Senate Bill No. 128
(By Senators Humphreys, Wooton, Felton, Plymale,
Ross, Macnaughtan, Minard, Wiedebusch, Anderson,
Claypole, Dittmar, Grubb, Wagner,
Holliday and Yoder)
__________
[Originating in the Committee on the Judiciary;
reported February 25, 1993.]
__________
A BILL to amend and reenact section thirteen, article two,
chapter forty-eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to amend and
reenact sections two, three, five, six, nine and ten,
article two-a of said chapter; to amend and reenact section
thirteen, article two-c of said chapter; to amend and
reenact section three, article one, chapter forty-nine of
said code; to amend and reenact section eleven, article six
of said chapter; to amend and reenact sections two and five,
article six-a of said chapter; to amend and reenact sections
twelve and thirteen, article eight, chapter sixty-one of
said code; to amend and reenact section eleven-a, article
eight-b of said chapter; to amend and reenact section nine,
article eight-d of said chapter; to amend and reenact
section seventeen-a, article one-c, chapter sixty-two of
said code; to amend and reenact section one, article
eleven-a of said chapter; and to amend and reenact section
nine, article twelve of said chapter, all relating to family
violence; certain technical corrections; expanding the
authority of the court to grant relief during the pendency
of an action for divorce, annulment or separate maintenance;
redefining certain terms; clarifying the number of days to
file and hear an appeal; service of all protective orders by
publication; jurisdiction; venue; effect of petitioner
leaving residence; priority of petitions; full faith and
credit; temporary orders; hearings; continuation of
temporary order to effect service; persons who may be
excluded from hearings; protective orders; relief granted;
visitation; continuation of protective order by filing
divorce; law-enforcement response to family violence;
duties; records required; records of prior reports; training
of law-enforcement officers; renumbering of certain
sections; enforcement procedures for temporary and final
protective orders and for certain orders entered during the
pendency of divorce, annulment and separate maintenance;
criminal penalties; arrest powers of law-enforcement
officials; expungement of protective orders; law-enforcement
response to witnessing a violation of a protective order;
response when respondent violates order by physical
presence; contempt of protective order; appeal of protective
order; registration of protective order; including
registration of order in county other than that where
entered; judicial education on family violence; education on
child witnesses; confidential communications in familyviolence programs; exceptions for reports of abuse and
neglect; exception for internal review; convictions for
offenses against children; requirement of finding the
defendant an abusing parent; persons mandated to report to
law-enforcement agencies and division of human services;
reporting procedure and time period for documentation; bail
in situations of child abuse; redefining "child"; and
conditions of release in certain cases for work release and
probation.
Be it enacted by the Legislature of West Virginia:
That section thirteen, article two, chapter forty-eight of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted; that sections two, three,
five, six, nine and ten, article two-a of said chapter be amended
and reenacted; that section thirteen, article two-c of said
chapter be amended and reenacted; that section three, article
one, chapter forty-nine of said code be amended and reenacted;
that section eleven, article six of said chapter be amended and
reenacted; that sections two and five, article six-a of said
chapter be amended and reenacted; that sections twelve and
thirteen, article eight of chapter sixty-one of said code be
amended and reenacted; that section eleven-a, article eight-b of
said chapter be amended and reenacted; that section nine, article
eight-d of said chapter be amended and reenacted; that section
seventeen-a, article one-c, chapter sixty-two of said code be
amended and reenacted; that section one, article eleven-a of said
chapter be amended and reenacted; and that section nine, article
twelve of said chapter be amended and reenacted, all to read asfollows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§48-2-13. Temporary relief during pendency of action for
(a) At the time of the filing of the complaint or at any
time after the commencement of an action for divorce, annulment
or separate maintenance under the provisions of this article, and
upon motion for temporary relief, notice of hearing and hearing,
the court may order all or any portion of the following temporary
relief, which order shall govern the marital rights and
obligations of the parties during the pendency of the action:
(1) The court may require either party to pay temporary
alimony in the form of periodic installments, or a lump sum, or
both, for the maintenance of the other party.
(2) The court may provide for the custody of minor children
of the parties subject to such rights of visitation, both in and
out of the residence of the custodial parent or other person or
persons having custody, as may be appropriate under the
circumstances.
(3) The court may require either party to pay temporary
child support in the form of periodic installments for the
maintenance of the minor children of the parties.
(4) The court may compel either party to pay attorney's fees
and court costs reasonably necessary to enable the other party to
prosecute or defend the action in the trial court. The question
of whether or not a party is entitled to temporary alimony shall
not be decisive of that party's right to a reasonable allowance
of attorney's fees and court costs. An order for temporaryrelief awarding attorney fees and court costs may be modified at
any time during the pendency of the action, as the exigencies of
the case or equity and justice may require, including, but not
limited to, a modification which would require full or partial
repayment of fees and costs by a party to the action to whom or
on whose behalf payment of such fees and costs was previously
ordered. If an appeal be taken or an intention to appeal be
stated, the court may further order either party to pay attorney
fees and costs on appeal.
(5) As an incident to requiring the payment of temporary
alimony or temporary child support, the court may order either
party to continue in effect existing policies of insurance
covering the costs of health care and hospitalization of the
other party and the minor children of the parties. If there is
no such existing policy or policies, the court shall order that
such health care insurance coverage be paid for by the
noncustodial parent, if the court determines that such health
care coverage is available to the noncustodial parent at a
reasonable cost. Payments made to an insurer pursuant to this
subdivision, either directly or by a deduction from wages, shall
be deemed to be temporary alimony or temporary child support, in
such proportion as the court shall direct: Provided, That if the
court does not set forth in the order that a portion of such
payments is to be deemed temporary child support, then all such
payments made pursuant to this subdivision shall be deemed to be
temporary alimony.
