COMMITTEE SUBSTITUTE
FOR
H.
B.
4570
(By Delegates Brown and Douglas)
(Originating in the House Committee on the Judiciary)
[March 3, 1994]
A BILL to amend and reenact section thirteen, article two, chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact sections two, three, five and nine, article two-a of said chapter; to amend and reenact section fifteen, article two-c of said chapter; to amend and reenact section three, article one, chapter forty-nine of said code; to amend and reenact section eleven, article six of said chapter; to amend and reenact section five, article six-a of said chapter; to amend and reenact sections twelve and thirteen, article eight, chapter sixty-one of said code; to amend and reenact section eleven-a, article eight-b of said chapter; to amend and reenact section nine, article eight-d of said chapter; to amend and reenact section seventeen-a, article one-c, chapter sixty-two of said code; to amend and reenact section one, article eleven-a of said chapter; and to amend and reenact section nine, article twelve of said chapter, all relating to domestic relations generally; making certain technical corrections to correct clerical errors and incorrect references; providing for relief during the pendency of an action for divorce, annulment or separate maintenance; redefining certain terms relating to family violence; service of all protective orders by publication; continuance of hearings on temporary orders; prior reports of domestic violence to law enforcement agencies; purging and sealing of files containing protective orders; correcting references to domestic violence records deemed confidential; defining serious physical abuse of a child and clarifying references thereto; deleting requirement that documentation of certain instances of abuse and neglect be provided within three days; referencing child abuse and neglect provisions for parents guilty of incest; and further making technical corrections to section references.
Be it enacted by the Legislature of West Virginia:
That section thirteen, article two, chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that sections two, three, five, and nine, article two-a of said chapter be amended and reenacted; that section fifteen, article two-c of said chapter be amended and reenacted; that section three, article one, chapter forty-nine of said code be amended and reenacted; that section eleven, article six of said chapter be amended and reenacted; that section five, article six-a of said chapter be amended and reenacted; that sections twelve and thirteen, article eight, chapter sixty-one of said code be amended and reenacted; that section eleven-a, article eight-b of said chapter be amended and reenacted; that section nine, article eight-d of said chapter be amended and reenacted; that section seventeen-a, article one-c, chapter sixty-two of said code be amended and reenacted; that section one, article eleven-a of said chapter be amended and reenacted; and that section nine, article twelve of said chapter be amended and reenacted, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§
48
-
2
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13. Temporary relief during pendency of action for
divorce, annulment or separate maintenance.
(a) At the time of the filing of the complaint or at any time after the commencement of an action for divorce, annulment or separate maintenance under the provisions of this article and upon motion for temporary relief, notice of hearing and hearing, the court may order all or any portion of the following temporary relief, which order shall govern the marital rights and obligations of the parties during the pendency of the action:
(1) The court may require either party to pay temporary alimony in the form of periodic installments, or a lump sum, or both, for the maintenance of the other party.
(2) The court may provide for the custody of minor children of the parties subject to such rights of visitation, both in and out of the residence of the custodial parent or other person or persons having custody, as may be appropriate under the circumstances.
(3) In every action where visitation is awarded, the court shall specify a schedule for visitation by the noncustodial parent:
Provided,
That with respect to any existing order of temporary relief which provides for visitation but which does not provide a schedule for visitation by the noncustodial parent, upon motion of any party, notice of hearing and hearing, the court shall issue an order which provides a specific schedule for visitation by the noncustodial parent.
(4) (3) When the action involves a minor child or children, The court shall may require either party to pay temporary child support in the form of periodic installments for the maintenance of the minor children of the parties. in accordance with section eight, article two, chapter forty-eight-a of this code.
(5) When the action involves a minor child or children, the court shall provide for medical support for any minor children in accordance with section fifteen-a of this article.
(6) (4) (A) The court may compel either party to pay attorney's fees and court costs reasonably necessary to enable the other party to prosecute or defend the action in the trial court. The question of whether or not a party is entitled to temporary alimony is not decisive of that party's right to a reasonable allowance of attorney's fees and court costs. An order for temporary relief awarding attorney fees and court costs may be modified at any time during the pendency of the action, as the exigencies of the case or equity and justice may require, including, but not limited to, a modification which would require full or partial repayment of fees and costs by a party to the action to whom or on whose behalf payment of such fees and costs was previously ordered. If an appeal be taken or an intention to appeal be stated, the court may further order either party to pay attorney fees and costs on appeal.
(B) When it appears to the court that a party has incurred attorney fees and costs unnecessarily because the opposing party has asserted unfounded claims or defenses for vexatious, wanton or oppressive purposes, thereby delaying or diverting attention from valid claims or defenses asserted in good faith, the court may order the offending party, or his or her attorney, or both, to pay reasonable attorney fees and costs to the other party.
