ENRGROSSED
COMMITTEE SUBSTITUTE
FOR
H. B. 2817
(By Delegates Fleischauer, Amores, Laird,
Caputo, Capito, Osborne and Mahan)
(Originating in the Committee on the Judiciary)
[February 6, 1998]
A BILL to amend and reenact sections one, two, three, four, five,
six, ten, ten-a, twelve and fourteen, article two-a, chapter
forty-eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to further amend said article
by adding thereto a new section, designated section seven-a;
to amend and reenact sections two, three and ten, article two- c of said chapter; to further amend said article by adding
thereto eleven new sections, designated sections four-a, four- b, ten-a, ten-b, thirteen-a, thirteen-b, sixteen, seventeen,
eighteen, nineteen and twenty; and to amend article six-a,
chapter forty-nine of said code by adding thereto a new
section, designated section nine-a, all relating generally to
domestic and family violence and its treatment and prevention;
legislative findings; definitions of terms; venue of
proceedings; contents of protective orders; presumptions
concerning custody and residence; factors in determining custody and visitation; conditions of visitation in cases
involving domestic and family violence; specialized visitation
centers for victims of domestic and family violence; updating
certain terms; providing for basic training and continuing
education in matters involving domestic and family violence
for judicial officers and court personnel, law-enforcement
officers, state, county and municipal employees who work with
domestic and family violence cases, attorneys and school
personnel who are required to report child abuse and neglect;
arrests in domestic violence matters; family protections
services board; establishment of local advisory councils on
domestic and family violence; provision for development of a
state public health plan for reducing domestic and family
violence; referral of victims to shelters; notice of rights
and remedies and services available; information required to
be provided by hospitals in certain cases; promulgation of
legislative rules; establishment of standards, procedures and
curricula; regulation of programs of intervention for
perpetrators of domestic and family violence; duties of
providers of intervention programs; required curricula for
public school system; and additional duties of child
protective services regarding domestic and family violence.
Be it enacted by the Legislature of West Virginia:
That sections one, two, three, four, five, six, ten, ten-a,
twelve and fourteen, article two-a, chapter forty-eight of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; that said article be further amended by
adding thereto a new section, designated section seven-a; that
sections two, three and ten, article two-c of said chapter be
amended and reenacted; that said article be further amended by
adding thereto eleven new sections, designated sections four-a,
four-b, ten-a, ten-b, thirteen-a, thirteen-b, sixteen, seventeen,
eighteen, nineteen and twenty; and that article six-a, chapter
forty-nine of said code be amended by adding thereto a new section,
designated section nine-a, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 2A. PREVENTION AND TREATMENT OF DOMESTIC AND FAMILY
VIOLENCE.
§48-2A-1. Findings and purposes.
(a) The Legislature of this state finds that:
(1)
No one should be a victim of domestic or family violence.
Battered persons and other victims All people have a right to be
safe in their homes
and in their families;
(2) Children are often physically assaulted or witness
violence against one of their parents
or other family or household
members, violence which too often ultimately results in death. These children and may suffer deep and lasting emotional harm from
victimization and from exposure to
domestic or family violence;
(3)
Family Domestic or family violence is a major health and
law-enforcement problem in this state
with enormous costs to the
state in both dollars and human lives. and one that It affects
people of all racial and ethnic backgrounds and all socioeconomic
classes; and
(4)
Family Domestic or family violence can be deterred,
prevented or reduced by legal intervention
that treats this problem
with the seriousness that it deserves.
(b) This article shall be liberally construed and applied to
promote the following purposes:
(1) To assure victims of
domestic or family violence the
maximum protection from abuse that the law can provide;
(2) To create a speedy remedy to discourage violence against
family
or household members with whom the abuser has continuing
contact;
(3) To expand the ability of law-enforcement officers to
assist victims, to enforce the
domestic or family violence law
more
effectively, and to prevent further abuse;
(4) To facilitate equal enforcement of criminal law by
deterring and punishing violence against family
and household
members
as diligently as violence committed against strangers; and
(5) To recognize that
battering is a crime domestic or family
violence constitutes serious criminal behavior with potentially
tragic results and that
it will no longer be excused or tolerated;
and
(6) To recognize that the existence of a former or on-going
familial or other relationship should not serve to excuse, explain
or mitigate acts of violence which are otherwise punishable as
crimes under the laws of this state.
§48-2A-2. Definitions.
