H. B. 2521
(By Delegates Thompson, Hunt, Amores, Tillis,
Staton and Douglas)
[Introduced February 16, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections five and six, article two-a,
chapter forty-eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
making restraining orders in domestic violence cases
applicable to petitioners as well as respondents.
Be it enacted by the Legislature of West Virginia:
That sections five and six, article two-a, chapter
forty-eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted to read
as follows:
ARTICLE 2A. PREVENTION OF DOMESTIC VIOLENCE.
§48-2A-5. Temporary orders of court; hearings; persons present.
(a) Upon filing of a verified petition under this article,
the court may enter such temporary orders as it may deem
necessary to protect the petitioner or minor children from abuse
and, upon good cause shown, may do so ex parte without the
necessity of bond being given by the petitioner: Provided, That
any order requiring the respondent to refrain from contacting,
telephoning, communicating, harrassing or verbally abusing the
petitioner in any place shall mutually require the petitioner
from any prohibited contact, communication or harrassing or
abusing behavior directed toward the respondent. Clear and
convincing evidence of immediate and present danger of abuse to
the petitioner or minor children shall constitute good cause for
purposes of this section. If the respondent is not present at
the proceeding, the petitioner or the petitioner's legal
representative shall certify to the court, in writing, the
efforts which have been made to give notice to the respondent or
just cause why notice should not be required. Copies of medical
reports or records may be admitted into evidence to the same extent as though the original thereof. The custodian of such the
records shall not be required to be present to authenticate such
records for any proceeding held pursuant to this subsection.
Following such proceeding, the court shall order a copy of the
petition to be served immediately upon the respondent, together
with a copy of any temporary order issued pursuant to the
proceedings, notice setting forth the time and place of the full
hearing and a statement of the right of the respondent to be
present and to be represented by counsel. Copies of any order
made under the provisions of this section shall also be issued to
the petitioner and any law-enforcement agency having jurisdiction
to enforce the order, including the city police, the county
sheriff's office and local office of the state police within
twenty-four hours of the entry of the order. Such The initial
protective order shall remain effective until such time as a
hearing is held. The order shall be in full force and effect in
every county in this state.
(b) Within five days following the issuance of the court's temporary order, a full hearing shall be held at which the
petitioner must prove the allegation of abuse by a preponderance
of the evidence or such petition shall be dismissed. If the
respondent has not been served with notice of the temporary
order, the hearing may be continued in order to permit service to
be effected. The failure to obtain service upon the respondent
does not constitute a basis upon whether the petition may be
dismissed. Copies of medical reports may be admitted into
evidence to the same extent as though the original thereof, upon
proper authentication, by the custodian of such records.
(c) No person requested by a party to be present during a
hearing held under the provisions of this article shall be
precluded from being present unless such person is to be a
witness in the proceeding and a motion for sequestration has been
made and such the motion has been granted. A person found by the
court to be disruptive may be precluded from being present.
(d) If a hearing is continued, the court may make or extend
such temporary orders as it deems necessary.
§48-2A-6. Protective orders.
(a) At the conclusion of the hearing and if the petitioner
has proven the allegations of abuse by a preponderance of the
evidence, then the court shall issue a protective order which
shall direct the respondent to refrain from abusing the
petitioner and/or the minor children. 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) Awarding temporary custody of or establishing temporary
visitation rights with regard to minor children;
(3) Establishing terms of temporary visitation with regard
to the minor children including, but not limited to, requiring
third party supervision of visitations if necessary to protect
the petitioner and/or the minor children;
(4) Ordering the noncustodial parent to pay to the custodial
parent a sum for temporary support and maintenance of the
petitioner and children, if any;
(5) Ordering the respondent to pay to the petitioner a sum for temporary support and maintenance of the petitioner, where
appropriate;
(6) Ordering the respondent to refrain from entering the
school, business or place of employment of the petitioner or
household members or family members for the purpose of violating
the protective order;
(7) Directing the respondent to participate in counseling;
or
(8) Ordering the respondent and the petitioner to refrain
from contacting, telephoning, communicating, harassing or
verbally abusing the petitioner in any public place. each other.
(b) Any final protective order shall be for a fixed period
of time not to exceed ninety days except as otherwise provided by
subsection (d), section three-a of this article. The court may
amend its order at any time upon subsequent petition filed by
either party. If the court enters an initial order for a period
of less than ninety days, it shall, after notice and hearing,
extend its initial order for the full ninety-day period if it finds the petitioner or the minor child or children continue to
need protection from abuse. The order shall be in full force and
effect in every county in this state. The order shall state that
it is in full force and effect in every county in this state.
(c) No order under this article shall in any manner affect
title to any real property.
(d) Certified copies of any order made under the provisions
of this section shall be issued to the petitioner, the respondent
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 division of public safety within twenty-four
hours of the entry of the order.
(e) No mutual protective orders shall be granted unless both
parties have filed a petition under section four of this article
and have proven the allegations of abuse by a preponderance of
the evidence.
NOTE: The purpose of this bill is to make restraining orders in domestic violence cases applicable to petitioners as
well as respondents.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.