(6) As an incident to requiring the payment of temporary
alimony or temporary child support, the court may grant theexclusive use and occupancy of the marital home to one of the
parties during the pendency of the action, together with all or
a portion of the household goods, furniture and furnishings,
reasonably necessary for such use and occupancy. The court may
require payments to third parties in the form of home loan
installments, land contract payments, rent, payments for utility
services, property taxes, insurance coverage or other expenses or
charges reasonably necessary for the use and occupancy of the
marital domicile. Payments made to a third party pursuant to
this subdivision shall be deemed to be temporary alimony or
temporary child support, in such proportion as the court shall
direct: Provided, That if the court does not set forth in the
order that a portion of such payments is to be deemed temporary
child support, then all such payments made pursuant to this
subdivision shall be deemed to be temporary alimony: Provided,
however, That the court may order such payments to be made
without denominating them either as temporary alimony or
temporary child support, reserving such decision until such time
as the court determines the interests of the parties in marital
property and equitably divides the same: Provided further, That
at the time the court determines the interests of the parties in
marital property and equitably divides the same, the court may
consider the extent to which payments made to third parties under
the provisions of this subdivision have affected the rights of
the parties in marital property, and may treat such payments as
a partial distribution of marital property notwithstanding the
fact that such payments have been denominated temporary alimony
or temporary child support or not so denominated under theprovisions of this subdivision. Nothing contained in this
subdivision shall abrogate an existing contract between either of
the parties and a third party, or affect the rights and
liabilities of either party or a third party under the terms of
such contract.
(7) As an incident to requiring the payments of temporary
alimony, the court may grant the exclusive use and possession of
one or more motor vehicles to either of the parties during the
pendency of the action. The court may require payments to third
parties in the form of automobile loan installments or insurance
coverage, and any such payments made pursuant to this subdivision
shall be deemed to be temporary alimony: Provided, That the
court may order such payments to be made without denominating
them as temporary alimony, reserving such decision until such
time as the court determines the interests of the parties in
marital property and equitably divides the same: Provided,
however, That at the time the court determines the interests of
the parties in marital property and equitably divides the same,
the court may consider the extent to which payments made to third
parties under the provisions of this subdivision have affected
the rights of the parties in marital property, and may treat such
payments as a partial distribution of marital property
notwithstanding the fact that such payments have been denominated
temporary alimony or not so denominated under the provisions of
this subdivision. Nothing contained in this subdivision shall
abrogate an existing contract between either of the parties and
a third party, or affect the rights and liabilities of either
party or a third party under the terms of such contract.
(8) Where the pleadings include a specific request for
specific property or raise issues concerning the equitable
division of marital property, the court may enter such order as
is reasonably necessary to preserve the estate of either or both
of the parties, including the imposition of a constructive trust,
so that such property be forthcoming to meet any order which may
be made in the action, and may compel either party to give
security to abide such order, or may require the property in
question to be delivered into the temporary custody of a third
party. The court may further order either or both of the parties
to pay the costs and expenses of maintaining and preserving the
property of the parties during the pendency of the action:
Provided, That at the time the court determines the interests of
the parties in marital property and equitably divides the same,
the court may consider the extent to which payments made for the
maintenance and preservation of property under the provisions of
this subdivision have affected the rights of the parties in
marital property, and may treat such payments as a partial
distribution of marital property. When appropriate, the court
may release all or any part of such protected property for sale
and substitute all or a portion of the proceeds of the sale for
such property.
(9) Unless a contrary disposition be found appropriate and
ordered pursuant to other provisions of this section, then upon
the motion of either party, the court may compel the other party
to deliver to the moving party any of his or her separate estate
which may be in the possession or control of the respondent
party, and may make such further order as is necessary to preventeither party from interfering with the separate estate of the
other.
(10) The court may enjoin either 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. Any order entered
by the court to protect a party from abuse may grant the relief
provided in article two-a of this chapter or continue such relief
as may be in force and effect at the time the action was filed.
(b) In ordering temporary relief under the provisions of
this section, the court shall consider the financial needs of the
parties, the present employment income and other recurring
earnings of each party from any source, their income-earning
abilities, and the respective legal obligations of each party to
support himself or herself and to support any other persons.
Except in extraordinary cases supported by specific findings set
forth in the order granting relief, payments of temporary alimony
and temporary child support are to be made from a party's
employment income and other recurring earnings, and not from the
corpus of a party's separate estate, and an award of such relief
shall not be disproportionate to a party's ability to pay as
disclosed by the evidence before the court.
(c) At any time after a party is abandoned or deserted or
after the parties to a marriage have lived separate and apart in
separate places of abode without any cohabitation, the party
abandoned or either party living separate and apart may apply for
relief pursuant to this section by instituting an action for
divorce as provided in section ten of this article, alleging thatthe plaintiff reasonably believes that the period of abandonment
or of living separate and apart will continue for the period
prescribed by the applicable provisions of section four of this
article. If the period of abandonment or living separate and
apart continues for the period prescribed by the applicable
provisions of said section, the divorce action may proceed to a
hearing as provided in sections twenty-four and twenty-five of
this article without a new complaint being filed: Provided, That
the party desiring to proceed to a hearing shall give the
opposing party at least twenty days' notice of the time, place
and purpose of the hearing, unless the opposing party shall have
filed with the court a waiver of notice of further proceedings,
signed by such opposing party. If such notice is required to be
served, it shall be served in the same manner as a complaint,
regardless of whether the opposing party has appeared or
answered.
(d) To facilitate the resolution of issues arising at a
hearing for temporary relief, the court may, or upon the motion
of either party shall, order each of the parties to file with the
court, and serve on the other party, a sworn statement of each
party's assets, liabilities and employment income and other
earnings from any source. The statement shall be in such form
and contain such detailed information as the court may prescribe
by general order. In addition, the court may, or upon the motion
of either party shall, order the parties to comply with the
disclosure requirements set forth in section thirty-three of this
article, and, if necessary, continue the hearing for temporary
relief from time to time to afford the parties an opportunity toobtain and provide such information.
(e) An ex parte order granting all or part of the relief
provided for in this section may be granted without written or
oral notice to the adverse party if:
(1) It appears from specific facts shown by affidavit or by
the verified complaint that immediate and irreparable injury,
loss or damage will result to the applicant before the adverse
party or such party's attorney can be heard in opposition. Such
potential injury, loss or damage may be anticipated when the
following conditions exist: Provided, That the following list of
conditions shall not be exclusive:
(A) There is a real and present threat of physical injury to
the applicant at the hands or direction of the adverse party;
(B) The adverse party is preparing to quit the state with a
minor child or children of the parties, thus depriving the court
of jurisdiction in the matter of child custody;
(C) The adverse party is preparing to remove property from
the state, or is preparing to transfer, convey, alienate,
encumber or otherwise deal with property which could otherwise be
subject to the jurisdiction of the court and subject to judicial
order under the provisions of this section or section fifteen of
this article; and,
(2) The movant party or his or her attorney certifies in
writing the efforts, if any, which have been made to give the
notice, and the reasons supporting his claim that notice should
not be required.
