H. B. 2521

(By Delegates Stemple, Amores, Doyle, Yeager, Overington and Stalnaker)

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[Introduced February 23, 2001; referred to

the Committee on the Judiciary.]

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A BILL to amend and reenact sections three and twelve, article two- a, chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said chapter by adding thereto a new article, designated article two-d, relating to the uniform interstate enforcement of domestic violence protection orders act.

Be it enacted by the Legislature of West Virginia:
That sections three and twelve, article two-a, chapter forty- eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that said chapter be further amended by adding thereto a new article, designated article two-d, to read as follows:
ARTICLE 2A. PREVENTION AND TREATMENT OF DOMESTIC AND FAMILY VIOLENCE.

§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, have concurrent jurisdiction over proceedings under this article: Provided, That on and after the first day of April, two thousand one, magistrate court jurisdiction shall be limited, and thereafter, full hearings wherein a protective order is sought shall be heard before a circuit judge or a family law master.
(b) Venue. -- The action may be heard in the county in which the domestic or family violence occurred, in the county in which the respondent is living or in the county in which the petitioner is living, either temporarily or permanently. If the parties are married to each other, 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 relief under this article shall be heard within ten working days of the filing of the appeal.
(e) Full faith and credit. -- Any protective order issued pursuant to this article shall be effective throughout the state in every county. Any protective order issued by any other state, territory or possession of the United States, Puerto Rico, the District of Columbia or Indian tribe shall be accorded full faith and credit and enforced as if it were an order of this state whether or not such relief is available in this state. A protective order from another jurisdiction is presumed to be valid if the order appears authentic on its face and shall be enforced in this state. If the validity of the order is contested, the court or law enforcement to which the order is presented shall, prior to the full hearing, determine the existence, validity and terms of such order in the issuing jurisdiction. A protective order from another jurisdiction may be enforced even if the order is not entered into the state law-enforcement information system described by section twelve of this article. of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession of the United States, or any Indian tribe or band that has jurisdiction to enter protective orders, shall be accorded full faith and credit and enforced in accordance with the provisions of sections three and four, article two-d of this chapter.
(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 being the 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-12. Registration of order.
(a) The West Virginia state police shall maintain a registry in which it shall enter certified copies of orders entered by courts from every county in this state pursuant to the provisions of this article, or from other jurisdictions pursuant to their laws the provisions of section five, article two-d of this chapter: Provided, That the provisions of this subsection are not effective until a central automated record state law enforcement information system is developed.
(b) A petitioner who obtains a protective order pursuant to this article, or from another jurisdiction pursuant to its law, may register that order in any county within this state where the petitioner believes enforcement may be necessary.
(c) A protective order may be registered by the petitioner in a county other than the issuing county by obtaining a copy of the order of the issuing court, certified by the clerk of that court, and presenting that certified order to the local office of the West Virginia state police where the order is to be registered.
(d) Upon receipt of a certified order for registration, the local office of the state police shall provide certified copies to any law-enforcement agency within its jurisdiction, including the city any municipal police office and the county sheriff's office of the sheriff.
(e) Nothing in this section precludes the enforcement of an order in a county other than the county or jurisdiction in which the order was issued, if the petitioner has not registered the order in the county in which an alleged violation of the order occurs.
ARTICLE 2D. UNIFORM INTERSTATE ENFORCEMENT OF DOMESTIC-VIOLENCE PROTECTION ORDERS ACT.