(7) As an incident to requiring the payment of temporary alimony, the court may order either party to continue in effect existing policies of insurance covering the costs of health care and hospitalization of the other party. If there is no such existing policy or policies, the court may order that such health care insurance coverage be paid for by a party if the court determines that such health care coverage is available to that party at a reasonable cost. Payments made to an insurer pursuant to this subdivision, either directly or by a deduction from wages, may be deemed to be temporary alimony.
(5) As an incident to requiring the payment of temporary alimony or temporary child support, the court may order either party to continue in effect existing policies of insurance covering the costs of health care and hospitalization of the other party and the minor children of the parties. If there is no such existing policy or policies, the court may order that such health care insurance coverage be paid for by a party, if the court determines that such health care coverage is available to the party at a reasonable cost. Payments made to an insurer pursuant to this subdivision, either directly or by a deduction from wages, shall be deemed to be temporary alimony or temporary child support, in such proportion as the court shall direct:
Provided,
That if the court does not set forth in the order that a portion of such payments is to be deemed temporary child support, then all such payments made pursuant to this subdivision shall be deemed to be temporary alimony.
(8) (6) The court may grant the exclusive use and occupancy of the marital home to one of the parties during the pendency of the action, together with all or a portion of the household goods, furniture and furnishings, reasonably necessary for such use and occupancy. The court may require payments to third parties in the form of home loan installments, land contract payments, rent, payments for utility services, property taxes, and insurance coverage, or other expenses or charges reasonably necessary for the use and occupancy of the marital domicile. When such payments are ordered, the court shall specify whether such payments or portions of payments are temporary alimony or temporary child support, a partial distribution of marital property or an allocation of marital debt, in such proportion as the court shall direct:
Provided,
That if the court does not set forth in the order that a portion of such payments is to be deemed temporary child support, then all such payments made pursuant to this subdivision shall be deemed to be temporary alimony:
Provided, however,
That the court may order such payments to be made without denominating them either as temporary alimony or temporary child support, reserving such decision until such time as the court determines the interests of the parties in marital property and equitably divides the same:
Provided further,
That at the time the court determines the interests of the parties in marital property and equitably divides the same, the court may consider the extent to which payments made to third parties under the provisions of this subdivision have affected the rights of the parties in marital property and may treat such payments as a partial distribution of marital property notwithstanding the fact that such payments have been denominated temporary alimony or temporary child support or not so denominated under the provisions of this subdivision. If the payments are not designated in an order and the parties have waived any right to receive alimony, the court may designate the payments upon motion by any party. Nothing contained in this subdivision shall abrogate an existing contract between either of the parties and a third party, or affect the rights and liabilities of either party or a third party under the terms of such contract.
(9) (7) As an incident to requiring the payments of temporary alimony, the court may grant the exclusive use and possession of one or more motor vehicles to either of the parties during the pendency of the action. The court may require payments to third parties in the form of automobile loan installments or insurance coverage, and any such payments made pursuant to this subdivision shall be deemed to be temporary alimony:
Provided,
That the court may order such payments to be made without denominating them as temporary alimony, reserving such decision until such time as the court determines the interests of the parties in marital property and equitably divides the same:
Provided, however,
That at the time the court determines the interests of the parties in marital property and equitably divides the same, the court may consider the extent to which payments made to third parties under the provisions of this subdivision have affected the rights of the parties in marital property and may treat such payments as a partial distribution of marital property notwithstanding the fact that such payments have been denominated temporary alimony or not so denominated under the provisions of this subdivision. Nothing contained in this subdivision shall abrogate an existing contract between either of the parties and a third party or affect the rights and liabilities of either party or a third party under the terms of such contract.
(10) (8) When Where the pleadings include a specific request for specific property or raise issues concerning the equitable division of marital property, the court may enter such order as is reasonably necessary to preserve the estate of either or both of the parties, including the imposition of a constructive trust, so that such property be forthcoming to meet any order which may be made in the action, and may compel either party to give security to abide such order, or may require the property in question to be delivered into the temporary custody of a third party. The court may further order either or both of the parties to pay the costs and expenses of maintaining and preserving the property of the parties during the pendency of the action:
Provided,
That at the time the court determines the interests of the parties in marital property and equitably divides the same, the court may consider the extent to which payments made for the maintenance and preservation of property under the provisions of this subdivision have affected the rights of the parties in marital property and may treat such payments as a partial distribution of marital property. When appropriate, the court may release all or any part of such protected property for sale and substitute all or a portion of the proceeds of the sale for such property.
