ENGROSSED
COMMITTEE SUBSTITUTE
FOR
H. B. 2745
(By Delegates Douglas and Rowe)
[Originating in the House Committee on the Judiciary]
[February 23, 1996]
A BILL to amend article two-a, chapter forty-eight of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
three-b; and to amend and reenact sections three-a, ten-b,
ten-c and ten-d of said article, all relating to prevention
of domestic violence; divorce actions; providing for
temporary relief by magistrates in cases where a temporary
order has been entered in an action for divorce, annulment
or separate maintenance; clarifying that it is a crime to
abuse a party or children or be physically present at a
location in knowing and willful violation of the terms of a
protective order whether it is issued by a magistrate, a
family law master or a circuit judge; violations of
protective order; criminal complaints; arrest for violations
of protective orders, repeat offenses, penalties.
Be it enacted by the Legislature of West Virginia:
That article two-a, chapter forty-eight of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
three-b; and that sections three-a, ten-b, ten-c and ten-d of
said article be amended and reenacted, all to read as follows:
ARTICLE 2A. PREVENTION OF DOMESTIC VIOLENCE.
§48-2A-3a. Divorce actions.
(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 section
thirteen, article two of this chapter.
(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
or permanent order has been entered in the
action for divorce, annulment and separate maintenance, pursuant
to section thirteen, article two of this chapter.
(c)
Except as provided in section three-b 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 section thirteen, article two 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 subsection
(b), section six of this article, any order issued pursuant to
this section where a subsequent action is filed seeking a
divorce, annulment or separate maintenance, shall remain in full
force and effect by operation of this statute until a temporary
or final order is issued pursuant to section thirteen, article
two of this chapter or a final order granting or dismissing the
action for divorce, annulment or separate maintenance.
§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/or
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 and to the issuing magistrate court. The magistrate court clerk shall forward a copy
of the master's order to law-enforcement agencies.
If no temporary order pursuant to section thirteen, article
two, chapter forty-eight of this code 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.
§48-2A-10b. Violations of protective orders; criminal complaints.
(a) When a respondent abuses the petitioner and/or minor
children or is physically present at any location in knowing and
willful violation of the terms of a temporary or final protective
order issued
by a magistrate, a circuit court judge or a family
law master under the provisions of this article
or subdivision
(12), subsection (a), section thirteen, article two, chapter
forty-eight of this code, any person authorized to file a
petition pursuant to the provisions of section four of this
article or the legal guardian or guardian ad litem may file a
petition for civil contempt as set forth in section ten-a of this
article.
(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.
§48-2A-10c. Arrest for violations of protective orders.
(a) When a law-enforcement officer observes any respondent
abuse the petitioner and/or minor children or the respondent's
physical presence at any location in knowing and willful
violation of the terms of a temporary or final protective order
issued
by a magistrate, a circuit court judge or a family law
master under the provisions of this article
or subdivision (12),
subsection (a), section thirteen, article two, chapter forty-
eight of this code, 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 ten-d of this
article, 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 (b), section
fourteen of this article, 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 ten-d of this article; or
(3) The law-enforcement officer has observed credible
evidence that the accused committed the offense.
(b)(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.
(c)(d) Where there is an arrest, the officer shall take the
arrested person before a 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.
§48-2A-10d. Misdemeanor offenses of for violation of protective
order., repeat offenses, penalties.
(a) A respondent who abuses the petitioner and/or minor
children or who is physically present at any location in knowing
and willful violation of the terms of a temporary or final
protective order issued
by a magistrate, a circuit court judge
or a family law master under the provisions of this article
or
subdivision (12), subsection (a), section thirteen, article two,
chapter forty-eight of this code,
shall be is guilty of a
misdemeanor, and, upon conviction thereof, shall be confined in
the county or regional 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 two hundred fifty dollars or more than two
thousand dollars.
(b) When a respondent previously convicted of the offense
described in subsection (a) of this section abuses the petitioner
and/or minor children or is physically present at any location in knowing and willful violation of the terms of a temporary or
final protective order issued under the provisions of this
article, the respondent is guilty of a misdemeanor, and, upon
conviction thereof, shall be imprisoned in the county or regional
jail for not less than three months nor more than one year, or
fined not less than five hundred dollars nor more than three
thousand dollars, or both.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
Section 3b is new; therefore, strike-throughs and
underscoring have been omitted.