(f) Every ex parte order granted without notice shall be
endorsed with the date and hour of issuance; shall be filedforthwith in the circuit clerk's office and entered of record;
and shall set forth the finding of the court that unless the
order is granted without notice there is probable cause to
believe that existing conditions will result in immediate and
irreparable injury, loss or damage to the movant party before the
adverse party or his or her attorney can be heard in opposition.
The order granting ex parte relief shall fix a time for a hearing
for temporary relief to be held within a reasonable time, not to
exceed twenty days, unless before the time so fixed for hearing,
such hearing is continued for good cause shown or with the
consent of the party against whom the ex parte order is directed.
The reasons for the continuance shall be entered of record.
Within the time limits described herein, when an ex parte order
is made, a motion for temporary relief shall be set down for
hearing at the earliest possible time and shall take precedence
of all matters except older matters of the same character. If
the party who obtained the ex parte order fails to proceed with
a motion for temporary relief, the court shall set aside the ex
parte order. At any time after ex parte relief is granted, and
on two days' notice to the party who obtained such relief or on
such shorter notice as the court may direct, the adverse party
may appear and move the court to set aside or modify the ex parte
order on the grounds that the effects of such order are onerous
or otherwise improper. In such event, the court shall proceed to
hear and determine such motion as expeditiously as the ends of
justice require.
ARTICLE 2A. PREVENTIONS OF FAMILY VIOLENCE.
§48-2A-2. Definitions.
As used in this article, unless the context clearly requires
otherwise:
(a) "Family violence" or "abuse" means the occurrence of one
or more of the following acts between family or household
members:
(1) Attempting to cause or intentionally, knowingly or
recklessly causing physical harm to another with or without
dangerous or deadly weapons;
(2) Placing another in reasonable apprehension of physical
harm;
(3) Creating fear of physical harm by harassment,
psychological abuse or threatening acts;
(4) Committing either sexual assault or sexual abuse as
those terms are defined in articles eight-b and eight-d, chapter
sixty-one of this code; and
(5) Holding, confining, detaining or abducting another
person against that person's will.
(b) "Family or household member" means current or former
spouses, persons living as spouses, persons who formerly resided
as spouses, parents, children and stepchildren, current or former
sexual or intimate partners, other persons related by blood or
marriage, persons who are presently or in the past have resided
or cohabited together, or a person with whom the victim has a
child in common.
§48-2A-3. Jurisdiction; venue; effect of petitioner's leaving
residence; priority of petitions filed under this article;
who may file; full faith and credit; process.
(a) Jurisdiction. -- Circuit courts and magistrate courts,as constituted under chapter fifty of this code, shall have
concurrent jurisdiction over proceedings under this article.
(b) Venue. -- The action may be heard in the county in which
the abuse occurred or in the county in which the respondent is
living. If the parties are married, the action may also be
brought in the county in which an action for divorce between the
parties may be brought as provided by section eight, article two
of this chapter.
(c) Petitioner's rights. -- The petitioner's right to relief
under this article shall not be affected by his or her leaving a
residence or household to avoid further abuse.
(d) Priority of petitions. -- Any petition filed under the
provisions of this article shall be given priority over any other
civil action before the court except actions in which trial is in
progress, and shall be docketed immediately upon filing. Any
appeal to the circuit court of a magistrate's judgment on a
petition for the relief under this article shall be heard within
ten days of the filing of the appeal.
(e) Full faith and credit. -- Any temporary or final
protective order issued pursuant to this article shall be
effective throughout the state in every county. Any protective
order issued by the court of another state shall be accorded full
faith and credit and enforced as if it were an order of this
state if its terms and conditions are substantially similar to
those which may be imposed by a court of this state.
(f) Service by publication. -- A protective order may be
served on the respondent by means of a Class I legal
advertisement published notice, with the publication area beingthe county in which the respondent resides, published in
accordance with the provisions of section two, article three,
chapter fifty-nine of this code if: (i) The petitioner files an
affidavit with the court stating that an attempt at personal
service pursuant to rule four of the West Virginia rules of civil
procedure has been unsuccessful or evidence is adduced at the
hearing for the protective order that the respondent has left the
state of West Virginia; and (ii) a copy of the order is mailed by
certified or registered mail to the respondent at the
respondent's last known residence and returned undelivered.
§48-2A-5. Temporary orders of court; hearings; persons present.
(a) Upon filing of a verified petition under this article,
the court may enter such temporary orders as it may deem
necessary to protect the petitioner or minor children from abuse,
and, upon good cause shown, may do so ex parte without the
necessity of bond being given by the petitioner. Clear and
convincing evidence of immediate and present danger of abuse to
the petitioner or minor children shall constitute good cause for
purposes of this section. If the respondent is not present at
the proceeding, the petitioner or the petitioner's legal
representative shall certify to the court, in writing, the
efforts which have been made to give notice to the respondent or
just cause why notice should not be required. Copies of medical
reports or records may be admitted into evidence to the same
extent as though the original thereof. The custodian of such
records shall not be required to be present to authenticate such
records for any proceeding held pursuant to this subsection.
Following such proceeding, the court shall order a copy of thepetition to be served immediately upon the respondent, together
with a copy of any temporary order issued pursuant to the
proceedings, notice setting forth the time and place of the full
hearing and a statement of the right of the respondent to be
present and to be represented by counsel. Copies of any order
made under the provisions of this section shall also be issued to
the petitioner and any law-enforcement agency having jurisdiction
to enforce the order, including the city police, the county
sheriff's office and local office of the state police within
twenty-four hours of the entry of the order. Such initial
protective order shall remain effective until such time as a
hearing is held. The order shall be in full force and effect in
every county in this state.
(b) Within five days following the issuance of the court's
temporary order, a full hearing shall be held at which the
petitioner must prove the allegation of abuse by a preponderance
of the evidence, or such petition shall be dismissed. If the
respondent has not been served with notice of the temporary
order, the hearing may be continued in order to permit service to
be effected. The failure to obtain service upon the respondent
does not constitute a basis upon whether the petition may be
dismissed. Copies of medical reports may be admitted into
evidence to the same extent as though the original thereof, upon
proper authentication, by the custodian of such records.