As used in this article, unless the context clearly requires
otherwise:
(a) "Family violence"
"domestic violence", "domestic or family
violence", or "abuse" means the occurrence of one or more of the
following acts between family or household members,
as that term is
defined in subsection (b) of this section:
(1) Attempting to cause or intentionally, knowingly or
recklessly causing physical harm to another with or without
dangerous or deadly weapons;
(2) Placing another in reasonable apprehension of physical
harm;
(3) Creating fear of physical harm by harassment,
psychological abuse or threatening acts;
(4) Committing either sexual assault or sexual abuse as those terms are defined in articles eight-b and eight-d, chapter sixty- one of this code; and
(5) Holding, confining, detaining or abducting another person
against that person's will.
(b) "Family or household member" means current or former
spouses, persons living as spouses, persons who formerly resided as
spouses, parents, children and stepchildren, current or former
sexual or intimate partners, persons who are dating or who have
dated persons who are presently or in the past have resided or
cohabited together or a person with whom the victim has a child in
common.
(c) "Program for victims of domestic or family violence" means
a licensed program for victims of domestic or family violence and
their children, which program provides advocacy, shelter, crisis
intervention, social services, counseling, education or training.
(d) "Program of intervention for perpetrators" means a
specialized and licensed program that:
(1) Accepts perpetrators of domestic or family violence into
educational intervention groups pursuant to a court order; or
(2) Offers educational intervention groups to perpetrators of
domestic or family violence.
(e) "Safety plan" means a written or oral outline of actions
that may be taken by a victim of family violence to secure protection and support after making an assessment about the degree
of danger presented by a situation.
§48-2A-3. Jurisdiction; venue; effect of petitioner's leaving
residence; priority of petitions filed under this
article; who may file; full faith and credit;
process.
(a)
Jurisdiction. -- Circuit courts and magistrate courts, as
constituted under chapter fifty of this code,
shall have concurrent
jurisdiction over proceedings under this article.
(b)
Venue. -- The action may be heard in the county in which
the abuse occurred,
or in the county in which the respondent is
living
or in the county in which the petitioner is living. If the
parties are married
to each other, the action may also be brought
in the county in which an action for divorce between the parties
may be brought as provided by section eight, article two of this
chapter.
(c)
Petitioner's rights. -- The petitioner's right to relief
under this article
shall is not
to be affected by his or her
leaving a residence or household to avoid further abuse.
(d)
Priority of petitions. -- Any petition filed under the
provisions of this article shall be given priority over any other
civil action before the court, except actions in which trial is in
progress, and shall be docketed immediately upon filing. Any appeal to the circuit court of a magistrate's judgment on a
petition for
the relief under this article shall be heard within
ten working days of the filing of the appeal.
(e)
Full faith and credit. -- Any temporary or final
protective order issued pursuant to this article
shall be is
effective throughout the state in every county. Any protective
order issued by
any other state, territory or possession of the
United States, Puerto Rico, the District of Columbia or Indian
tribe the court of another state shall be accorded full faith and
credit and enforced as if it were an order of this state
. if its
terms and conditions are substantially similar to those which may
be imposed by a court of this state. A court of this state shall
enforce all provisions of a foreign order for protection whether or
not such relief is available in this state. A protective order
from another jurisdiction is presumed to be valid if the order
appears authentic on its face. A protective order from another
jurisdiction may be enforced even if the order is not entered into
the state law enforcement information system described by section
twelve of this article.
(f)
Service by publication. -- A protective order may be
served on the respondent by means of a Class I legal advertisement
published notice, with the publication area being the county in
which the respondent resides, published in accordance with the provisions of section two, article three, chapter fifty-nine of
this code if: (i) The petitioner files an affidavit with the court
stating that an attempt at personal service pursuant to rule four
of the West Virginia rules of civil procedure has been unsuccessful
or evidence is adduced at the hearing for the protective order that
the respondent has left the state of West Virginia; and (ii) a copy
of the order is mailed by certified or registered mail to the
respondent at the respondent's last known residence and returned
undelivered.
§48-2A-4. Commencement of proceeding; forms; counterclaim;
accompanying persons; counties in which action may be
brought.
(a) No person
shall is to be refused the right to file a
petition under the provisions of this article. No person
shall is
to be denied relief under the provisions of this article if she or
he presents facts sufficient under the provisions of this article
for the relief sought.
