H. B. 2745
(By Delegates Douglas and Rowe)
[Introduced January 10, 1996; referred to the Committee
on the Judiciary.]
A BILL to amend article two-a, chapter forty-eight of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designed section
three-b; and to amend a reenact sections three-a, ten-b,
ten-c and ten-d of said article relating to domestic
violence; providing for temporary relief by magistrates in
cases where a temporary order has been entered in an action
for divorce, annulment or separate maintenance between the
same parties; clarifying that it is a crime to abuse a party
or children or be physically present at a location in
knowing and willful violation of the terms of a protective
order whether it is issued by a magistrate, a family law
master or a circuit judge; and criminal penalties.
Be it enacted by the Legislature of West Virginia:
That article two-a, chapter forty-eight of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section designed section three-b; and that sections three-a, ten-b, ten-c and ten-d of said article
be amended and reenacted, all to read as follows:
ARTICLE 2A. PREVENTION OF DOMESTIC VIOLENCE.
§48-2A-3a. Divorce actions.
(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 section
thirteen, article two of this chapter.
(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 or permanent order has been entered in the
action for divorce, annulment and separate maintenance, pursuant
to section thirteen, article two of this chapter.
(c) Except as provided in section three-b of this article,
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 section thirteen, article two 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 subsection
(b), section six of this article, any order issued pursuant to this section where a subsequent action is filed seeking a
divorce, annulment or separate maintenance, shall remain in full
force and effect by operation of this statute until a temporary
or final order is issued pursuant to section thirteen, article
two of this chapter or a final order granting or dismissing the
action for divorce, annulment or separate maintenance.
§48-2A-3b. Proceedings in magistrate court when temporary
divorce, annulment or separation order is in
effect.
(a) The provisions of this section apply where a temporary
order has been entered by a family law master or judge in an
action for divorce annulment or separate maintenance
notwithstanding the provisions of subsection (c), section three-a
of this article.
(b) A person who is a party in an action for divorce,
annulment or separate maintenance in which a temporary order has
been entered pursuant to section thirteen, article two of this
chapter may commence an action and seek relief pursuant to
sections four, five and six of this article except as limited by
this section.
(c) A magistrate is authorized to grant relief pursuant to
sections five and six of this article to a person commencing and
action and seeking relief pursuant to subsection (b) of this
section. The entitlement of any party proceeding pursuant to
this section to rights or benefits of provisions of this article
shall not be limited except as provided by this section.
(d) The only relief that a magistrate may award pursuant to
sections five and six of this article is to direct the respondent
to refrain from abusing the petitioner and/or minor children, to
order 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 violating the
protective order, and to order the respondent to refrain from
contacting, telephoning, communicating, harassing or verbally
abusing the petitioner in any public place. Such order may not
modify an award of custody, visitation or other relief in the
temporary order of the family law master or circuit judge except
as provided in subsection (e) of this section. This relief may
only be awarded if it does not directly conflict with a provision
of the temporary order of the family law master or judge.
(e) An order of a magistrate made pursuant to this section
may add terms and conditions to an award of custody, visitation
or other relief if reasonably necessary to minimize contact
between parties or otherwise carry out the order of the
magistrate protecting a party from abuse.
(f) After the issuance of a temporary order pursuant to this
section and section five of this article a full hearing shall be
held as provided in section five of this article. In the
alternative a party may request the family law master who issued
the temporary order in the action for divorce, annulment or
separate maintenance between the parties to hold the full hearing
and if the full hearing can be set within eleven days of the issuance of the magistrates temporary protective order the family
law master or judge is authorized to hold the full hearing and,
if warranted by the evidence, issue a separate protective order
or modify the existing temporary order to include a protective
order authorized by this article.
(g) A protective order issued by a magistrate pursuant to
this section and section six of this article shall be immediately
transmitted to the family law master or circuit judge who issued
the temporary order in an action for divorce, annulment or
separate maintenance. Upon receipt of the order the master or
judge shall examine its provisions. The master or judge may
vacate the order on his or her own to the extent it conflicts
with any existing order in the divorce, annulment or separate
maintenance action between the parties, and may do so without
notice or hearing if the circumstances require. The family law
master or judge may set a temporary hearing to determine whether
to vacate or modify the protective order or the temporary order
issued by the master or judge. If requested by any party the
family law master or judge shall set a hearing to hear a motion
to vacate or modify the protective order or the temporary order
issued by he master or judge. An order issued by a magistrate
pursuant to this section may be modified or vacated at a hearing
before a family law master or circuit court judge in an action
for divorce, annulment or separate maintenance between the
parties in the same manner as a temporary order of the family law
master or circuit judge may be modified.
(h) In the alternative to any of the procedural provisions
of this section the chief circuit court judge of any circuit may
enter a general order for any county in his or her circuit so
long as it provides for immediate hearings on petitions for
temporary orders and prompt full hearings on the issuance of
protective orders. Any general order entered pursuant to this
subsection shall provide the procedures for the setting and
holding of such hearings and shall be posted or otherwise made
available to persons seeking relief in the magistrate courts
pursuant to this article.
§48-2A-10b. Violations of protective orders; criminal complaints.
(a) When a respondent abuses the petitioner and/or minor
children or physically present at any location in knowing and
willful violation of the terms of a temporary or final protective
order issued by a magistrate, a circuit court judge or a family
law master under the provisions of this article or subdivision
(12), subsection (a), section thirteen, article two, chapter
forty-eight of this code, any person authorized to file a
petition pursuant to the provisions of section four of this
article or the legal guardian or guardian ad litem may file a
petition for civil contempt as set forth in section ten of this
article.
(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.
§48-2A-10c. Arrest for violations of protective orders.
(a) When a law-enforcement officer observes any respondent
abuse the petitioner and/or minor children or the respondent's
physical presence at any location in knowing and willful
violation of the terms of a temporary or final protective order
issued by a magistrate, a circuit court judge or a family law
master under the provisions of this article or subdivision (12),
subsection (a), section thirteen, article two, chapter forty-
eight of this code, he or she shall immediately arrest the
respondent.
(b) 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 laws-enforcement officer to promptly investigate the alleged
violation.
(c) Where there is an arrest, the officer shall take the
arrested person before a court or a magistrate and, upon a
finding of probably 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.
§48-2A-10d. Misdemeanor offense of violation of protective
order.
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 by a magistrate, a circuit court judge or a family
law master under the provisions of this article or subdivision
(12), subsection (a), section thirteen, article two, chapter
forty-eight of this code, shall be guilty of a misdemeanor, and,
upon conviction thereof, shall be confined in the county or
regional jail for a period of not less 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 or more than two thousand dollars.
NOTE: The purposes of this bill are 1) to clarify that
whether the domestic violence protective order was issued by a
magistrate, a family law master or a circuit court judge, the
respondent has committed a crime if the respondent violates the
order by abusing a protected party or by being physically present
at a location in knowing and willful violation of the terms of
the order, and 2) to provide for temporary relief by magistrates
in cases where a temporary order has been entered in an action
for divorce, annulment or separate maintenance between the same
parties.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
Section 3b is new; therefore, strike-throughs and
underscoring have been omitted.