(c) No person requested by a party to be present during a
hearing held under the provisions of this article shall be
precluded from being present unless such person is to be a
witness in the proceeding and a motion for sequestration has beenmade and such motion has been granted. A person found by the
court to be disruptive may be precluded from being present.
(d) If a hearing is continued, the court may make or extend
such temporary orders as it deems necessary.
§48-2A-6. Protective orders.
(a) At the conclusion of the hearing and if the petitioner
has proven the allegations of abuse by a preponderance of the
evidence, then the court shall issue a protective order which
shall direct the respondent to refrain from abusing the
petitioner and/or the minor children. 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) Awarding temporary custody of or establishing temporary
visitation rights with regard to minor children;
(3) Establishing terms of temporary visitation with regard
to the minor children including, but not limited to, requiring
third party supervision of visitations if necessary to protect
the petitioner and/or the minor children;
(4) Ordering the noncustodial parent to pay to the custodial
parent a sum for temporary support and maintenance of the
petitioner and children, if any;
(5) Ordering the respondent to pay to the petitioner a sum
for temporary support and maintenance of the petitioner, where
appropriate;
(6) Ordering the respondent to refrain from entering the
school, business or place of employment of the petitioner or
household members or family members for the purpose of violatingthe protective order;
(7) Directing the respondent to participate in counseling;
or
(8) Ordering the respondent to refrain from contacting,
telephoning, communicating, harassing or verbally abusing the
petitioner in any public place.
(b) Any final protective order shall be for a fixed period
of time not to exceed sixty days except as otherwise provided by
subsection (d), section three-a of this article. The court may
amend its order at any time upon subsequent petition filed by
either party. If the court enters an initial order for a period
of less than sixty days, it shall, after notice and hearing,
extend its initial order for the full sixty-day period if it
finds the petitioner or the minor child or children continue to
need protection from abuse. The order shall be in full force and
effect in every county in this state. The order shall state that
it is in full force and effect in every county in this state.
(c) No order under this article shall in any manner affect
title to any real property.
(d) Certified copies of any order made under the provisions
of this section shall be issued to the petitioner, the respondent
and any law-enforcement agency having jurisdiction to enforce the
order, including the city police, the county sheriff's office or
local office of the division of public safety within twenty-four
hours of the entry of the order.
(e) No mutual protective orders shall be granted unless both
parties have filed a petition under section four of this article
and have proven the allegations of abuse by a preponderance ofthe evidence.
§48-2A-9. Law-enforcement response to family violence.
(a) Notwithstanding any other provision of this code to the
contrary, all law-enforcement officers are hereby authorized to
serve all pleadings and orders filed or entered pursuant to this
article on Sundays and legal holidays. No law-enforcement
officer shall refuse to serve any pleadings or orders entered
pursuant to this article.
(b) Any law-enforcement officer responding to an alleged
incident of family violence shall inform the parties thereto of
the availability of the possible remedies provided by this
article and the possible applicability of the criminal laws of
this state. Any law-enforcement officer investigating an alleged
incident of family violence shall advise the person subject to
abuse of the availability of the family protection shelter to
which such person may be admitted.
(c) Any law-enforcement officer responding to an alleged
incident of abuse shall, in addition to providing the information
required in subsection (a) of this section, provide
transportation for or facilitate transportation of the victim or
victims, upon the request of such victim or victims, to a shelter
or the appropriate court where there is reasonable cause to
believe that such victim or victims have suffered or are likely
to suffer physical injury.
(d) Each law-enforcement agency shall maintain records on
all incidents of family or household abuse reported to it and
shall monthly make and deliver to the department of public safety
a report on a form prescribed by the department, listing all suchincidents of family or household abuse. Such reports shall
include:
(1) The age and sex of the abused and abusing parties;
(2) The relationship between the parties;
(3) The type and extent of abuse;
(4) The number and type of weapons involved;
(5) Whether the law-enforcement agency responded to the
complaint and, if so, the time involved, the action taken and the
time lapse between the agency's action and the abused's request
for assistance;
(6) Whether any prior reports have been made, received or
filed regarding family or household abuse on any prior occasion
and if so, the number of such prior reports; and
(7) The effective dates and terms of any protective order
issued prior to or following the incident to protect the abused
party: Provided, That no information which will permit the
identification of the parties involved in any incident of abuse
shall be included in such report.
(e) The department of public safety shall tabulate and
analyze any statistical data derived from the reports made by
law-enforcement agencies pursuant to this section, and publish a
statistical compilation in the department's annual uniform crime
report, as provided for in section twenty-four, article two,
chapter fifteen of this code. The statistical compilation shall
include, but is not limited to, the following:
(1) The number of family violence complaints received;
(2) The number of complaints investigated;
(3) The number of complaints received from alleged victimsof each sex;
(4) The average time lapse in responding to such complaints;
(5) The number of complaints received from alleged victims
who have filed such complaints on prior occasions;
(6) The number of aggravated assaults and homicides
resulting from such repeat incidents;
(7) The type of police action taken in disposition of the
cases; and
(8) The number of alleged violations of protective orders.
(f) As used in this section, the terms "abuse", "family
violence" and "family or household members" shall have the
meanings given them in section two of this article; and the term
"law-enforcement agency" shall include the West Virginia
department of health and human resources in those instances of
child abuse reported to the department which are not otherwise
reported to any other law-enforcement agency.
(g) The governor's committee on crime, delinquency and
correction shall develop and promulgate rules for state, county
and municipal law-enforcement officers and law-enforcement
agencies regarding the duties of law-enforcement officers and
law-enforcement agencies with respect to domestic violence. The
notice of the public hearing on the rules shall be published
before the first day of July, one thousand nine hundred ninety-
one. Prior to the publication of the proposed rules, the
governor's committee on crime, delinquency and correction shall
convene a meeting or meetings of an advisory committee to assist
in the development of the rules. The advisory committee shall be
composed of persons invited by the committee to represent state,county and local law-enforcement agencies and officers, to
represent magistrates and court officials, to represent victims
of domestic violence, to represent shelters receiving funding
pursuant to article two-c of this chapter and to represent other
persons or organizations who, in the discretion of the committee,
have an interest in the rules. The rules and the revisions
thereof as provided in this section shall be promulgated as
legislative rules in accordance with chapter twenty-nine-a of
this code. Following the promulgation of said rules, the
committee shall meet at least annually to review the rules and to
propose revisions as a result of changes in law or policy.