A petition for a protective order may be filed by:
(1) A person seeking relief under this article for herself or
himself
or for himself or herself and any person who reported or
witnessed family or domestic violence;
or
(2) An adult family or household member for the protection of
the petitioner or for any family or household member who is a minor child or physically or mentally incapacitated to the extent that he
or she cannot file on
their his or her own behalf
, or
(3) A person who reported or was a witness to family or
domestic violence and who has been abused, threatened, harassed or
who has been the subject of other actions intended to intimidate
the person.
(b) The West Virginia supreme court of appeals shall prescribe
forms which are necessary and convenient for proceedings pursuant
to this article, and the court shall distribute such forms to the
clerk of the circuit court and magistrate court of each county
within the state.
(c) The respondent named in any petition alleging abuse may
file a counterclaim or raise any affirmative defenses.
(d) No person accompanying a person who is seeking to file a
petition under the provisions of this article
shall is to be
precluded from being present if his or her presence is desired by
the person seeking a petition unless the person's behavior is
disruptive to the proceeding.
(e) In the event a person who resides, temporarily or
permanently, in a county not described in subsection (b), section
three of this article desires to file a petition described in
subsection (a) of this section, such person may obtain assistance
in filing such a petition at a magistrate court within the county of such place of temporary or permanent residence. In such event,
a magistrate or the clerk of such magistrate court shall:
(1) Provide to such person such forms and such assistance as
may be necessary for the filing of a petition described in
subsection (a) of this section;
(2) To the extent possible, contact and obtain from any
magistrate court described in subsection (b), section three of this
article chosen by the person seeking to file the petition a hearing
date for such petition; and
(3) Forward such petition to the magistrate court described in
subdivision (2) of this subsection for filing together with any
such other papers and documents necessary to file the same.
(f) (e) No fees
shall are to be charged for
the filing of
petitions or other papers, service of petitions or orders, copies
of orders, or other costs for services provided by, or associated
with, any proceedings under this article until the matter is
brought before the court for final resolution.
§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. 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 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 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
or that the
petitioner reported or witnessed the domestic violence and has been
abused, threatened, harassed or has been the subject of other
actions to attempt to intimidate the person
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 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,
or if it is proven that a person who reported or witnessed the
domestic violence has been abused, threatened, harassed or has been
the subject of other actions to attempt to intimidate the person
then the court shall issue a protective order which shall direct
directs the respondent to refrain from abusing, harassing,
stalking, or threatening the petitioner and/or or the minor
children or engaging in other conduct that would place the
petitioner or the minor children in reasonable fear of bodily
injury, or directs the respondent to refrain from abusing,
threatening, harassing or otherwise intimidating a person who
reported or witnessed family or domestic violence. The petitioner
is not required to adduce evidence and prove the allegations of the
petition if the respondent is present and elects not to contest the
allegations set forth in the petition. In such case, the court may
directly address the issues related to the requested relief.
(b) Where the petitioner was the subject of abuse, 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) Providing for either party to obtain personal effects and other items from a location and providing for the safety of the
parties while this occurs;
(2) (3) Awarding temporary custody of or establishing
temporary visitation rights with regard to minor children;
(3) (4) 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) (5) 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) (6) Ordering the respondent to pay to the petitioner a
sum for temporary support and maintenance of the petitioner, where
appropriate;
(6) (7) 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) (8) Directing Ordering the respondent to participate in
counseling an educational intervention program with a licensed
batterers' intervention prevention program; or
(8) (9) Ordering the respondent to refrain from contacting,
telephoning, communicating, harassing or verbally abusing the petitioner in any public place;
(10) Prohibiting the respondent from using or possessing a
firearm or other weapon;
(11) Informing the respondent that possession of a firearm
while subject to a protective order is a violation of federal law.
(12) Ordering the respondent to reimburse the petitioner or
other person for any expenses associated with the domestic or
family violence, including, but not limited to, medical expenses,
transportation and shelter; and
(13) Ordering the petitioner and respondent to refrain from
transferring, conveying, alienating, encumbering, or otherwise
dealing with property which could otherwise be subject to the
jurisdiction of the court or another court in an action for divorce
or support, partition or in any other action affecting their
interests in property.
(c) Where the petitioner or other person to be protected
reported or was a witness to the family or domestic violence, the
terms of a protective order may include:
(1) Ordering the respondent to refrain from contacting,
telephoning, communicating, harassing or verbally abusing the
petitioner.
