COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 490
(By Senators Kessler, Laird, Palumbo, Barnes, Foster, Unger,
Oliverio, White, Wells and Plymale)
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[Originating in the Committee on the Judiciary;
reported February 19, 2010.]
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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
protective orders last for longer periods of time based upon
circumstance; establishing criteria for granting lengthier
periods of protection; requiring secured bonds to prevent
future domestic violence; making third and subsequent offenses
or violations of a protective order a felony; and penalties.
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
of this chapter:
(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.
§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 prohibiting the respondent from taking, concealing,
molesting, physically injuring, killing or otherwise disposing of
the animal and limiting or precluding contact by the respondent
with the animal; and
(14) Ordering any other relief the court deems necessary to
protect the physical safety of petitioner or protected persons.
§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 (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 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 period.
(b) Notwithstanding the provisions of subsection (a) of this
article, the court may enter a protective order for a period of one
year if the court finds by a preponderance of the evidence, after
a hearing that any of the following aggravating factors are present:
(1) That there has been a material violation of a previously
entered protective order;
(2) That two or more protective orders have been entered
against the respondent within the previous five years;
(3) That respondent has one or more prior convictions for
domestic battery or assault or a felony crime of violence where the
victim was a family or household member;
(4) That the respondent has committed a violation of the
provisions of section nine-a, article two, chapter sixty-one of this
code against a person protected by an existing order of protection;
or
(5) That the totality of the circumstances presented to the
court require a one year period in order to protect the physical
safety of the petitioner or other protected person.
(c) The court may extend a protective order entered pursuant
to subsection (b) of this section for whatever period the court
considers necessary to protect the physical safety of the petitioner
or other protected person if the court finds by a preponderance of
evidence, after a hearing of which respondent has been given notice , that:
(1) A material violation of the existing protective order has
occurred; or
(2) Respondent has committed a material violation of a
provision of a final order entered pursuant to subsection (c),
section 608, 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 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.
(c) A respondent who is convicted of a third or subsequent
offense under subsection (a) which the violation occurs within ten
years of a prior conviction of this offense is guilty of a felony,
and upon conviction thereof, shall be confined in a state
correctional facility not less than one nor more than five years or
fined not less than $500 nor more than $4,000, or both.
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(Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)