(h) Nothing in this section shall be construed to authorize
the inclusion of information contained in a report of an incident
of abuse in any local, state, interstate, national or
international systems of criminal identification pursuant to
section twenty-four, article two, chapter fifteen of this code:
Provided, That nothing in this section shall prohibit the
department of public safety from processing information through
its criminal identification bureau with respect to any actual
charge or conviction of a crime.
(i) All law-enforcement officers shall receive training
relating to response to calls involving family violence by the
first day of October, one thousand nine hundred ninety-three.
§48-2A-10. Enforcement procedure for temporary and final
protective orders.
(a) Upon entry of an order entered pursuant to sections five
or six of this article or an order entered pursuant to section
thirteen, article two of this chapter granting relief providedfor by this article, a copy of such order shall, no later than
the close of the next business day, be delivered by the court or
the clerk to a local office of the city police, the county
sheriff and the West Virginia department of public safety, where
it shall be placed in a confidential file, with access provided
only to the law-enforcement agency and the respondent named on
said order. A sworn affidavit may be executed by the party
awarded exclusive possession of the residence or household,
pursuant to an order entered under subsection (b), section six of
this article, and delivered to such law-enforcement agency
simultaneously with any such order, giving his or her consent for
a law-enforcement officer to enter such residence or household,
without a warrant, to enforce such protective order or temporary
order. Orders shall be promptly served upon the respondent.
Failure to serve shall not stay the effect of a valid order if
the respondent has actual notice of the existence and contents of
the order.
(b) Any person who observes a violation of such order or the
violated party 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.
(c) A respondent who abuses the petitioner and/or minor
children or who is physically present at any location in knowing
and willful violation of the terms of a temporary or final
protective order issued pursuant to the provisions of this
article shall be guilty of a misdemeanor, and, upon conviction
thereof, shall be confined in the county jail for a period of notless than one day nor more than one year, which jail term shall
include actual confinement of not less than twenty-four hours,
and shall be fined not less than two hundred fifty dollars nor
more than two thousand dollars.
(d) Any person who violates an order issued pursuant to the
provisions of this article is subject to the penalties provided
in section seven of this article.
ARTICLE 2C. DOMESTIC VIOLENCE ACT.
§48-2C-13. Confidentiality.
(a) No program or shelter receiving funds pursuant to this
article shall disclose or be compelled to disclose, release or be
compelled to release any written records created or maintained in
providing services pursuant to this article except:
(1) Upon written consent of the person seeking or who has
sought services from the program or the shelter;
(2) In any proceeding brought under sections four and five,
article six, chapter nine of this code or article six, chapter
forty-nine of this code;
(3) As mandated by article six-a, chapter forty-nine and
article six, chapter nine of this code;
(4) Pursuant to an order of any court based upon a finding
that said information is sufficiently relevant to a proceeding
before the court to outweigh the importance of maintaining the
confidentiality established by this section;
(5) To protect against a clear and substantial danger of
imminent injury by a client to him or herself or another; or
(6) For treatment or internal review purposes to the staff
of any program or shelter if the client is also being cared forby other health professionals in the program or shelter.
(b) No consent or authorization for the transmission or
disclosure of confidential information shall be effective unless
it is in writing and signed by the client. Every person signing
an authorization shall be given a copy.
CHAPTER 49. CHILD WELFARE.
ARTICLE 1. PURPOSES; DEFINITIONS.
§49-1-3. Definitions relating to abuse and neglect.
(a) "Abused child" means a child whose health or welfare is
harmed or threatened by:
(1) A parent, guardian or custodian who knowingly or
intentionally inflicts, attempts to inflict or knowingly allows
another person to inflict, physical injury or mental or emotional
injury, upon the child or another child in the home; or
(2) Sexual abuse or sexual exploitation; or
(3) The sale or attempted sale of a child by a parent,
guardian or custodian in violation of section sixteen, article
four, chapter forty-eight of this code.
In addition to its broader meaning, physical injury may
include an injury to the child as a result of excessive corporal
punishment.
(b) "Abusing parent" means a parent, guardian or other
custodian, regardless of his or her age, whose conduct, as
alleged in the petition charging child abuse or neglect, has been
adjudged by the court to constitute child abuse or neglect.
(c) "Child abuse and neglect" or "child abuse or neglect"
means physical injury, mental or emotional injury, sexual abuse,
sexual exploitation, sale or attempted sale or negligenttreatment or maltreatment of a child by a parent, guardian or
custodian who is responsible for the child's welfare, under
circumstances which harm or threaten the health and welfare of
the child.
(d) "Child abuse and neglect services" means social services
which are directed toward:
(1) Protecting and promoting the welfare of children who are
abused or neglected;
(2) Identifying, preventing and remedying conditions which
cause child abuse and neglect;
(3) Preventing the unnecessary removal of children from
their families by identifying family problems and assisting
families in resolving problems which could lead to a removal of
children and a breakup of the family;
(4) In cases where children have been removed from their
families, providing services to the children and the families so
as to restore such children to their families;
(5) Placing children in suitable adoptive homes when
restoring the children to their families is not possible or
appropriate; and
(6) Assuring the adequate care of children away from their
families when the children have been placed in the custody of the
department or third parties.
(e) "Imminent danger to the physical well-being of the
child" means an emergency situation in which the welfare or the
life of the child is threatened. Such emergency situation exists
when there is reasonable cause to believe that any child in the
home is or has been sexually abused or sexually exploited, orreasonable cause to believe that the following conditions
threaten the health or life of any child in the home:
(1) Nonaccidental trauma inflicted by a parent, guardian,
custodian, sibling or a babysitter or other caretaker; or
(2) A combination of physical and other signs indicating a
pattern of abuse which may be medically diagnosed as battered
child syndrome; or
(3) Nutritional deprivation; or
(4) Abandonment by the parent, guardian or custodian; or
(5) Inadequate treatment of serious illness or disease; or
(6) Substantial emotional injury inflicted by a parent,
guardian or custodian; or
(7) Sale or attempted sale of the child by the parent,
guardian or custodian.