(b) (d) Any final protective order shall be for a fixed
period of time not to exceed ninety days issued by a magistrate, family law master or circuit judge pursuant to this article or
subdivision thirteen, subsection (a), article two of this chapter,
is effective for six months 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 that
the respondent has violated or threatened to violate the order or
if there is a preponderance of other evidence to that the
petitioner or the minor child or children continue to need
protection from abuse. The order shall be is 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 and shall
so state.
(c) (e) No order under this article shall may in any manner
affect title to any real property.
(d) (f) 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 state
police within twenty-four hours of the entry of the order.
(e) (g) No Mutual protective orders shall be granted are
prohibited 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.
(h) Any protective order issued by a magistrate, family law
master or circuit judge pursuant to this article or subdivision
(12), subsection (a), section thirteen, article two of this
chapter, shall contain on its face the following statement, printed
in bold faced type or in capital letters:
"VIOLATION OF THIS ORDER MAY BE PUNISHED BY CONFINEMENT IN A
REGIONAL OR COUNTY JAIL FOR AS LONG AS ONE YEAR AND BY A FINE OF AS
MUCH AS TWO THOUSAND DOLLARS"
§48-2A-7a. Conditions of visitation in cases involving domestic or
family violence.
(a) A court may not award visitation of a child by a parent
who has committed domestic or family violence unless the court
finds that adequate provision for the safety of the child and the
parent who is a victim of domestic or family violence can be made.
(b) In a visitation order, a court may:
(1) Order an exchange of a child to occur in a protected
setting;
(2) Order that supervision be provided by another person or
agency;
(3) Order the perpetrator of domestic or family violence to
attend and complete, to the satisfaction of the court, a program of
intervention for perpetrators at a licensed batterers' program as
a condition of the visitation;
(4) In a case where the court makes a finding that consumption
of alcohol or use of controlled substances by the perpetrator of
domestic or family violence was a contributing cause of the
domestic or family violence, order the perpetrator to abstain from
consumption of alcohol or use of controlled substances during the
visitation and for the twelve hours that precede the visitation;
(5) Order the perpetrator of domestic or family violence to
pay the costs of supervised visitation, if any;
(6) Prohibit overnight visitation;
(7) Impose any other condition that the court considers
necessary to provide for the safety of the child, the victim of
domestic or family violence, or any other family or household
member.
(c) Regardless of whether visitation is allowed, the court may
order that the address of the child and the victim be kept
confidential.
(d) If a court allows a family or household member to
supervise visitation, the court shall establish conditions to be
followed during visitation.
§48-2A-10. Filing of orders with law-enforcement agency.
Upon entry of an order pursuant to section five or six of this
article, or an order entered pursuant to section thirteen, article
two of this chapter granting relief provided for by this article,
a copy of such the order shall, no later than the close of the next
business day, be transmitted by the court or the clerk of the court
to a local office of the city police, the county sheriff and the
West Virginia division of public safety state police, where it
shall be placed in a confidential file, with access provided only
to the law-enforcement agency and the respondent named on said the
order. A sworn affidavit may be executed by the a party who has
been awarded exclusive possession of the residence or household,
pursuant to an order entered under subsection (b), section six of
this article, and which shall be delivered to such law-enforcement
agency agencies simultaneously with any such order, giving his or
her consent for a law-enforcement officer to enter such the
residence or household, without a warrant, to enforce such the
protective order or temporary order. Orders shall be promptly
served upon the respondent. Failure to serve a protective order
shall does not stay the effect of a valid order if the respondent
has actual notice of the existence and contents of the order.
§48-2A-10a. Civil contempt; violation of protective orders; order
to show cause.
(a) Any person authorized to file a petition under the
provisions of section four of this article party to a protective
order or a legal guardian or guardian ad litem may file a petition
for civil contempt alleging a violation of an order issued pursuant
to the provisions of this article. Such petition shall be filed in
a court in the county in which the violation occurred or the county
in which the order was issued.
(b) When a petition for an order to show cause is filed, a
hearing on the petition shall be held within five days from the
filing of the petition. Any order to show cause which is issued
shall be served upon the respondent.
(c) Upon a finding of contempt, the court may order the
respondent to comply with specific provisions of the protective
order and post a bond as surety for faithful compliance with such
order.
§48-2A-12. Registration of order.
(a) The department of public safety West Virginia state police
shall maintain a registry in which it shall enter certified copies
of orders entered by courts from other counties every county in
this state pursuant to the provisions of this article, or from
other states pursuant to their laws: Provided, That the provisions
of this section shall not become are not effective until such time
as a central automated record system is developed.
