8-6.
- The temporary order must set a date and time for a final hearing, which should take place no more than ten days after the respondent receives the papers.
- The final hearing may be postponed if the respondent has not been served with the papers, or if there is other “good cause.”
- If the magistrate refuses to give either a temporary PSO or a final PSO, you can appeal to circuit court. W. Va. Code § 53-8-9.
What information do I need for the Petition?
You will need:
- The name of the Respondent and his or her last known address.
- Your name and address
- The names of any minor children or incapacitated adults that you wish to protect
- You will need to identify which of the three grounds above the Respondent violated (Include all grounds that apply-even it is all three).
- You will need to write a description of exactly what happened that caused you to seek a PSO.
- The location where the event or events happened.
- Identify any pending criminal charges that you are aware of that came out of the event or events.
- A description of any other similar events that the Respondent committed in the past against you or someone else that you know about.
- A list of any court cases, now or in the past, between you and the Respondent.
How is the other side served with the Petition?
Law-enforcement officers are required to serve all pleadings and orders regarding a PSO, even on Sundays and legal holidays. No law-enforcement officer may refuse to serve any pleadings or orders. Law enforcement shall attempt to serve all orders within seventy-two hours of being given the papers to serve.
If service is not made, law enforcement shall continue to attempt service on the respondent until proper service is made. W. Va. Code § 53-8-14.
What if service cannot be completed?
If service is not made upon the respondent in the first ten days, the magistrate can extend the temporary PSO. This gives more time for law enforcement to try to serve the papers. W. Va. Code § 53-8-5.
If service cannot be completed even after several attempts, you cannot go forward with the case UNLESS you publish a legal notice in the newspaper that you have filed the case. There are two requirements for “notice by publication:”
The notice must be published in the newspaper covering the county of the respondent’s most recent known address.
Also, a copy of the petition and order must be mailed by first class mail to the respondent’s most current known residential address. W. Va. Code 48-27-311.
What if the Respondent is not a resident of West Virginia?
The Secretary of State may receive service of process. W.Va. Code 56-3-33a.
How long does a PSO last?
The “Temporary PSO:”
- The temporary personal safety order shall be effective for not more than ten days AFTER service of the order.
- The magistrate may extend the temporary personal safety order to allow more time for service or for other good cause. The failure to obtain service upon the respondent does not constitute a basis to dismiss the petition. W. Va. Code § 53-8-5.
The “Final PSO:”
- Relief granted in a final personal safety order can be in effect for up to two years. The Final PSO must state the length of time it will be in effect. W. Va. Code § 53-8-7.
What if the Respondent violates the PSO?
Arrest. A law-enforcement officer shall arrest any individual who is violating a PSO order. The law enforcement officer does not need to have an arrest warrant as long as he has “probable cause” to believe that the person is violating a PSO. W. Va. Code § 53-8-11.
Conviction. If the Respondent violates the PSO, he or she is guilty of a misdemeanor. Upon conviction the violator shall
- For a first offense, be fined not more than $1,000 or confined in jail not more than ninety days, or both;
- For a second or subsequent offense, be fined not more than $2,500 or confined in jail not more than one year, or both.
Can I bring someone to the hearing with me?
Hearings and proceedings conducted for a PSO are private, and are not open to the public. Only the parties involved may attend.
HOWEVER, if the petitioner wants to have a person sit with him/her in the courtroom while the hearing takes place, that is permitted as long as:
- That person’s presence is desired by you (the petitioner); AND
- That person’s behavior is not disruptive to the proceeding. W. Va. Code § 53-8-2.
This person cannot speak during the hearing. This person cannot act like a lawyer and say or do things to help the petitioner. The person can be present, to help reassure the petitioner.
What other evidence will I need?
You will want to bring anything that helps show that you are telling the truth:
- witnesses who have seen the threatening conduct or stalking behavior; or
- printouts of email, text messages, or social media pages that show what the respondent has been doing; or
- recordings of voicemails or other audio/video communications by the respondent; or
- letters or cards or notes the respondent may have sent you with scary or threatening statements in them; or
- Medical or hospital records showing any treatment you needed due to the respondent’s conduct;or
- Photos of any marks or bruises the respondent may have inflicted upon you.