Threatened International Removal of a Child as “Creating Fear of Physical Harm” Supporting a DVPO Under W. Va. Code § 48-27-202(3)

1. Introduction

In Ahmad A. v. Kimberly A. (W. Va. Sup. Ct. App. Mar. 31, 2026) (memorandum decision), the Supreme Court of Appeals of West Virginia affirmed the Circuit Court of Mercer County’s order upholding a Family Court of Mercer County domestic violence protective order (“DVPO”). The parties were married but separated and shared a young son who was a dual citizen of the United States and Jordan.

The DVPO stemmed from allegations that Ahmad A. threatened to remove the child from Kimberly A.’s care and take him to Jordan—allegations said to have caused fear, nightmares, and counseling needs for the child. The core legal issue was whether this conduct constituted “domestic violence” as defined by W. Va. Code § 48-27-202(3): “creating fear of physical harm by harassment, stalking, psychological abuse or threatening acts.”

2. Summary of the Opinion

The Court affirmed the DVPO. It held that the family court made sufficient factual findings and correctly identified (by matching statutory language) the relevant definition of domestic violence under W. Va. Code § 48-27-202(3). The Court concluded the record supported the finding, by a preponderance of the evidence, that Ahmad A.’s conduct amounted to domestic violence through “creating fear of physical harm” via threatening acts—namely, threats related to removing the child to Jordan against Kimberly A.’s wishes.

Chief Justice Bunn dissented, not on the merits of reversal outright, but on the process: she would have set the case for oral argument because the evidentiary sufficiency question was “more nuanced than the majority decision reflects,” particularly where the record emphasized fear of separation from the mother and counseling, alongside the child’s stated love for the father.

3. Analysis

3.1. Precedents Cited

  • John P.W. ex rel. Adam W. v. Dawn D.O., 214 W. Va. 702, 591 S.E.2d 260 (2003)
    Role in the decision: The Court relied on this case for two key propositions. First, it set the appellate framework: “Upon an appeal from a domestic violence protective order,” review involves abuse of discretion for the ultimate disposition, clearly erroneous review for factual findings, and de novo review for legal conclusions (Syl. Pt. 1). Second, it supplied a DVPO-specific procedural requirement: a family court issuing a DVPO must make factual findings describing the established acts of domestic violence and identify the statutory definition those facts satisfy (Syl. Pt. 2).
    Influence: The Court used John P.W. to validate the adequacy of the family court’s order—despite the order not listing the subsection number—because the order used the exact statutory phrasing and included supporting facts about fear and threats.
  • Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004)
    Role in the decision: The Court cited Carr for the layered standard of review applicable when the Supreme Court reviews a circuit court order that reviewed (or refused to review) a family court order: clearly erroneous for family-court factfinding, abuse of discretion for application of law to facts, and de novo for questions of law (Syl.).
    Influence: This reinforced the deferential posture toward the fact-intensive DVPO determination and framed why the Supreme Court would not reweigh testimony credibility.
  • Thomas v. Morris, 224 W. Va. 661, 687 S.E.2d 760 (2009)
    Role in the decision: The Court quoted Syl. Pt. 6 to articulate how “fear of physical harm” under W. Va. Code § 48-27-202(3) may be proven: (1) harassment, (2) psychological abuse, or (3) overt or covert threatening acts.
    Influence: This was the doctrinal bridge that allowed the Court to treat the alleged threats about removing the child to Jordan as “threatening acts” sufficient to establish the statutory element of “fear of physical harm,” without requiring proof of an actual physical assault.

3.2. Legal Reasoning

The Court’s reasoning proceeded in three steps:

  1. Identify the governing statutory category of domestic violence.
    Although the family court did not cite “§ 48-27-202(3)” by number, it found Ahmad A. “created fear of physical harm by harassment, stalking, psychological abuse or threatening acts,” which is verbatim the statutory definition in § 48-27-202(3). The Supreme Court treated that as a sufficient identification of the statutory basis.
  2. Confirm adequate factfinding to allow appellate review.
    Under John P.W. ex rel. Adam W. v. Dawn D.O., DVPO orders must contain factual findings and the statutory definition satisfied. Here, the order pointed to “credible testimony” that the child feared being removed to Jordan, was receiving counseling, and that the fear centered on being taken away from the mother. The Supreme Court deemed these findings adequate and reviewable.
  3. Apply the evidentiary standard and deferential review posture.
    The family court applied the civil burden—preponderance of the evidence—and credited testimony from Kimberly A. and her mother regarding threats and the child’s fear. On appeal, the Supreme Court did not reweigh credibility. Using the standards in John P.W. and Carr, it found no clear error or abuse of discretion in concluding that the threats constituted “threatening acts” under Thomas v. Morris and thus supported a DVPO under § 48-27-202(3).

3.3. Impact

While issued as a memorandum decision, the opinion is instructive on how West Virginia courts may analyze DVPO petitions premised on non-physical coercion involving threatened child removal, including threatened international relocation:

  • Threat-based DVPOs: The case reinforces that § 48-27-202(3) can be satisfied by “overt or covert threatening acts,” not only by physical violence, and that fear-inducing threats involving custody/relocation may fit within that framework when credited by the factfinder.
  • Order drafting and appellate durability: It underscores that a family court order remains reviewable if it (a) states the statutory language of the definition found and (b) includes concrete factual findings tied to that definition—even if it omits the subsection number.
  • Litigation focus on the “physical harm” nexus: The dissent highlights a likely future battleground: when the evidence shows fear of separation, emotional distress, or psychological harm, parties may dispute whether the record sufficiently establishes “fear of physical harm” as distinct from fear of non-physical loss. Practitioners should expect more argument—and potentially more developed records—on how the threatening conduct implies physical danger or coercion.
  • Protective-order remedies intersecting with travel documents: The family court’s visitation structure (supervised visitation with potential modification upon surrender of passports) reflects a practical tool courts may use to mitigate abduction-risk allegations while preserving some parent-child contact.

4. Complex Concepts Simplified

  • DVPO (Domestic Violence Protective Order): A civil court order restricting conduct/contact to protect a person (and sometimes children) from domestic violence or abuse. The petitioner must prove qualifying conduct by a preponderance of the evidence.
  • Preponderance of the evidence: The civil standard—more likely than not.
  • “Creating fear of physical harm” under § 48-27-202(3): This can be shown through harassment, stalking, psychological abuse, or threatening acts. Under Thomas v. Morris, proof of any one of those categories may establish the statutory element.
  • Standards of review:
    • Clearly erroneous (facts): an appellate court will not overturn factual findings unless left with a firm conviction a mistake was made.
    • Abuse of discretion (ultimate disposition/application): substantial deference to the lower court’s judgment call.
    • De novo (law): no deference; appellate court decides legal questions independently.
  • Memorandum decision: A shorter appellate disposition used when the court concludes the case does not require a full published opinion; it still explains the result and reasoning, but typically with less elaboration.

5. Conclusion

Ahmad A. v. Kimberly A. affirms that, under W. Va. Code § 48-27-202(3) and the framework summarized in Thomas v. Morris, a DVPO may be supported by threatening acts that create fear of physical harm even without an actual physical assault—here, threats connected to removing a child to another country against the other parent’s wishes. The decision also reinforces the importance of DVPO orders containing reviewable factual findings and an identifiable statutory basis as required by John P.W. ex rel. Adam W. v. Dawn D.O., while the dissent flags ongoing tension about how courts should evaluate the “physical harm” component when the immediate evidence centers on fear of separation and psychological distress.