(b) A petitioner who obtains a protective order under pursuant
to this article, or a protective order from another state pursuant
to its law, may register that order in any county within this state
where the petitioner believes enforcement may be necessary.
(c) A protective order may be registered by the petitioner in
a county other than the issuing county by obtaining a certified
copy of the order of the issuing court, certified by the clerk of
that court, and presenting that certified order to the local office
of the state police where the order is to be registered.
(d) Upon receipt of a certified order for registration, the
local office of the state police shall provide certified copies to
any law-enforcement agency within its jurisdiction, including the
city police and the county sheriff's office.
(e) Nothing in this section shall preclude precludes the
enforcement of an order in a county jurisdiction other than the
county jurisdiction in which the order was issued if the petitioner
has not registered the order in the county jurisdiction in which
the an alleged violation of the order occurred occurs.
§48-2A-14. Arrest in domestic violence matters; conditions.
(a) Notwithstanding any provision of this code to the
contrary, where if a family or household member person is alleged
to have committed a violation of the provisions of subsection (a)
or (b), section twenty-eight, article two, chapter sixty-one of this code against another a family or household member, in addition
to any other authority to arrest granted by this code, a
law-enforcement officer has authority to arrest the alleged
perpetrator for said offense when that person without first
obtaining a warrant if:
(1) The law-enforcement officer has observed credible
corroborative evidence that the an offense has occurred; and
either:
(2) The law-enforcement officer has received, from the victim
or a witness, a verbal an oral or written allegation of facts
constituting a violation of section twenty-eight, article two,
chapter sixty-one of this code; or
(3) The law-enforcement officer has observed credible evidence
that the accused committed the offense.
(b) For purposes of this section, credible corroborative
evidence means evidence that is worthy of belief and corresponds
with to the allegations of one or more elements of the offense and
may include, but is not limited to, the following: conditions
(1) Condition of the alleged victim. -- One or more
contusions, scratches, cuts, abrasions, or swellings; missing hair;
torn clothing or clothing in disarray consistent with a struggle;
observable difficulty in breathing or breathlessness consistent
with the effects of choking or a body blow; observable difficulty in movement consistent with the effects of a body blow or other
unlawful physical contact.
(2) Condition of the accused. -- Physical injury or other
conditions similar to those set out for the condition of the victim
which are consistent with the alleged offense or alleged acts of
self-defense by the victim.
(3) Condition of the scene. -- Damaged premises or
furnishings; disarray or misplaced objects consistent with the
effects of a struggle.
(4) Other conditions. -- Statements by the accused admitting
one or more elements of the offense; threats made by the accused in
the presence of an officer; audible evidence of a disturbance heard
by the dispatcher or other agent receiving the request for police
assistance; written statements by witnesses.
(c) Whenever any person is arrested pursuant to subsection (a)
of this section, the arrested person shall be taken before a
magistrate within the county in which the offense charged is
alleged to have been committed in a manner consistent with the
provisions of Rule 1 of the Administrative Rules for the Magistrate
Courts of West Virginia.
(d) Where If an arrest for a violation of subsection (c),
section twenty-eight, article two, chapter sixty-one of this code
is authorized pursuant to this section, such shall constitute that fact constitutes prima facie evidence that the person arrested
accused constitutes a threat or danger to the victim or other
family or household members for the purpose of setting conditions
of bail pursuant to section seventeen-c, article one-c, chapter
sixty-two of this code.
(e) Whenever any person is arrested pursuant to the provisions
of this article or subdivision (12), subsection (a), section
thirteen, article two of this chapter, the arresting officer:
(1) Shall seize all weapons that are alleged to have been
involved or threatened to be used in the commission of a crime; and
(2) May seize a weapon that is in plain view of the officer or
was discovered pursuant to a consensual search, as necessary for
the protection of the officer or other persons.
ARTICLE 2C. DOMESTIC VIOLENCE ACT.
§48-2C-2. Definitions.
As used in this article, unless the context clearly requires
otherwise:
(a) "Board" means the family protection services board created
pursuant to section three of this article;
(b) "Department" means the department of health and human
services resources or any successor agency however so named;
(c) "Shelter" or "Family Protection Shelter" means a family
licensed domestic violence shelter created for the purpose of receiving, on a temporary basis, persons who are victims of
domestic violence, abuse or rape as well as the children of such
victims;
(d) "Commissioner" shall mean means the commissioner of the
department of health and human services resources; and
(e) "Family protection program" or "program" means a licensed
domestic violence program offered by a locally controlled
organization primarily for the purpose of providing services to
victims of domestic or family violence or abuse and their children.
