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.