(f) "Multidisciplinary team" means a group of professionals
and paraprofessionals representing a variety of disciplines who
interact and coordinate their efforts to identify, diagnose and
treat specific cases of child abuse and neglect.
Multidisciplinary teams may include, but are not limited to,
medical, child care and law-enforcement personnel, social
workers, psychologists and psychiatrists. Their goal is to pool
their respective skills in order to formulate accurate diagnoses
and to provide comprehensive coordinated treatment with
continuity and follow-up for both parents and children.
"Community team" means a multidisciplinary group which addresses
the general problem of child abuse and neglect in a given
community, and may consist of several multidisciplinary teams
with different functions.
(g) (1) "Neglected child" means a child:
(A) Whose physical or mental health is harmed or threatened
by a present refusal, failure or inability of the child's parent,
guardian or custodian to supply the child with necessary food,
clothing, shelter, supervision, medical care or education, when
such refusal, failure or inability is not due primarily to a lack
of financial means on the part of the parent, guardian or
custodian; or
(B) Who is presently without necessary food, clothing,
shelter, medical care, education or supervision because of the
disappearance or absence of the child's parent or custodian.
(2) "Neglected child" does not mean a child whose education
is conducted within the provisions of section one, article eight,
chapter eighteen of this code.
(h) "Parenting skills" means a parent's competencies in
providing physical care, protection, supervision and
psychological support appropriate to a child's age and state of
development.
(i) "Sexual abuse" means:
(A) As to a child who is less than sixteen years of age, any
of the following acts which a parent, guardian or custodian shall
engage in, attempt to engage in, or knowingly procure another
person to engage in, with such child, notwithstanding the fact
that the child may have willingly participated in such conduct or
the fact that the child may have suffered no apparent physical
injury or mental or emotional injury as a result of such conduct:
(i) Sexual intercourse; or
(ii) Sexual intrusion; or
(iii) Sexual contact; or
(B) As to a child who is sixteen years of age or older, any
of the following acts which a parent, guardian or custodian shall
engage in, attempt to engage in, or knowingly procure another
person to engage in, with such child, notwithstanding the fact
that the child may have consented to such conduct or the fact
that the child may have suffered no apparent physical injury or
mental or emotional injury as a result of such conduct:
(i) Sexual intercourse; or
(ii) Sexual intrusion; or
(iii) Sexual contact; or
(C) Any conduct whereby a parent, guardian or custodian
displays his or her sex organs to a child, or procures another
person to display his or her sex organs to a child, for the
purpose of gratifying the sexual desire of the parent, guardian
or custodian, of the person making such display, or of the child,
or for the purpose of affronting or alarming the child.
(j) "Sexual contact" means sexual contact as that term is
defined in section one, article eight-b, chapter sixty-one of
this code.
(k) "Sexual exploitation" means an act whereby:
(1) A parent, custodian or guardian, whether for financial
gain or not, persuades, induces, entices or coerces a child to
engage in sexually explicit conduct as that term is defined in
section one, article eight-c, chapter sixty-one of this code;
(2) A parent, guardian or custodian persuades, induces,
entices or coerces a child to display his or her sex organs for
the sexual gratification of the parent, guardian, custodian or athird person, or to display his or her sex organs under
circumstances in which the parent, guardian or custodian knows
such display is likely to be observed by others who would be
affronted or alarmed.
(l) "Sexual intercourse" means sexual intercourse as that
term is defined in section one, article eight-b, chapter sixty-
one of this code.
(m) "Sexual intrusion" means sexual intrusion as that term
is defined in section one, article eight-b, chapter sixty-one of
this code.
(n) "Parental rights" means any and all rights and duties
regarding a parent to a minor child, including, but not limited
to, custodial rights and visitational rights and rights to
participate in the decisions affecting a minor child.
(o) "Placement" means any temporary or permanent placement
of a child who is in the custody of the state in any foster home,
group home or other facility or residence.
(p) "Serious physical abuse" means bodily injury which
creates a substantial risk of death, which causes serious or
prolonged disfigurement, prolonged impairment of health or
prolonged loss or impairment of the function of any bodily organ.
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-11. Conviction for offenses against children.
In any case where a person is convicted of an offense
described in section twelve, article eight, chapter sixty-one of
this code; and articles eight-b and eight-d of said chapter
against any child and further has custodial, visitation or other
parental rights to the child, at the time of sentencing, thecourt shall make a finding that the person is an abusing parent
within the meaning of this article, and the court shall take such
further steps as are required by this article.
ARTICLE 6A. REPORTS OF CHILDREN SUSPECTED TO BE ABUSED OR
NEGLECTED.
§49-6A-2. Persons mandated to report suspected abuse and
neglect.
When any medical, dental or mental health professional,
Christian Science practitioner, religious healer, school teacher
or other school personnel, social service worker, child care or
foster care worker, emergency medical services personnel, peace
officer or law-enforcement official, member of the clergy,
circuit court judge, family law master or magistrate has
reasonable cause to suspect that a child is neglected or abused
or observes the child being subjected to conditions that are
likely to result in abuse or neglect, such person shall
immediately, and not more than forty-eight hours after suspecting
this abuse, report the circumstances or cause a report to be made
to the state division of human services: Provided, That in any
case where the reporter believes that the child has suffered
serious physical abuse or sexual abuse or sexual assault, the
reporter shall also immediately report, or cause a report to be
made to the department of public safety, and any law-enforcement
agency having jurisdiction to investigate the complaint:
Provided, however, That any person required to report under this
article who is a member of the staff of a public or private
institution, school, facility or agency shall immediately notify
the person in charge of such institution, school, facility oragency or a designated agent thereof, who shall report or cause
a report to be made. However, nothing in this article is
intended to prevent individuals from reporting on their own
behalf.
In addition to those persons and officials specifically
required to report situations involving suspected abuse or
neglect of children, any other person may make a report if such
person has reasonable cause to suspect that a child has been
abused or neglected in a home or institution or observes the
child being subjected to conditions or circumstances that would
reasonably result in abuse or neglect.
§49-6A-5. Reporting procedures.