§48-2C-3. Family protection services board; members; purposes.
(a) There is hereby created a family protection services board
The board shall to consist of five persons. The governor, with the
advice and consent of the Senate, shall appoint three members of
the board. One such member shall be a director of a shelter. One
member shall be a member of a major trade association which
represents shelters across the state. The final gubernatorial
appointee shall be a member of the public. The other two members
shall be the commissioner of the department of health and human
resources, or his or her designee, and the chairman chair of the
governor's committee on crime, delinquency and correction or his or
her designee.
(b) The terms of the three members appointed by the governor
shall be staggered terms of three years. In the case of the initial appointments, the director of the shelter shall serve a
one-year term, and the representative of the trade association
shall serve a two-year term and the appointed member of the public
shall serve a three-year term.
(c) In the event that a member of the board shall cease ceases
to be qualified for appointment, then such his or her appointment
shall terminate.
§48-2C-4a. Establishment of local councils authorized.
(a) A local government, a county or a combination thereof may
establish an advisory council on domestic or family violence.
(b) The purpose of a local advisory council is to increase the
awareness and understanding of domestic or family violence and its
consequences and to reduce the incidence of domestic or family
violence within the locality by:
(1) Promoting effective strategies of intervention for
identification of the existence of domestic or family violence and
intervention by public and private agencies serving persons who are
victims of domestic or family violence;
(2) Providing for public education;
(3) Facilitating communication among public and private
agencies that provide programs to assist victims and programs of
intervention for perpetrators;
(4) Providing assistance to public and private agencies and providers of services to develop statewide procedures and community
and staff education, including procedures to review fatalities; and
(5) Developing a comprehensive plan of data collection
concerning domestic or family violence for courts, prosecutors,
law-enforcement officers, health care practitioners and other local
agencies in a manner that protects the identity of victims of
domestic or family violence.
§48-2C-4b. State public health plan for reducing domestic or
family violence.
(a) The bureau for public health of the department of health
and human resources, in consultation with the family protection
services board, shall:
(1) Assess the impact of domestic or family violence on public
health; and
(2) Write a state public health plan for reducing the
incidence of domestic or family violence in this state.
(b) The state public health plan shall:
(1) Include, but not be limited to, public education,
including the use of the various communication media to set forth
the public health perspective on domestic or family violence;
(2) Be developed in consultation with public and private
agencies that provide programs for victims of domestic or family
violence, advocates for victims, the West Virginia coalition against domestic violence and persons who have demonstrated
expertise and experience in providing health care to victims of
domestic or family violence and their children; and
(3) Be completed on or before the first day of January, two
thousand.
(c) The bureau for public health of the department of health
and human resources shall:
(1) Transmit a copy of the state public health plan to the
governor and the Legislature; and
(2) Review and update the state public health plan annually.
§48-2C-10. Referral to shelters by officers; notice of victims'
rights, remedies and available services; required
information.
(a) Where shelters are available, any the law-enforcement
officer or any other public authority investigating an alleged
incident of domestic or family violence shall advise the victim of
such abuse of the availability of the family protection shelter to
which such that person may be admitted.
§48-2C-10a. Referral to shelters by law-enforcement officers;
notice of victims' rights, remedies and available
services; required information.
(a) The bureau for public health shall make available to
health-care facilities and practitioners a written form notice of the rights of victims and the remedies and services available to
victims of domestic or family violence.
(b) A health care practitioner whose patient has
injuries or conditions consistent with domestic violence shall
provide to the patient, and every health care facility shall make
available to all patients, a written form notice of the rights of
victims and the remedies and services available to victims of
domestic or family violence.
§48-2C-10b. Hospitals required to provide certain information to
parents.
Hospitals shall provide information concerning domestic or
family violence to parents of newborn infants and to parents of
hospitalized minors. The information shall include, but not be
limited to, the effect of domestic or family violence on children
and available services for the prevention and treatment of domestic
or family violence.
§48-2C-13a. Standards, procedures and curricula.
(a) The bureau for public health shall publish model standards
for health care facilities, practitioners and personnel in the
facilities including specialized procedures and curricula
concerning domestic or family violence.
