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Introduced Version House Bill 3178 History

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hb3178 intr
H. B. 3178


(By Delegates Brown, Amores, Staton,
Webster, Hrutkay and Mahan)
[Introduced March 23, 2005; referred to the
Committee on the Judiciary.]



A BILL to amend and reenact §48-5-608 of the Code of West Virginia, 1931, as amended; and to amend and reenact §48-27-305, §48-27- 401, §48-27-503, §48-27-504, §48-27-902 and §48-27-1001 of said code, all relating to domestic violence generally.

Be it enacted by the Legislature of West Virginia:
That §48-5-608 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §48-27-305, §48-27-401, §48-27- 503, §48-27-504, §48-27-902 and §48-27-1001 of said code be amended and reenacted, all to read as follows:
ARTICLE 5. DIVORCE.
§48-5-608. Injunctive relief or protective orders.
(a) When allegations of abuse have been proved, the court shall enjoin the offending party from molesting or interfering with the other, or otherwise imposing any restraint on the personal liberty of the other or interfering with the custodial or visitation rights of the other. The order may permanently enjoin the offending party from entering the school, business or place of employment of the other for the purpose of molesting or harassing the other; or from entering or being present in the immediate environs of the residence of the petitioner or household or family members, or from contacting the other, in person or by telephone, for the purpose of harassment or threats; or from harassing or verbally abusing the other in a public place, whether or not there are grounds for relief under subsection (c) of this section and whether or not an order is entered pursuant to subsection (c) of this section.
(b) Any order entered by the court to protect a party from abuse may grant any other relief authorized to be awarded by the provisions of article twenty-seven of this chapter, if the party seeking the relief has established the grounds for that relief as required by the provisions of said article, whether or not there are grounds for relief under subsection (c) of this section and whether or not an order is entered pursuant to subsection (c) of this section.
(c) The court, in its discretion, may enter a protective order, as provided by the provisions of article twenty-seven of this chapter, as part of the final relief in a divorce action, either as a part of a order for final relief or in a separate written order. A protective order entered pursuant to the provisions of this subsection shall remain in effect for the period of time ordered by the court not to exceed one hundred eighty days: Provided, That if the court determines that a violation of a domestic violence protective order entered during or extended by the divorce action has occurred, it the court may extend the protective order for whatever period the court deems necessary to protect the safety of the petitioner and others threatened or at risk, if the court determines:
(A) That a violation of a protective order entered during or extended by the divorce action has occurred;
(B) That a violation of a protective order that expired before the divorce was filed or violated; or
(C) Upon a motion for modification, that a violation of a provision of a final order entered pursuant to this section has occurred.
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
§48-27-305. Persons who may file petition.
A petition for a protective order may be filed by:
(1) A person seeking relief under this article for herself or himself;
(2) An adult family or household member for the protection of the victim or for any family or household member who is a minor child or physically or mentally incapacitated to the extent that he or she cannot file on his or her own behalf, or
(3) A person who reported or was a witness to domestic violence and who, as a result, has been abused, threatened, harassed or who has been the subject of other actions intended to intimidate the person, or
(4) Personnel of the magistrate, family or circuit courts who allege in a petition that as a result of actions taken in the course of their duties with court actions filed pursuant to chapter forty-eight of this code, they have abused, threatened, harassed or have been the subject of other actions intended to intimidate the person.
§48-27-401. Interaction between domestic proceedings.
(a) During the pendency of a divorce action, a person may file for and be granted relief provided by this article until an order is entered in the divorce action pursuant to part 5-501, et seq.;
(b) If a person who has been granted relief under this article should subsequently become a party to an action for divorce, separate maintenance or annulment, such person shall remain entitled to the relief provided under this article including the right to file for and obtain any further relief, so long as no temporary order has been entered in the action for divorce, annulment and separate maintenance, pursuant to part 5-501, et seq.;
(c) Except as provided in section 5-509 of this chapter and section 27-402 of this article for a petition and a temporary emergency protective order, no person who is a party to a pending action for divorce, separate maintenance or annulment in which an order has been entered pursuant to part 5-501, et seq. of this chapter, shall be entitled to file for or obtain relief against another party to that action under this article until after the entry of a final order which grants or dismisses the action for divorce, annulment or separate maintenance.
(d) Notwithstanding the provisions set forth in section 27-505, when an action seeking a divorce, an annulment or separate maintenance, the allocation of custodial responsibility or a habeas corpus action to establish custody, the establishment of paternity, the establishment or enforcement of child support, or other relief under the provisions of this chapter is filed or is reopened by petition, motion or otherwise, then any order issued pursuant to this article which is in effect on the day the action is filed or reopened shall remain in full force and effect by operation of this statute until: (1) A temporary order other than a procedural order or a final order is entered pursuant to the provisions of part 5- 501, et seq. or part 6-601 et seq. of this chapter; or (2) an order is entered modifying such order issued pursuant to this article; or (3) the entry of a final order granting or dismissing the action.
§48-27-503. Permissive provisions in protective order.
The terms of a protective order may include:
(1) Granting possession to the petitioner of the residence or household jointly resided in at the time the abuse occurred;
(2) Ordering the respondent to refrain from entering or being present in the immediate environs of the residence of the petitioner or household or family members;
(2) (3) Awarding temporary custody of or establishing temporary visitation rights with regard to minor children named in the order;
(3) (4) Establishing terms of temporary visitation with regard to the minor children named in the order including, but not limited to, requiring third party supervision of visitations if necessary to protect the petitioner and/or the minor children;
(4) (5) Ordering the noncustodial parent to pay to the caretaker parent a sum for temporary support and maintenance of the petitioner and children, if any;
(5) (6) Ordering the respondent to pay to the petitioner a sum for temporary support and maintenance of the petitioner, where appropriate;
(6) (7) Ordering the respondent to refrain from entering the school, business or place of employment of the petitioner or household or family members for the purpose of violating the protective order;
(7) (8) Ordering the respondent to participate in an intervention program for perpetrators;
(8) (9) Ordering the respondent to refrain from contacting, telephoning, communicating, harassing or verbally abusing the petitioner.
(9) (10) Providing for either party to obtain personal property or other items from a location, including granting temporary possession of motor vehicles owned by either or both of the parties, and providing for the safety of the parties while this occurs, including ordering a law-enforcement officer to accompany one or both of the parties.
(10) (11) Ordering the respondent to reimburse the petitioner or other person for any expenses incurred as a result of the domestic violence, including, but not limited to, medical expenses, transportation and shelter; and
(11) (12) Ordering the petitioner and respondent to refrain from transferring, conveying, alienating, encumbering, or otherwise dealing with property which could otherwise be subject to the jurisdiction of the court or another court in an action for divorce or support, partition or in any other action affecting their interests in property.
§48-27-504. Provisions in protective order for person witnessing or reporting domestic violence.

