H. B. 2745
(By Delegates Douglas and Rowe)
[Introduced January 10, 1996; referred to the Committee
on the Judiciary.]

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, designed section three-b; and to amend a reenact sections three-a, ten-b, ten-c and ten-d of said article relating to domestic violence; providing for temporary relief by magistrates in cases where a temporary order has been entered in an action for divorce, annulment or separate maintenance between the same parties; 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; and criminal 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 designed 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, 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 commence an action and seek relief pursuant to sections four, five and six of this article except as limited by this section.
(c) A magistrate is authorized to grant relief pursuant to sections five and six of this article to a person commencing and action and seeking relief pursuant to subsection (b) of this section. The entitlement of any party proceeding pursuant to this section to rights or benefits of provisions of this article shall not be limited except as provided by this section.
(d) The only relief that a magistrate may award pursuant to sections five and six of this article is to direct 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 not modify an award of custody, visitation or other relief in the temporary order of the family law master or circuit judge except as provided in subsection (e) of this section. This relief may only be awarded if it does not directly conflict with a provision of the temporary order of the family law master or judge.
(e) An order of a magistrate made pursuant to this section may add terms and conditions to an award of custody, visitation or other relief if reasonably necessary to minimize contact between parties or otherwise carry out the order of the magistrate protecting a party from abuse.
(f) After the issuance of a temporary order pursuant to this section and section five of this article a full hearing shall be held as provided in section five of this article. In the alternative a party may request the family law master who issued the temporary order in the action for divorce, annulment or separate maintenance between the parties to hold the full hearing and if the full hearing can be set within eleven days of the issuance of the magistrates temporary protective order the family law master or judge is authorized to hold the full hearing and, if warranted by the evidence, issue a separate protective order or modify the existing temporary order to include a protective order authorized by this article.
(g) A protective order issued by a magistrate pursuant to this section and section six of this article shall be immediately transmitted to the family law master or circuit judge who issued the temporary order in an action for divorce, annulment or separate maintenance. Upon receipt of the order the master or judge shall examine its provisions. The master or judge may vacate the order on his or her own to the extent it conflicts with any existing order in the divorce, annulment or separate maintenance action between the parties, and may do so without notice or hearing if the circumstances require. The family law master or judge may set a temporary hearing to determine whether to vacate or modify the protective order or the temporary order issued by the master or judge. If requested by any party the family law master or judge shall set a hearing to hear a motion to vacate or modify the protective order or the temporary order issued by he master or judge. An order issued by a magistrate pursuant to this section may be modified or vacated at a hearing before a family law master or circuit court judge in an action for divorce, annulment or separate maintenance between the parties in the same manner as a temporary order of the family law master or circuit judge may be modified.
(h) In the alternative to any of the procedural provisions of this section the chief circuit court judge of any circuit may enter a general order for any county in his or her circuit so long as it provides for immediate hearings on petitions for temporary orders and prompt full hearings on the issuance of protective orders. Any general order entered pursuant to this subsection shall provide the procedures for the setting and holding of such hearings and shall be posted or otherwise made available to persons seeking relief in the magistrate courts pursuant to this article.
§48-2A-10b. Violations of protective orders; criminal complaints.
(a) When a respondent abuses the petitioner and/or minor children or 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 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) 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 laws-enforcement officer to promptly investigate the alleged violation.
(c) Where there is an arrest, the officer shall take the arrested person before a court or a magistrate and, upon a finding of probably 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 offense of violation of protective order.

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 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.


NOTE: The purposes of this bill are 1) to clarify that whether the domestic violence protective order was issued by a magistrate, a family law master or a circuit court judge, the respondent has committed a crime if the respondent violates the order by abusing a protected party or by being physically present at a location in knowing and willful violation of the terms of the order, and 2) to provide for temporary relief by magistrates in cases where a temporary order has been entered in an action for divorce, annulment or separate maintenance between the same parties.

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.