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Introduced Version Senate Bill 490 History

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SB490 intr
Senate Bill No. 490

(By Senators Kessler, Laird, Palumbo, Barnes, Foster, Unger, Oliverio, White, Wells and Plymale)

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[Introduced February 5, 2010; referred to the Committee on the Judiciary.]

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A BILL to amend and reenact §48-27-202, §48-27-503, §48-27-505, §48-27-901 and §48-27-903 of the Code of West Virginia, 1931, as amended, all relating to prevention and treatment of domestic violence; providing that family court judges may make orders last for longer periods of time; including in the definition of "domestic violence" the utilization of cruelty or other actions to family pets and other animals; closing a loophole in the use of bonds to prevent future domestic violence; and making second and subsequent offenses of violations of a protective order a felony.

Be it enacted by the Legislature of West Virginia:
That §48-27-202, §48-27-503, §48-27-505, §48-27-901 and §48- 27-903 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
PART 2. DEFINITIONS.

§48-27-202. Domestic violence defined.
"Domestic violence" or "abuse" means the occurrence of one or more of the following acts between family or household members, as that term is defined in section 27-204:
(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, stalking, 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; and
(6) Inflicting, or attempting to inflict, physical injury on

or seizing, taking or secreting forcibly or by stealth or otherwise
any animal owned, possessed, leased, kept or held by an adult or
minor child, family or household member, or placing an adult or minor child in fear of physical harm to any animal owned, possessed, leased, kept or held by the adult or minor child, family or household member.
§48-27-503. Permissive provisions in protective order.
The terms of a protective order may include:
(1) Granting possession to the petitioner of the residence or household jointly resided in at the time the abuse occurred;
(2) Ordering the respondent to refrain from entering or being present in the immediate environs of the residence of the petitioner;
(3) Awarding temporary custody of or establishing temporary visitation rights with regard to minor children named in the order;
(4) Establishing terms of temporary visitation with regard to the minor children named in the order including, but not limited to, requiring third party supervision of visitations if necessary to protect the petitioner and/or the minor children;
(5) Ordering the noncustodial parent to pay to the caretaker parent a sum for temporary support and maintenance of the petitioner and children, if any;
(6) Ordering the respondent to pay to the petitioner a sum for temporary support and maintenance of the petitioner, where appropriate;
(7) Ordering the respondent to refrain from entering the school, business or place of employment of the petitioner or household or family members for the purpose of violating the protective order;
(8) Ordering the respondent to participate in an intervention program for perpetrators;
(9) Ordering the respondent to refrain from contacting, telephoning, communicating, harassing or verbally abusing the petitioner;
(10) Providing for either party to obtain personal property or other items from a location, including granting temporary possession of motor vehicles owned by either or both of the parties, and providing for the safety of the parties while this occurs, including ordering a law-enforcement officer to accompany one or both of the parties;
(11) Ordering the respondent to reimburse the petitioner or other person for any expenses incurred as a result of the domestic violence, including, but not limited to, medical expenses, transportation and shelter; and
(12) Ordering the petitioner and respondent to refrain from transferring, conveying, alienating, encumbering or otherwise dealing with property which could otherwise be subject to the jurisdiction of the court or another court in an action for divorce or support, partition or in any other action affecting their interests in property;
(13) Awarding the petitioner the exclusive care, possession, or control of any animal owned, possessed, leased, kept or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent and prohibit the respondent from taking, encumbering, concealing, molesting, attacking, striking, harming or otherwise disposing of the animal; and
(14) Ordering the respondent to stay away from any animal owned, possessed, leased, kept or held by either the petitioner or the respondent and prohibit the respondent from taking, encumbering, concealing, molesting, attacking, striking, harming or otherwise disposing of the animal.
§48-27-505. Time period a protective order is in effect; extension of order; notice of order or extension.