When the person to be protected is a person who reported or was a witness to the domestic violence, or personnel of a magistrate, family or circuit court, the terms of a protective order may order the respondent:
(1) Order the respondent to refrain from abusing, contacting, telephoning, communicating, harassing, verbally abusing or otherwise intimidating the person to be protected; and
(2) Order the respondent to refrain from entering the school, business or place of employment of the person to be protected for the purpose of violating the protective order; and
(3) Order the respondent to refrain from entering or being present in the immediate environs of the residence of the petitioner or household or family members.
§48-27-902. Violations of protective orders; criminal complaints.
(a) When a respondent abuses the petitioner or minor children, or both, or is physically present at any location:
(1) In knowing and willful violation of the terms of an emergency or final protective order under the provisions of this article or sections 5-509 or 5-608 of this chapter granting the relief pursuant to the provisions of this article,
(2) In knowing and willful violation of the terms of a protection order from another jurisdiction that is required to be enforced pursuant to section 28-3 of this chapter, or
(3) In knowing and willful violation of the terms of a condition of bail, probation or parole imposed in another state which has the express intent or effect of protecting the personal safety of a particular person or persons in violation of section 28-7(a)(3) of this chapter then
any person authorized to file a petition pursuant to the provisions of section 27-305 or the legal guardian or guardian ad litem may file a petition for civil contempt as set forth in section 27-901.
(b) When any such violation of a valid order has occurred, the petitioner may file a criminal complaint. If the court finds probable cause upon the complaint, the court shall issue a warrant for arrest of the person charged.
§48-27-1001. Arrest for violations of protective orders.
(a) When a law-enforcement officer observes any respondent abuse the petitioner or minor children or the respondent's physical presence at any location in knowing and willful violation of the terms of an emergency or final protective order issued under the provisions of this article or section 5-509 or 5-608 of this chapter granting the relief pursuant to the provisions of this article, in knowing and willful violation of the terms of a protection order from another jurisdiction that is required to be enforced pursuant to section four, article twenty-eight of this chapter, he or she shall immediately arrest the respondent.
(b) When a family or household member is alleged to have committed a violation of the provisions of section 27-903 or 28-7, a law-enforcement officer may arrest the perpetrator for said offense where:
(1) The law-enforcement officer has observed credible corroborative evidence, as defined in subsection 27-1002(b), that the offense has occurred; and
(2) The law-enforcement officer has received, from the victim or a witness, a verbal or written allegation of the facts constituting a violation of section 27-903; or
(3) The law-enforcement officer has observed credible evidence that the accused committed the offense.
(c) Any person who observes a violation of a protective order as described in this section, or the victim of such abuse or unlawful presence, may call a local law-enforcement agency, which shall verify the existence of a current order, and shall direct a law-enforcement officer to promptly investigate the alleged violation.
(d) Where there is an arrest, the officer shall take the arrested person before a circuit court or a magistrate and, upon a finding of probable cause to believe a violation of an order as set forth in this section has occurred, the court or magistrate shall set a time and place for a hearing in accordance with the West Virginia rules of criminal procedure.



NOTE: The purpose of this bill is to clarify when permanent injunctions and other provisions may be granted in final divorce orders; allow a victim to extend a 180 day protective order granted as part of a final divorce if there is a violation of the order; allow a protective order granted as part of a final divorce order to be extended longer than 180 days if there had been a violation of a protective order prior to any protective order related to the present divorce; clarify that mere procedural orders entered in divorces etc., do not terminate protective orders that were in effect at the time the divorce, etc., was filed; give the court authority to order a perpetrator to stay away from the victim's residence and immediate environs even if the residence of the victim is not the residence where they lived together; give the same warrant issuing authority and probable cause arrest authority for enforcement orders from other states given full faith and credit by SB128 passed in the 2004 legislative session; allow court personnel to file for protective orders if as a result of their duties in domestic violence proceedings they have been threatened, etc.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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