Reports of child abuse and neglect pursuant to this article
shall be made immediately by telephone to the local state
department child protective service agency and shall be followed
by a written report within forty-eight hours if so requested by
the receiving agency. The state department shall establish and
maintain a twenty-four hour, seven-day-a-week telephone number to
receive such calls reporting suspected or known child abuse or
neglect.
A copy of any report of serious physical abuse, sexual abuse
or assault, shall be forwarded by the department to the
appropriate law-enforcement agency, the prosecuting attorney or
the coroner or medical examiner's office. All reports under this
article shall be confidential, and unless there are pending
proceedings with regard thereto, shall be destroyed six years
following their preparation. Reports of known or suspected
institutional child abuse or neglect shall be made and receivedas all other reports made pursuant to this article.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-12. Incest; penalty.
(a) For the purposes of this section:
(1) "Aunt" means the sister of a person's mother or father;
(2) "Brother" means the son of a person's mother or father;
(3) "Daughter" means a person's natural daughter, adoptive
daughter or the daughter of a person's husband or wife;
(4) "Father" means a person's natural father, adoptive
father or the husband of a person's mother;
(5) "Granddaughter" means the daughter of a person's son or
daughter;
(6) "Grandfather" means the father of a person's father or
mother;
(7) "Grandmother" means the mother of a person's father or
mother;
(8) "Grandson" means the son of a person's son or daughter;
(9) "Mother" means a person's natural mother, adoptive
mother or the wife of a person's father;
(10) "Niece" means the daughter of a person's brother or
sister;
(11) "Nephew" means the son of a person's brother or sister;
(12) "Sexual intercourse" means any act between persons
involving penetration, however slight, of the female sex organ by
the male sex organ or involving contact between the sex organs of
one person and the mouth or anus of another person;
(13) "Sexual intrusion" means any act between personsinvolving penetration, however slight, of the female sex organ or
of the anus of any person by an object for the purpose of
degrading or humiliating the person so penetrated or for
gratifying the sexual desire of either party;
(14) "Sister" means the daughter of a person's father or
mother;
(15) "Son" means a person's natural son, adoptive son or the
son of a person's husband or wife; and
(16) "Uncle" means the brother of a person's father or
mother.
(b) A person is guilty of incest when such person engages in
sexual intercourse or sexual intrusion with his or her father,
mother, brother, sister, daughter, son, grandfather, grandmother,
grandson, granddaughter, nephew, niece, uncle or aunt.
(c) Any person who violates the provisions of this section
shall be guilty of a felony, and, upon conviction thereof, shall
be imprisoned in the penitentiary not less than five years nor
more than fifteen years, or fined not less than five hundred
dollars nor more than five thousand dollars and imprisoned in the
penitentiary not less than five years nor more than fifteen
years.
(d) In addition to any penalty provided under this section
and any restitution which may be ordered by the court under
article eleven-a of this chapter, the court may order any person
convicted under the provisions of this section where the victim
is a minor to pay all or any portion of the cost of medical,
psychological or psychiatric treatment of the victim, the need
for which results from the act or acts for which the person isconvicted, whether or not the victim is considered to have
sustained bodily injury.
(e) In any case where a person is convicted of an offense
described herein against a child and further has or may have
custodial, visitation or other parental rights to the child, the
court shall find that the person is an abusing parent within the
meaning of article six, chapter forty-nine of this code, and
shall take such further action in accord with the provisions of
said article.
§61-8-13. Incest; limits on interviews of children eleven years
old or less; evidence.
(a) In any prosecution under the provisions of section
twelve of this article, the court may provide by rule for
reasonable limits on the number of interviews to which a victim
who is eleven years old or less must submit for law-enforcement
or discovery purposes. To the extent possible the rule shall
protect the mental and emotional health of the child from the
psychological damage of repeated interrogation and at the same
time preserve the rights of the public and the defendant.
(b) At any stage of the proceedings, in any prosecution
under this article, the court may permit a child who is eleven
years old or less to use anatomically correct dolls, mannequins
or drawings to assist such child in testifying.
(c) In any prosecution under this article in which the
victim's lack of consent is based solely on the incapacity to
consent because such victim was below a critical age, evidence of
specific instances of the victim's sexual conduct, opinion
evidence of the victim's sexual conduct and reputation evidenceof the victim's sexual conduct shall not be admissible. In any
other prosecution under this article, evidence of specific
instances of the victim's prior sexual conduct with the defendant
shall be admissible on the issue of consent: Provided, That such
evidence heard first out of the presence of the jury is found by
the judge to be relevant.
(d) In any prosecution under this article evidence of
specific instances of the victim's sexual conduct with persons
other than the defendant, opinion evidence of the victim's sexual
conduct and reputation evidence of the victim's sexual conduct
shall not be admissible: Provided, That such evidence shall be
admissible solely for the purpose of impeaching credibility, if
the victim first makes his or her previous sexual conduct an
issue in the trial by introducing evidence with respect thereto.
(e) In any prosecution under this article, neither age nor
mental capacity of the victim shall preclude the victim from
testifying.
ARTICLE 8B. SEXUAL OFFENSES.
§61-8B-11a. Convictions for offenses against children.
In any case where a person is convicted of an offense
described in this article against a child and further has or may
have custodial, visitation or other parental rights to the child,
the court shall find that the person is an abusing parent within
the meaning of article six, chapter forty-nine of this code, and
shall take such further action in accord with the provisions of
said article.
ARTICLE 8D. CHILD ABUSE.
§61-8D-9. Convictions for offenses against children.
In any case where a person is convicted of an offense
described in this article against a child and further has or may
have custodial, visitation or other parental rights to the child,
the court shall find that such person is an abusing parent within
the meaning of article six, chapter forty-nine of this code and
shall take such further action in accord with the provisions of
said article.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 1C. BAIL.
§62-1C-17a. Bail in situations of alleged child abuse.
(a) When the offense charged is an assault or other offense
against a child who is defined in section one, article eight-d,
chapter sixty-one of this code, it shall be a condition of bond
that the defendant shall not live in the same residence as and
shall have no contact with the victim of the alleged offense, and
the court may make such other conditions of bond with respect to
contact with the victim as it deems necessary under the
circumstances to protect the child: Provided, That the
requirement of no contact with the victim of the alleged offense
and all other conditions of bond may be reviewed by summary
petition from the magistrate court to the circuit court or from
the circuit court to the supreme court of appeals or any justice
thereof.
