COMMITTEE SUBSTITUTE

FOR

H. B. 2745

(By Delegates Douglas and Rowe)

[Originating in the House Committee on the Judiciary]



[February 23, 1996]


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, designated section three-b; and to amend and reenact sections three-a, ten-b, ten-c and ten-d of said article, all relating to prevention of domestic violence; divorce actions; providing for temporary relief by magistrates in cases where a temporary order has been entered in an action for divorce, annulment or separate maintenance; 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; violations of protective order; criminal complaints; arrest for violations of protective orders, repeat offenses, 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, designated 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 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 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 petition magistrate court for a temporary emergency protective order pursuant to this section.
(c) The only relief that a magistrate may award pursuant to this section is a temporary emergency protective order directing 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 modify an award of custody or visitation only upon a showing, by clear and convincing evidence, of the respondent's abuse of a child, as abuse is defined in section two of this article. Any such modification shall be clearly described in the order as to which party has custody and why custody or visitation arrangements were changed.
(d) A copy of any temporary emergency protective order issued by a magistrate pursuant to this section, together with a copy of the petition, shall be transmitted forthwith by mail or by facsimile machine to the family law master before whom the action is pending and to law-enforcement agencies. Upon receipt of the petition and order, the master shall examine its provisions. Within ten days of the magistrate's issuance of the temporary emergency protective order, the master shall issue an order either to extend such emergency protection for a time certain or to vacate the magistrate's order. If no temporary order pursuant to section thirteen, article two, chapter forty- eight of this code had been entered, the master shall vacate the magistrate's order. The master shall forthwith give notice to all parties and to the issuing magistrate court. The magistrate court clerk shall forward a copy of the master's order to law- enforcement agencies.
§48-2A-10b. Violations of protective orders; criminal complaints.
(a) When a respondent abuses the petitioner and/or minor children or 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, 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-a 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) When a family or household member is alleged to have committed a violation of the provisions of section ten-d of this article, 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 (b), section fourteen of this article, 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 ten-d of this article; or
(3) The law-enforcement officer has observed credible evidence that the accused committed the offense.
(b)(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.
(c)(d) 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 offenses of for violation of protective order., repeat offenses, penalties.

(a) 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 is 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.
(b) When a respondent previously convicted of the offense described in subsection (a) of this section abuses the petitioner and/or minor children or is physically present at any location in knowing and willful violation of the terms of a temporary or final protective order issued under the provisions of this article, the respondent is guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned in the county or regional jail for not less than three months nor more than one year, or fined not less than five hundred dollars nor more than three thousand dollars, or both.

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.