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EspañolI have a domestic violence protective order that was issued in Canada. Can my order be enforced against the abuser in West Virginia?
A law enforcement officer in West Virginia who reasonably believes that you have a valid Canadian domestic violence protective order that is being violated is required to enforce your order in the same way as if it were a West Virginia protective order.1 If you have a copy of the valid Canadian order that identifies you and the abuser and you show it to the officer, that is enough to require the officer to enforce the order.2 It is not a requirement that you show a copy of the order for it to be enforced, however. The officer may also use other information to determine whether a valid order exists.3
1 W. Va. Code § 48-28B-3(a)
2 W. Va. Code § 48-28B-3(b)
3 W. Va. Code § 48-28B-3(c)
What types of Canadian orders qualify for enforcement in West Virginia?
For your Canadian protective order to be enforced in West Virginia, it must be issued by a Canadian court in a civil proceeding that is related to domestic violence and prevent the abuser from doing any the following:
- being near you or anyone else protected by the order;
- contacting you or someone else named in the order;
- being within a certain distance of a specific location; or
- harassing, annoying, molesting, or engaging in threatening behavior directed at you or anyone else protected by the order.1
1 W. Va. Code § 48-28B-2
What happen if the abuser files in court to challenge my Canadian order?
If the abuser files a case asking a West Virginia judge to decide whether your order is valid, you can use a copy of your Canadian order as initial (prima facie) evidence that it should be enforced. This means that once you provide a copy of the order to the judge, the abuser must prove that the order is not valid or otherwise should not be enforced in West Virginia.1
To be enforced by the judge, your order must:
- identify you as the protected party and the abuser as the respondent;
- be currently in effect and not have expired;
- have been issued by a Canadian court that had:
- power over both you and the abuser (personal jurisdiction); and
- the ability to decide issues related to the domestic violence (subject matter jurisdiction);
- have been issued for a reason (basis) that a domestic violence protective order could be issued in West Virginia; and
- have been issued after:
- The abuser was given notice and had an opportunity to be heard by the Canadian judge; or
- The abuser was given notice and will have an opportunity to appear in court within a reasonable time after the order was issued, if the order is ex parte.2
If the judge agrees with the abuser that your order is not valid, the judge will issue an order saying that the Canadian order cannot be enforced or registered.3 If the judge does not agree with the abuser, your Canadian order will be recognized by the court as enforceable.4
1 W. Va. Code § 48-28B-4(a), (d), (e)
2 W. Va. Code § 48-28B-4(c)
3 W. Va. Code § 48-28B-4(e)
4 W. Va. Code § 48-28B-4(b)
Can my Canadian order protect me in West Virginia if it was never served on the abuser?
If the law enforcement officer determines that your Canadian order is valid but that it has never been served, the officer is required to tell you that s/he will try to contact the abuser in a way that is consistent with your safety. The law enforcement is then required to do all of the following:
- make a reasonable effort to tell the abuser that the order exists;
- tell the abuser what the terms of the order are;
- give a copy of the order or other written notification of what the order contains to the abuser; and
- give the abuser a chance to change his/her behavior to follow (comply with) the order before enforcing it.1
1 W. Va. Code § 48-28B-3(d)
Am I required to register my Canadian protective order in West Virginia to enforce it?
You are not required to register your Canadian order in West Virginia for it to be enforced, as is true for any out-of-state protective order. One advantage of registering an order, however, is that a registered order can then be entered into state and federal registries.1 This might be something that is important for a Canadian order because it might look less familiar to local police who may have only seen United States orders in the past. If law enforcement in West Virginia cannot tell whether your order is valid, it could take longer to get it enforced.
If you want to register your order, you need to get a certified copy to give to the West Virginia Supreme Court of Appeals along with an affidavit stating that, to the best of your knowledge, the order is currently in effect.2 The Court of Appeals will then register the order and give you a copy of the proof of registration.3 You cannot be charged a fee to register a Canadian domestic violence protective order in West Virginia.4
If you are unsure about whether registering your order is the right decision for you, you may want to contact a local domestic violence organization in your area. An advocate there can help you decide what the safest plan of action is for you in West Virginia. To see a list of local domestic violence organizations in West Virginia, go to our WV Advocates and Shelters page.
1 W. Va. Code § 48-28B-5(e)
2 W. Va. Code § 48-28B-5(a), (b)
3 W. Va. Code §§ 48-28B-5(c); 48-27-802
4 W. Va. Code § 48-28B-5(f)