(b) In cases where the charge is a sexual offense, as
defined in chapter sixty-one of this code, against any person,
the court, upon a showing of cause, may make such conditions of
bond on the defendant or on any witness bond issued under section
fifteen of this article as it deems necessary with respect tocontact with the victim.
ARTICLE 11A. RELEASE FOR WORK AND OTHER PURPOSES.
§62-11A-1. Release for work and other purposes by courts of
record with criminal jurisdiction.
(1) When a defendant is sentenced or committed for a term of
one year or less by a court of record having criminal
jurisdiction, such court may in its order grant to such defendant
the privilege of leaving the jail during necessary and reasonable
hours for any of the following purposes:
(a) To work at his employment;
(b) To seek employment;
(c) To conduct his own business or to engage in other self-
employment, including, in the case of a woman, housekeeping and
attending to the needs of her family;
(d) To attend an educational institution;
(e) To obtain medical treatment; or
(f) To devote time to any other purpose approved of or
ordered by the court, including participation in the litter
control program of the county unless the court specifically finds
that this alternative service would be inappropriate.
(2) Whenever an inmate who has been granted the privilege of
leaving the jail under this section is not engaged in the
activity for which such leave is granted, he shall be confined in
jail.
(3) An inmate sentenced to ordinary confinement may petition
the court at any time after sentence for the privilege of leaving
jail under this section and may renew his petition in the
discretion of the court. The court may withdraw the privilege atany time by order entered with or without notice.
(4) If the inmate has been granted permission to leave the
jail to seek or take employment, the court's probation officers,
or if none, the state's division of corrections shall assist him
in obtaining suitable employment and in making certain that
employment already obtained is suitable. Employment shall not be
deemed suitable if the wages or working conditions or other
circumstances present a danger of exploitation or of interference
in a labor dispute in the establishment in which the inmate would
be employed.
(5) If an inmate is employed for wages or salary, the clerk
of the court shall collect the same, or shall require the inmate
to turn over his wages or salary in full when received, and shall
deposit the same in a trust account and shall keep a ledger
showing the status of the account of each inmate. Earnings
levied upon pursuant to writ of attachment or execution or in
other lawful manner shall be collected from the employer and
shall not be collected hereunder, but when the clerk has
requested transmittal of earnings prior to levy, such request
shall have priority. When an employer transmits such earnings to
the clerk pursuant to this subsection he shall have no liability
to the inmate for such earnings. From such earnings the clerk
shall pay the inmate's board and personal expenses both inside
and outside the jail and shall deduct installments on fines, if
any, and, to the extent directed by the court, shall pay the
support of the inmate's dependents: Provided, That at least
twenty-five percent of the earnings collected by the clerk on
behalf of an inmate shall be paid for the support of suchinmate's dependents, if any. If sufficient funds are available
after making the foregoing payments, the clerk may, with the
consent of the inmate, pay, in whole or in part, any unpaid debts
of the inmate. Any balance shall be retained, and shall be paid
to the inmate at the time of his discharge.
(6) An inmate who is serving his sentence pursuant to this
section shall be eligible for a reduction of his term for good
behavior and faithful performance of duties in the same manner as
if he had served his term in ordinary confinement.
(7) The court shall not make an order granting the privilege
of leaving the institution under this section unless it is
satisfied that there are adequate facilities for the
administration of such privilege in the jail or other institution
in which the defendant will be confined.
(8) In every case wherein the defendant has been convicted
of an offense defined in section twelve, article eight, chapter
sixty-one of this code and articles eight-b and eight-d of said
chapter, against a child, the defendant shall not live in the
same residence as any minor child, nor exercise visitation with
any minor child and shall have no contact with the victim of the
offense: Provided, That the defendant may petition the court of
the circuit wherein he was so convicted for a modification of
this term and condition of this probation and the burden shall
rest upon the defendant to demonstrate that a modification is in
the best interest of the child.
ARTICLE 12. PROBATION AND PAROLE.
§62-12-9. Conditions of release on probation.
Release on probation shall be upon the following conditions:
(1) That the probationer shall not, during the term of his
probation, violate any criminal law of this or any other state or
of the United States.
(2) That he shall not, during the term of his probation,
leave the state without the consent of the court which placed him
on probation.
(3) That he shall comply with the rules and regulations
prescribed by the court or by the board of probation and parole,
as the case may be, for his supervision by the probation officer.
(4) That in every case wherein the probationer has been
convicted of an offense defined in section twelve, article eight,
chapter sixty-one of this code or article eight-b or eight-d of
said chapter, against a child, the probationer shall not live in
the same residence as any minor child, nor exercise visitation
with any minor child, and shall have no contact with the victim
of the offense: Provided, That the probationer may petition the
court of the circuit wherein he was so convicted for a
modification of this term and condition of his probation and the
burden shall rest upon the probationer to demonstrate that a
modification is in the best interest of the child.
In addition, the court may impose, subject to modification
at any time, any other conditions which it may deem advisable,
including, but not limited to, any of the following:
(1) That he shall make restitution or reparation, in whole
or in part, immediately or within the period of probation, to any
party injured by the crime for which he has been convicted.
(2) That he shall pay any fine assessed and the costs of the
proceeding in such installments as the court may direct.
(3) That he shall make contribution from his earnings, in
such sums as the court may direct, for the support of his
dependents.
(4) That he shall, in the discretion of the court, be
required to serve a period of confinement in the county jail of
the county in which he was convicted for a period not to exceed
one third of the minimum sentence established by law or one third
of the least possible period of confinement in an indeterminate
sentence, but in no case shall such period of confinement exceed
six consecutive months. The court shall have authority to
sentence the defendant within such six-month period to
intermittent periods of confinement including, but not limited
to, weekends or holidays and may grant unto the defendant
intermittent periods of release in order that he may work at his
employment or for such other reasons or purposes as the court may
deem appropriate: Provided, That the provisions of article
eleven-a of this chapter shall not apply to such intermittent
periods of confinement and release except to the extent that the
court may direct. If a period of confinement is required as a
condition of probation, the court shall make special findings
that other conditions of probation are inadequate and that a
period of confinement is necessary.
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(NOTE: This bill makes certain technical changes to the
Family Protection Act of 1992.)