(b) The procedures and curricula shall be developed in
consultation with public and private agencies that provide programs for victims of domestic or family violence, advocates for victims,
the West Virginia coalition against domestic violence and personnel
who have demonstrated expertise and experience in providing health
care to victims of domestic or family violence and their children.
§48-2C-13b. Regulation of intervention programs for perpetrators;
required provisions; duties of providers.
(a) The family protection services board shall propose
legislative rules for programs of intervention for perpetrators of
domestic or family violence. These rules shall be proposed for
promulgation in accordance with the provisions of article three,
chapter twenty-nine-a of this code. These rules shall be developed
in consultation with public and private agencies that provide
programs for victims of domestic or family violence and programs of
intervention for perpetrators, with advocates for victims and with
persons who have demonstrated expertise and experience in providing
services to victims and perpetrators of domestic or family violence
and their children. If a program of intervention for perpetrators
receives funds from the state or is licensed by the state, the
board shall review the program's compliance with the rules
promulgated pursuant to this subsection.
(b) The rules for perpetrator intervention programs shall
include:
(1) Standards of compliance for licensing batterers' intervention prevention programs;
(2) Criteria concerning a perpetrator's appropriateness for
the program;
(3) Systems for communication and evaluation among the
referring court, the public and private agencies that provide
programs for victims of domestic or family violence and the
programs of intervention for perpetrators; and
(4) Required qualifications concerning education, training and
experience for providers of intervention programs.
(c) The standards shall be based upon and incorporate the
following principles:
(1) The focus of a program is to end the acts of violence and
ensure the safety of the victim and any children or other family or
household members;
(2) Domestic or family violence constitutes behavior for which
the perpetrator is accountable; and
(3) Although alcohol and substance abuse often exacerbate
domestic or family violence, it is a separate problem which
requires specialized intervention.
(d) Providers of perpetrator intervention programs:
(1) Shall require participants to sign the following releases:
(A) Allowing the provider to inform the victim and the
victim's advocates that the perpetrator is participating in a batterers' intervention prevention program with the provider and to
provide information to the victim and the victim's advocates, if
necessary, for the victim's safety;
(B) Allowing prior and current treating agencies to provide
information about the perpetrator to the provider; and
(C) Allowing the provider for good cause to provide
information about the perpetrator to relevant legal entities,
including, without limitation, courts, parole officers, probation
officers and child protective services.
(2) Shall report to the court, if the participation was court
ordered, and to the victim, if the victim requests and provides a
method of notification, any assault, failure to comply with program
requirements, failure to attend the program and threat of harm by
the perpetrator.
(3) Shall report to the victim all threats of harm without the
participant's authorization.
(4) May report to the victim failure to attend without the
participant's authorization.
§48-2C-16. Continuing education for certain state employees.
(a)(1) Subject to the provisions of subdivision (2) of this
subsection, the department of health and human resources shall
provide or require continuing education concerning domestic or
family violence for child protective services workers, adult protective services workers, social services workers, family
support workers and workers in the child support enforcement
division.
(2) Funding for the continuing education provided or required
under subdivision (1) of this section may not exceed the amounts
allocated for that purpose by the spending unit from existing
appropriations. No provision of this section may be construed to
require the Legislature to make any appropriation.
(b) The courses or requirements shall be prepared and
presented in consultation with public and private agencies that
provide programs for victims of domestic and family violence or
programs of intervention for perpetrators, advocates for victims,
the family violence coordinating council, the West Virginia
coalition against domestic violence and the family protection
services board.
§48-2C-17. Continuing education for law-enforcement officers
concerning domestic or family violence.
(a)(1) Subject to the provisions of subdivision (2) of this
subsection, as a part of the initial law enforcement officer
training required before a person may be employed as a law
enforcement officer pursuant to article twenty-nine, chapter thirty
of this code, all law enforcement officers shall receive training
concerning domestic or family violence.
(2) Funding for the training required under subdivision (1) of
this section may not exceed the amounts allocated by the spending
unit for that purpose from existing appropriations. No provision
of this section may be construed to require the Legislature to make
any appropriation.
(b) The course of instruction and the objectives in learning
and performance for the education of law-enforcement officers
required pursuant to this section shall be developed and presented
in consultation with public and private providers of programs for
victims of domestic or family violence and programs of intervention
for perpetrators, persons who have demonstrated expertise in
training and education concerning domestic or family violence and
the West Virginia coalition against domestic violence.