§48-2D-1. Short title.
This article may be cited as the Uniform Interstate Enforcement of Domestic-Violence Protection Orders Act.
§48-2D-2. Definitions.
In this article:
(1) "Foreign protection order" means a protection order issued by a tribunal of another state.
(2) "Issuing state" means the state whose tribunal issues a protection order.
(3) "Mutual foreign protection order" means a foreign protection order that includes provisions in favor of both the protected individual seeking enforcement of the order and the respondent.
(4) "Protected individual" means an individual protected by a protection order.
(5) "Protection order" means an injunction or other order, issued by a tribunal under the domestic-violence or family-violence laws of the issuing state, to prevent an individual from engaging in violent or threatening acts against, harassment of, contact or communication with, or physical proximity to, another individual.
(6) "Respondent" means the individual against whom enforcement of a protection order is sought.
(7) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band that has jurisdiction to issue protection orders.
(8) "Tribunal" means a court, agency, or other entity authorized by law to issue or modify a protection order.
§48-2D-3. Judicial enforcement of order.
(a) A person authorized by the law of this state to seek enforcement of a protection order may seek enforcement of a valid foreign protection order in a tribunal of this state. The tribunal shall enforce the terms of the order, including terms that provide relief that a tribunal of this state would lack power to provide but for this section. The tribunal shall enforce the order, whether the order was obtained by independent action or in another proceeding, if it is an order issued in response to a complaint, petition, or motion filed by or on behalf of an individual seeking protection. In a proceeding to enforce a foreign protection order, the tribunal shall follow the procedures of this state for the enforcement of protection orders.
(b) A tribunal of this state may not a enforce a foreign protection order issued by a tribunal of a state that does not recognize the standing of a protected individual to seek enforcement of the order.
(c) A tribunal of this state shall enforce the provisions of a valid foreign protection order which govern custody and visitation, if the order was issued in accordance with the jurisdictional requirements governing the issuance of custody and visitation orders in the issuing state.
(d) A tribunal of this state may not enforce under the provisions this article a provision of a foreign protection order with respect to support.
(e) A foreign protection order is valid if it:
(1) Identifies the protected individual and the respondent;
(2) Is currently in effect;
(3) Was issued by a tribunal that had jurisdiction over the parties and subject matter under the law of the issuing state; and
(4) Was issued after the respondent was given reasonable notice and had an opportunity to be heard before the tribunal issued the order or, in the case of an order ex parte, the respondent was given notice and had an opportunity to be heard within a reasonable time after the order was issued, consistent with the rights of the respondent to due process.
(e) A foreign protection order valid on its face is prima facie evidence of its validity.
(f) The absence of any of the criteria for validity of a foreign protection order is an affirmative defense in an action seeking enforcement of the order.
(g) A tribunal of this state may enforce provisions of a mutual foreign protection order which favor a respondent only if:
(1) The respondent filed a written pleading seeking a protection order from the tribunal of the issuing state; and
(2) The tribunal of the issuing state made specific findings in favor of the respondent.
§48-2D-4. Nonjudicial enforcement of order.
(a) A law enforcement officer of this state, upon determining that there is probable cause to believe that a valid foreign protection order exists and that the order has been violated, shall enforce the order as if it were the order of a tribunal of this state. Presentation of a protection order that identifies both the protected individual and the respondent and, on its face, is currently in effect, constitutes probable cause to believe that a valid foreign protection order exists. For the purposes of this section, the protection order may be inscribed on a tangible medium or may have been stored in an electronic or other medium if it is retrievable in perceivable form. Presentation of a certified copy of a protection order is not required for enforcement.
(b) If a foreign protection order is not presented, a law enforcement officer of this state may consider other information in determining whether there is probable cause to believe that a valid foreign protection order exists.
(c) If a law enforcement officer of this state determines that an otherwise valid foreign protection order cannot be enforced because the respondent has not been notified or served with the order, the officer shall inform the respondent of the order, make a reasonable effort to serve the order upon the respondent, and allow the respondent a reasonable opportunity to comply with the order before enforcing the order.
(d) Registration or filing of an order in this state is not required for the enforcement of a valid foreign protection order pursuant to this article.
§48-2D-5. Registration of order.
(a) Any individual may register a foreign protection order in this state. To register a foreign protection order, an individual shall:
(1) Present a certified copy of the order to the West Virginia state police for registration in the central automated state law enforcement information system; or
(2) Present a certified copy of the order to the local of the West Virginia state police in any county of this state where the petitioner believes enforcement may be necessary. The local office of the state police shall register the order in the central automated state law enforcement information system and provide copies of the order to any law-enforcement agency within its jurisdiction, including the office of the sheriff and any municipal police office.
(b) Upon receipt of a foreign protection order, the West Virginia state police shall register the order in accordance with this section. After the order is registered, the West Virginia state police shall furnish to the individual registering the order a certified copy of the registered order.
(c) The West Virginia state police shall register an order upon presentation of a copy of a protection order which has been certified by the issuing state. A registered foreign protection order that is inaccurate or is not currently in effect must be corrected or removed from the registry in accordance with the law of this state.
(d) An individual registering a foreign protection order shall file an affidavit by the protected individual stating that, to the best of the protected individual's knowledge, the order is currently in effect.
(e) A foreign protection order registered under the provisions of this article may be entered in any existing state or federal registry of protection orders, in accordance with applicable law.
(f) A fee may not be charged for the registration of a foreign protection order.
§48-2D-6. Immunity.
This state or a local governmental agency, or a law enforcement officer, prosecuting attorney, clerk of court, or any state or local governmental official acting in an official capacity, is immune from civil and criminal liability for an act or omission arising out of the registration or enforcement of a foreign protection order or the detention or arrest of an alleged violator of a foreign protection order if the act or omission was done in good faith in an effort to comply with the provisions of this article.
§48-2D-7. Other remedies.
A protected individual who pursues remedies under the provisions of this article is not precluded from pursuing other legal or equitable remedies against the respondent.
§48-2D-8. Uniformity of application and construction.
In applying and construing this article, a uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
§48-2D-9. Severability clause.
If any provision of this article or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this article which can be given effect without the invalid provision or application, and to this end the provisions of this article are severable.
§48-2D-10. Effective date.
This article takes effect on the first day of July, two thousand one.
§48-2D-11. Transitional provision.
The provisions of this article apply to protection orders issued before the effective date of this article and to continuing actions for enforcement of foreign protection orders commenced before the effective date of this article. A request for enforcement of a foreign protection order made on or after the effective date of this article for violations of a foreign protection order occurring before the effective date of this article is governed by the provisions of this article.

NOTE: The purpose of this bill is to adopt the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act, as recommended by the National Conference of Commissioners on Uniform State Laws. In addition to the new provision, two sections of existing law are amended to avoid inconsistencies in existing law and the new proposal.

This bill has been recommended for introduction with recommendation for passage this session by the Commission on Interstate Cooperation.

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

Article 2D is new; therefore, strike-throughs and underscoring have been omitted.