(a) Except as otherwise provided in subsection (b) of this section or in subsection (d), section four hundred one of this article, a protective order, entered by the family court pursuant to this article, is effective for either ninety days or one hundred eighty days, in the discretion of the court. If the court enters an order for a period of ninety days, upon receipt of a written request for renewal from the petitioner prior to the expiration of the ninety-day period original order, the family court shall extend its order for an additional ninety-day like period.
(b) The court may enter a protective order for a period of one year if it finds, after hearing the evidence, that this duration is proper under the facts and circumstances of the case. The court shall, upon the request of the petitioner, enter a protective order for a period of one year if the court specifically finds after hearing the evidence that any of the following aggravating factors alleged in the pleading are present:
(1) Violation of an existing protective order;
(2) Entry of two or more protective orders against the respondent within the last five years;
(3) One or more domestic violence-related convictions of the respondent; or
(4) The commission of any act specified in section nine-a, article two, chapter sixty-one of this code, regardless of whether criminal prosecution has occurred against the petitioner by the respondent during the term of a protective order.
(c) The court may extend the protective order for whatever period the court considers necessary to protect the safety of the petitioner and others threatened or at risk if the court finds, after review of a written pleading from the petitioner and hearing the evidence, that:
(A) A violation of an existing protective order has occurred; or (1) violation of an existing protective order; (2) entry of two or more protective orders against the respondent within the last five years; (3) one or more domestic-violence related criminal convictions of the respondent; (4) the commission of any act specified in section nine-a, article two, chapter sixty-one of this code, regardless of whether criminal prosecution has occurred against the petitioner by the respondent during the term of a protective order; or
(B) Upon a motion for a modification of a final divorce order, a violation of a provision of a final order entered pursuant to section 508 (a) or (b), article five of this chapter has occurred.
(b) (d) To be effective, a written request to extend renew an order from ninety days to one hundred eighty days a ninety or one hundred eighty-day order must be submitted to the court prior to the expiration of the original ninety-day order period. A notice of the extension shall be sent by the clerk of the court to the respondent by first-class mail, addressed to the last known address of the respondent as indicated by the court file. The extension of time is effective upon mailing of the notice.
(c) (e) Certified copies of any order entered or extension notice made under the provisions of this section shall be served upon the respondent by first class mail, addressed to the last known address of the respondent as indicated by the court file, and delivered to the petitioner 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 West Virginia State Police within twenty-four hours of the entry of the order. The protective order shall be in full force and effect in every county of this state.
(d) (f) The family court may modify the terms of a protective order upon motion of either party.
(e) (g) The clerk of the circuit court shall cause a copy of any protective order entered by the family court pursuant to the provisions of this article or pursuant to the provisions of chapter forty-eight of this code to be forwarded to the magistrate or magistrate court clerk and the magistrate or magistrate court clerk shall forward a copy of the protective order to the appropriate state and federal agencies for registration of domestic violence offenders as required by state and federal law.
PART 9. SANCTIONS.

§48-27-901. Civil contempt; violation of protective orders; order to show cause.

(a) Any party to a protective order or a legal guardian or guardian ad litem may file a petition for civil contempt alleging a violation of an order issued pursuant to the provisions of this article. The petition shall be filed in the family court, if a family court entered an order or in the circuit court, if a circuit court entered the order, in the county in which the violation occurred or the county in which the order was issued.
(b) When a petition for an order to show cause is filed, a hearing on the petition shall be held within five days from the filing of the petition. Any order to show cause which is issued shall be served upon the alleged violator.
(c) Upon a finding of contempt, the court may order the violator to comply with specific provisions of the protective order and post a bond as surety for faithful compliance with such the order. The bond may not be a personal recognizance bond and shall be in an amount that does not exceed the ability of the violator to post. The bond may not be waived by a fee waiver pursuant to the provisions of section one, article two, chapter fifty-nine of this code.
§48-27-903. Misdemeanor offenses for violation of protective order, repeat offenses are felonies, penalties.

(a) Any person who knowingly and willfully violates:
(1) A provision of an emergency or final protective order entered pursuant to: (A) subsection (a) or (b) of section five hundred two of this article; (B) if the court has ordered such relief; subsection (2), (7) or (9) of section five hundred three of this article; (C) subsection (b) or (c) of section five hundred nine, article five of this chapter; or (D) subsection (b) or (c) of section six hundred eight, article five of this chapter; or
+(2) A condition of bail, probation or parole which has the express intent or effect of protecting the personal safety of a particular person or persons; is guilty of a misdemeanor and, upon conviction thereof, shall be confined in 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 $250 nor more than $2,000.
(b) Any person who is convicted of a second or subsequent offense under subsection (a) of this section is guilty of a misdemeanor felony and, upon conviction thereof, shall be confined in jail for not less than three months nor more than one year, which jail term shall include actual confinement of not less than twenty- four hours, and fined not less than $500 nor more than $3,000, or both imprisoned in a state correctional facility for not less than one nor more than five years.



NOTE: The purpose of this bill is to provide family court judges flexibility to deal with different kinds of domestic violence by allowing them to make orders last for longer periods of time. The bill includes in the definition of domestic violence the
utilization of cruelty or other actions to family pets and other
animals; to close a loophole in the use of bonds to prevent
future domestic violence; and to make second and subsequent
offenses of violations of a protective order a felony.

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