Background
Ahmad A. and Kimberly A. were married but separated. The couple’s six-year-old son initially lived with Kimberly in Princeton, West Virginia after she moved there in fall 2022. Ahmad, whose employment transitioned to remote work, relocated to Beckley, West Virginia in summer 2023 to maintain a relationship with their son. A previous domestic violence petition filed by Kimberly in early 2023 expired without a hearing; an accompanying child abuse and neglect investigation was closed as unsubstantiated because alleged conduct occurred in other states outside West Virginia’s jurisdiction. Ahmad maintained unsupervised visitation with his son until August 2023.
In October 2023, Ahmad visited their son’s school, but the child was home sick that day. The parties disputed the purpose of the visit: Kimberly claimed Ahmad intended to remove their son to transport him to Jordan against her wishes, while Ahmad stated he merely wanted to ensure the school had his contact information. During testimony, Kimberly and her mother recounted Ahmad’s alleged threats to take the son to Jordan to compel Kimberly to follow, and the child’s resulting psychological distress including night terrors, nightmares, and the need for counseling. Kimberly also testified about an earlier incident during their marriage when Ahmad allegedly forced her to travel to Jordan to reside with his family.
The Court’s Holding
The family court granted a ninety-day domestic violence protective order (DVPO) on November 14, 2023, finding by a preponderance of evidence that Ahmad had engaged in domestic violence through “creating fear of physical harm by harassment, stalking, psychological abuse or threatening acts” under West Virginia Code § 48-27-202(3). The family court awarded temporary custody to Kimberly and granted Ahmad supervised weekly visitation, conditioning modification to unsupervised visitation on his surrender of their son’s passports.
Ahmad appealed to the Circuit Court of Mercer County, which affirmed the DVPO on December 20, 2023. Ahmad then appealed to the West Virginia Supreme Court of Appeals. The Court applied an abuse of discretion standard to review the circuit court’s disposition and clearly erroneous standard to findings of fact. The Court concluded that Ahmad’s threats to remove the child to Jordan, combined with the child’s documented fear of separation from his mother, satisfied the statutory definition of domestic violence creating fear of physical harm through threatening acts and psychological abuse.
Key Takeaways
- Threats to remove a child to another jurisdiction against the other parent’s wishes constitute “threatening acts” and “psychological abuse” under West Virginia’s domestic violence statute when they create fear of physical harm and family separation.
- Courts may issue DVPOs based on evidence of psychological abuse and threatening conduct affecting a child, even absent direct physical contact or overt violence.
- The statutory definition of domestic violence as “creating fear of physical harm” can be satisfied through harassment, psychological abuse, or threatening acts—three distinct pathways under West Virginia law.
- Custody modifications conditioning unsupervised visitation on surrender of a child’s passports are permissible remedies when relocation threats are established.
Why It Matters
This decision clarifies that parental threats of international relocation constitute actionable domestic violence under West Virginia law when they create documented psychological harm to a child. The Court’s analysis confirms that courts need not await physical violence or direct threats to a custodial parent to issue protective orders; psychological abuse manifesting through a child’s behavioral symptoms (night terrors, nightmares, need for counseling) and fear of forced relocation suffices. This protects vulnerable children caught between parents in custody disputes involving international jurisdictions and validates the use of DVPOs as tools to address coercive family conduct beyond traditional domestic violence scenarios.
Chief Justice Bunn’s dissent flags a potentially significant issue for appellate practice: whether the evidence truly established the requisite “creation of fear of physical harm” when the child testified he loved his father but feared separation, suggesting courts must carefully scrutinize whether threats alone—without more direct evidence of coercion or control—meet the statutory threshold. Practitioners should anticipate similar challenges in cases involving emotional rather than physical harm.