H. B. 2585
(By Delegate Buchanan)
[Introduced March 18, 1997; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section three-b, article two-a,
chapter forty-eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
temporary emergency protective orders issued in magistrate
court when a temporary divorce, annulment or separation
order is in effect.
Be it enacted by the Legislature of West Virginia:
That section three-b, 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-3b. Proceedings in magistrate court when temporary divorce, annulment or separation order is in effect.
(a) The provisions of this section apply where a temporary order has been entered by a family law master or judge in an
action for divorce, annulment or separate maintenance,
notwithstanding the provisions of subsection (c), section three-a
of this article.
(b) A person who is a party in an action for divorce,
annulment or separate maintenance in which a temporary order has
been entered pursuant to section thirteen, article two of this
chapter may petition magistrate court for a temporary emergency
protective order pursuant to this section for any violation of
the provisions of this article occurring after the date of entry
of the temporary order.
(c) The only relief that a magistrate may award pursuant to
this section is a temporary emergency protective order directing
the respondent to refrain from abusing the petitioner and minor
children, to order 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 and to order the respondent to refrain from
contacting, telephoning, communicating, harassing or verbally
abusing the petitioner in any public place. Such order may
modify an award of custody or visitation only upon a showing, by
clear and convincing evidence, of the respondent's abuse of a
child, as abuse is defined in section two of this article. Any
such modification shall be clearly described in the order as to which party has custody and why custody or visitation
arrangements were changed.
(d) A copy of any temporary emergency protective order issued
by a magistrate pursuant to this section, together with a copy of
the petition, shall be transmitted forthwith by mail or by
facsimile machine to the family law master before whom the action
is pending and to law-enforcement agencies. Upon receipt of the
petition and order, the master shall examine its provisions.
Within ten days of the magistrate's issuance of the temporary
emergency protective order, the master shall issue an order
either to extend such emergency protection for a time certain or
to vacate the magistrate's order. The master shall forthwith
give notice to all parties within five days of the entry of his
order and to the issuing magistrate court. The magistrate court
clerk shall forward a copy of the master's order to
law-enforcement agencies. Upon written request by a party to the
action or a request by the party's attorney, the family law
master shall conduct a hearing within twenty days of the receipt
of the request upon the issues raised in the petition or
petitions which caused the issuance of the temporary emergency
protective order.
If no temporary order pursuant to section thirteen, article
two of this chapter has been entered, the master shall forthwith
return the order with such explanation to the issuing magistrate. The magistrate who issued the order shall vacate the order,
noting thereon the reason for termination. The magistrate court
clerk shall transmit a copy of the vacated order to the
parties and law-enforcement agencies.
NOTE: The purpose of this bill is to require law masters to
follow certain time requirements when giving notice to the
parties when the law master extends a temporary emergency
protective order issued by a magistrate. The bill further
requires the law master to conduct a hearing within twenty days
if requested by a party.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.