§48-2C-18. Judicial education on domestic or family violence.
(a)(1) Subject to the provisions of subdivision (2) of this
subsection, as a part of existing training for court personnel, the
supreme court of appeals shall develop and present courses of
continuing education concerning domestic or family violence for
magistrates assistants, and juvenile and adult probation officers.
(2) Funding for the continuing education required under
subdivision (1) of this section may not exceed the amounts
allocated for that purpose by the supreme court of appeals from
existing appropriations. No provision of this section may be construed to require the Legislature to make any appropriation.
(b) The course of instruction shall be prepared and may be
presented in consultation with public and private agencies that
provide programs for victims of domestic or family violence and
programs of intervention for perpetrators, advocates for victims,
persons who have demonstrated expertise in training and education
concerning domestic or family violence, the family violence
coordinating council, the West Virginia coalition against domestic
violence and the family protection services board.
§48-2C-19. Required curricula for public education system.
(a)(1) Subject to the provisions of subdivision (2) of this
subsection, the state board of education shall select or develop:
(A) Curricula that are appropriate for various ages for
pupils concerning the dynamics of violence, prevention of violence,
including domestic or family violence; and
(B) Curricula for school counselors, health-care personnel,
administrators and teachers concerning domestic or family violence.
(2) Funding for selecting or developing the curricula required
under subdivision (1) of this section may not exceed the amounts
allocated for that purpose by the spending unit from existing
appropriations. No provision of this section may be construed to
require the Legislature to make any appropriation.
(b) The curricula shall be selected or developed by the state board of education in consultation with public and private agencies
that provide programs for conflict resolution, violence prevention,
victims of domestic or family violence and programs of intervention
for perpetrators of domestic or family violence, advocates for
victims; the family violence coordinating council of West Virginia
coalition against domestic violence, persons who have demonstrated
expertise and experience in education and domestic or family
violence and the family protection services board.
§48-2C-20. Continuing education for school personnel who are
required to report child abuse and neglect.
(a)(1) Subject to the provisions of subdivision (2) of this
subsection, the state department of education shall provide or
require courses of continuing education concerning domestic or
family violence for employees who are required by law to report
child abuse or neglect.
(2) Funding for the continuing education provided or required
under subdivision (1) of this section may not exceed the amounts
allocated for that purpose by the spending unit from existing
appropriations. No provision of this section may be construed to
require the Legislature to make any appropriation.
(b) The courses or requirements shall be prepared and
presented in consultation with public and private agencies that
provide programs for victims of domestic or family violence, persons who have demonstrated expertise in education and domestic
or family violence, advocates for victims, the West Virginia
coalition against domestic violence and the family protection
services board.
CHAPTER 49. CHILD WELFARE.
ARTICLE 6A. REPORTS OF CHILDREN SUSPECTED TO BE ABUSED OR
NEGLECTED.
§49-6A-9a. Additional duties of child protective services.
(a) The department of health and human resources shall develop
written procedures for screening each referral for abuse or neglect
of a child to assess whether abuse of another family or household
member is also occurring. The assessment shall include, but not be
limited to:
(1) Inquiry concerning the criminal record of the parents, and
the alleged abusive or neglectful person and the alleged
perpetrator of domestic or family violence, if not a parent of the
child; and
(2) Inquiry concerning the existence of orders for protection
issued to either parent.
(b) If it is determined in an investigation of abuse or
neglect of a child:
(1) That the child or another family or household member is
in danger of domestic or family violence and that removal of one of the parties is necessary to prevent the abuse or neglect of the
child, the department shall seek the removal pursuant to this
article of the alleged perpetrator of domestic or family violence
whenever possible.
(2) That a parent of the child is a victim of domestic or
family violence, information and referrals for services must be
offered to the victimized parent and this action may not be made
contingent upon a finding that either parent is at fault or has
failed to protect the child.
NOTE: The principal purpose of this bill is to conform West
Virginia's law on prevention and resolution of domestic violence
more closely to the "Model Code on Domestic or Family Violence".
The Model Code was developed by the National Council of Juvenile
and Family Court Judges. Some additional changes were made to
conform existing code with the federal Violence Against Women Act
to make federal enforcement more clearly available.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§48-2A-7b; §§48-2C-4a, 4b, 10a, 10b, 13a, 13b, 16, 17, 18, 19
and 20; and §49-6A-9a are new; therefore, underscoring has been
omitted.