H. B. 2229
(By Delegates Hamilton, Wakim, Hrutkay and Yost)
[Introduced February 11, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §48-27-403 of the code of West
Virginia, 1931, as amended, relating to juvenile perpetrators
of domestic violence and providing for detention of certain
juveniles when alternative placement is not appropriate.
Be it enacted by the Legislature of West Virginia:
That §48-27-403 of the code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
§48-27-403. Emergency protective orders of court; hearings;
persons present.
(a) Upon the filing of a verified petition under this article,
the magistrate court may enter an emergency protective order as it
may deem necessary to protect the petitioner or minor children from
domestic violence and, upon good cause shown, may do so ex parte
without the necessity of bond being given by the petitioner. Clear and convincing evidence of immediate and present danger of abuse to
the petitioner or minor children shall constitute good cause for
the issuance of an emergency protective order pursuant to 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 records shall not be required to be present
to authenticate such records for any proceeding held pursuant to
this subsection. If the magistrate court determines to enter an
emergency protective order, the order shall prohibit the respondent
from possessing firearms.
(b) Following the proceeding, the magistrate court shall order
a copy of the petition to be served immediately upon the
respondent, together with a copy of any emergency protective order
entered pursuant to the proceedings, a notice of the final hearing
before the family court and a statement of the right of the
respondent to appear and participate in the final hearing, as
provided in subsection (d) of this section. Copies of any order
entered under the provisions of this section, a notice of the final
hearing before the family court and a statement of the right of the
petitioner to appear and participate in the final hearing, as provided in subsection (d) of this section, shall also be delivered
to the petitioner. Copies of any order entered shall also be
delivered to any law-enforcement agency having jurisdiction to
enforce the order, including municipal police, the county sheriff's
office and local office of the state police, within twenty-four
hours of the entry of the order. An emergency protective order is
effective until modified by order of the family court upon hearing
as provided in subsection (d) of this section. The order is in
full force and effect in every county in this State.
(c) Subsequent to the entry of the emergency protective order,
service on the respondent and the delivery to the petitioner and
law-enforcement officers, the court file shall be transferred to
the office of the clerk of the circuit court for use by the family
court.
(d) The family court shall schedule a final hearing on each
petition in which an emergency protective order has been entered by
a magistrate. The hearing shall be scheduled not later than ten
days following the entry of the order by the magistrate. The
notice of the final hearing shall be served on the respondent and
delivered to the petitioner, as provided in subsection (b) of this
section, and must set forth the hearing date, time and place and
include a statement of the right of the parties to appear and
participate in the final hearing. The notice must also provide
that the petitioner's failure to appear will result in a dismissal of the petition and that the respondent's failure to appear may
result in the entry of a protective order against him or her for a
period of ninety or one hundred eighty days, as determined by the
court. The notice must also include the name, mailing address,
physical location and telephone number of the family court having
jurisdiction over the proceedings. To facilitate the preparation
of the notice of final hearing required by the provisions of this
subsection, the family court must provide the magistrate court with
a day and time in which final hearings may be scheduled before the
family court within the time required by law.
(e) Upon final hearing the petitioner must prove, by a
preponderance of the evidence, the allegation of domestic violence
or that he or she reported or witnessed domestic violence against
another and has, as a result, been abused, threatened, harassed or
has been the subject of other actions to attempt to intimidate him
or her, or such petition shall be dismissed by the family court.
If the respondent has not been served with notice of the emergency
protective order, the hearing may be continued to permit service to
be effected. The failure to obtain service upon the respondent
does not constitute a basis to dismiss the petition. 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.
(f) 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 motion has been granted. A person found by the court to be
disruptive may be precluded from being present.
(g) Upon hearing, the family court may dismiss the petition or
enter a protective order for a period of ninety days or, in the
discretion of the court, for a period of one hundred eighty days.
The hearing may be continued on motion of the respondent, at the
convenience of the court. Otherwise, the hearing may be continued
by the court no more than seven days. If a hearing is continued,
the family court may modify the emergency protective order as it
deems necessary.
(h) Notwithstanding any other provision of this code to the
contrary, a juvenile perpetrator of domestic violence may be
detained when no responsible adult can be found into whose custody
the juvenile could be released until a responsible adult can be
found into whose custody that juvenile may be delivered or until a
detention hearing may be held under the provisions of section
eight-a, article five, chapter forty-nine of this code.
NOTE: The purpose of this bill is to provide for the
temporary detention of juvenile perpetrators of domestic violence.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.