Enrolled Version - Final Version (2)
House Bill 3178 History
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Key: Green = existing Code. Red = new code to be enacted
SECOND ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 3178
(Delegates Brown, Amores, Staton, Webster, Hrutkay and Mahan)
[Amended and again passed April 16,2005, as a result of the
objections of the Governor; in effect from passage.]
AN ACT
to amend and reenact §48-5-608 of the Code of West Virginia,
1931, as amended; and to amend and reenact §48-27-401, §48-27-
503, §48-27-504, §48-27-902 and §48-27-1001 of said code, all
relating to domestic violence generally; extending protection
to any residence; expanding bases for temporary protective
orders; and providing authority to arrest for violations of
out of state court orders.
Be it enacted by the Legislature of West Virginia:
That
§48-5-608 of the Code of West Virginia, 1931, as amended
be amended and reenacted; and that §48-27-401, §48-27-503, §48-27-
504, §48-27-902 and §48-27-1001
of said code be amended and
reenacted, all to read as follows:
ARTICLE 5. DIVORCE.
§48-5-608. Injunctive relief or protective orders.
(a) When allegations of abuse have been proved, the court
shall enjoin the offending party from molesting or interfering with
the other, or otherwise imposing any restraint on the personal
liberty of the other or interfering with the custodial or
visitation rights of the other. The order may permanently enjoin
the offending party from entering the school, business or place of
employment of the other for the purpose of molesting or harassing
the other or from entering or being present in the immediate
environs of the residence of the petitioner or from contacting the
other, in person or by telephone, for the purpose of harassment or
threats; or from harassing or verbally abusing the other. The
relief afforded by the provisions of this subsection may be ordered
whether or not there are grounds for relief under subsection (c) of
this section and whether or not an order is entered pursuant to
such subsection.
(b) Any order entered by the court to protect a party from
abuse may grant any other relief authorized to be awarded by the
provisions of article twenty-seven of this chapter, if the party
seeking the relief has established the grounds for that relief as
required by the provisions of said article. The relief afforded by
the provisions of this subsection may be ordered whether or not
there are grounds for relief under subsection (c) of this section
and whether or not an order is entered pursuant to subsection (c) of this section.
(c) The court, in its discretion, may enter a protective
order, as provided by the provisions of article twenty-seven of
this chapter, as part of the final relief in a divorce action,
either as a part of a order for final relief or in a separate
written order. A protective order entered pursuant to the
provisions of this subsection shall remain in effect for the period
of time ordered by the court not to exceed one hundred eighty days:
Provided, That the court may extend the protective order for
whatever period the court deems necessary to protect the safety of
the petitioner and others threatened or at risk, if the court
determines:
(A) That a violation of a protective order entered during or
extended by the divorce action has occurred; or
(B) Upon a motion for modification, that a violation of a
provision of a final order entered pursuant to this section has
occurred.
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
§48-27-401. Interaction between domestic proceedings.
(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 part 5-501, et seq.;
(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 order has been entered in the action for divorce,
annulment and separate maintenance, pursuant to Part 5-501, et
seq.;
(c) Except as provided in section 5-509 of this chapter and
section 27-402 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 Part 5-501, et seq. 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 section
27-505, when an action seeking a divorce, an annulment or separate
maintenance, the allocation of custodial responsibility or a habeas
corpus action to establish custody, the establishment of paternity,
the establishment or enforcement of child support, or other relief
under the provisions of this chapter is filed or is reopened by
petition, motion or otherwise, then any order issued pursuant to
this article which is in effect on the day the action is filed or
reopened shall remain in full force and effect by operation of this statute until: (1) A temporary order other than a procedural order
or a final order is entered pursuant to the provisions of part 5-
501, et seq. or part 6-601 et seq. of this chapter; or (2) an order
is entered modifying such order issued pursuant to this article; or
(3) the entry of a final order granting or dismissing the action.
§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.
§48-27-504. Provisions in protective order for person witnessing
or reporting domestic violence.
When the person to be protected is a person who reported or
was a witness to the domestic violence, the terms of a protective
order may order:
(1) The respondent to refrain from abusing, contacting,
telephoning, communicating, harassing, verbally abusing or
otherwise intimidating the person to be protected;
(2) The respondent to refrain from entering the school,
business or place of employment of the person to be protected for
the purpose of violating the protective order; and
(3) The respondent to refrain from entering or being present
in the immediate environs of the residence of the petitioner.
§48-27-902. Violations of protective orders; criminal complaints.
(a) When a respondent abuses the petitioner or minor children,
or both, or is physically present at any location:
(1) In knowing and willful violation of the terms of an
emergency or final protective order under the provisions of this
article or sections 5-509 or 5-608 of this chapter granting the
relief pursuant to the provisions of this article;
(2) In knowing and willful violation of the terms of a
protection order from another jurisdiction that is required to be
enforced pursuant to section 3, article 28 of this chapter; or
(3) In knowing and willful violation of the terms of a
condition of bail, probation or parole imposed in another state
which has the express intent or effect of protecting the personal
safety of a particular person or persons in violation of section
28-7(a)(3) of this chapter then any person authorized to file a
petition pursuant to the provisions of section 27-305 or the legal
guardian or guardian ad litem may file a petition for civil
contempt as set forth in section 27-901.
(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.
§48-27-1001. Arrest for violations of protective orders.
(a) When a law-enforcement officer observes any respondent
abuse the petitioner or minor children or the respondent's physical
presence at any location in knowing and willful violation of the
terms of an emergency or final protective order issued under the
provisions of this article or section 5-509 or 5-608 of this
chapter granting the relief pursuant to the provisions of this
article, in knowing and willful violation of the terms of a
protection order from another jurisdiction that is required to be
enforced pursuant to section four, article twenty-eight of this
chapter, 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 27-903 or 28-7,
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 27-1002(b), 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 27-903; or
(3) The law-enforcement officer has observed credible evidence
that the accused committed the offense.
(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.
(d) Where there is an arrest, the officer shall take the
arrested person before a circuit court or a magistrate and, upon a
finding of probable 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.