(11) (9) Unless a contrary disposition is found to be appropriate and is ordered pursuant to other provisions of this section, then upon the motion
of a either party, the court may compel a the other party to deliver to the moving party any of his or her separate estate which may be in the possession or control of the respondent party, and may make any such further order that as is necessary to prevent either party from interfering with the separate estate of the other party.
(12) (10) The court may enjoin the offending either party from molesting or interfering with the other, or otherwise imposing any restraint on the personal liberty of the other, or interfering with the custodial or visitation rights of the other. This order may permanently enjoin the offending party from entering the school, business or place of employment of the other for the purpose of molesting or harassing the other; or from contacting the other, in person or by telephone, for the purpose of harassment or threats; or from harassing or verbally abusing the other in a public place. Any order entered by the court to protect a party from abuse may grant the relief provided in pursuant to article two-a of this chapter or continue such relief as may be in force and effect at the time the action was filed.
(b) In ordering temporary relief under the provisions of this section, the court shall consider the financial needs of the parties, the present employment income or other recurring earnings of each party from any source, their income-earning abilities and the respective legal obligations of each party to support himself or herself and to support any other persons. Except in extraordinary cases supported by specific findings set forth in the order granting relief, payments of temporary alimony and temporary child support are to be made from a party's employment income and other recurring earnings, and not from the corpus of a party's separate estate, and an award of such relief shall not be disproportionate to a party's ability to pay as disclosed by the evidence before the court: That child support shall be established in accordance with support guidelines promulgated pursuant to section eight, article two, chapter forty-eight-a of this code.
(c) At any time after a party is abandoned or deserted or after the parties to a marriage have lived separate and apart in separate places of abode without any cohabitation, the party abandoned or either party living separate and apart may apply for relief pursuant to this section by instituting an action for divorce as provided in section ten of this article, alleging that the plaintiff reasonably believes that the period of abandonment or of living separate and apart will continue for the period prescribed by the applicable provisions of section four of this article. If the period of abandonment or living separate and apart continues for the period prescribed by the applicable provisions of section four of this article, the divorce action may proceed to a hearing as provided in sections twenty-four and twenty-five of this article without a new complaint being filed:
Provided,
That the party desiring to proceed to a hearing shall give the opposing party at least twenty days' notice of the time, place and purpose of the hearing, unless the opposing party files has filed with the court a waiver of notice of further proceedings, signed by the opposing party. If such notice is required to be served, it shall be served in the same manner as a complaint, regardless of whether the opposing party has appeared or answered.
(d) To facilitate the resolution of issues arising at a hearing for temporary relief, the court may, or upon the motion of either party shall, order each of the parties to file with the court, and serve on the other party, a sworn statement of each party's assets, liabilities and employment income and other earnings from any source. The statement shall be in such form and contain such detailed information as the court may prescribe by general order. In addition, the court may, or upon the motion of either party shall, order the parties to comply with the disclosure requirements set forth in section thirty-three of this article, and if necessary, continue prior to the hearing for temporary relief, from time to time, to afford the parties an opportunity to obtain and provide such information. The form for this disclosure shall substantially comply with the form promulgated by the supreme court of appeals, pursuant to said section. If either party fails to timely file a complete disclosure as required by this section or as ordered by the court, the court may accept the statement of the other party as accurate.
(e) An ex parte order granting all or part of the relief provided for in this section may be granted without written or oral notice to the adverse party if:
(1) It appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or such party's attorney can be heard in opposition. The Such potential injury, loss or damage may be anticipated when the following conditions exist:
Provided,
That the following list of conditions is not exclusive:
(A) There is a real and present threat of physical injury to the applicant at the hands or direction of the adverse party;
(B) The adverse party is preparing to quit the state with a minor child or children of the parties, thus depriving the court of jurisdiction in the matter of child custody;
(C) The adverse party is preparing to remove property from the state or is preparing to transfer, convey, alienate, encumber or otherwise deal with property which could otherwise be subject to the jurisdiction of the court and subject to judicial order under the provisions of this section or section fifteen of this article; and
(2) The moving party or his or her attorney certifies in writing any the effort efforts, if any, which have that has been made to give the notice and the reasons supporting his or her claim that notice should not be required.
(f) Every ex parte order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the circuit clerk's office and entered of record; and shall set forth the finding of the court that unless the order is granted without notice there is probable cause to believe that existing conditions will result in immediate and irreparable injury, loss or damage to the moving movant party before the adverse party or his or her attorney can be heard in opposition. The order granting ex parte relief shall fix a time for a hearing for temporary relief to be held within a reasonable time, not to exceed twenty days, unless before the time so fixed for hearing, such hearing is continued for good cause shown or with the consent of the party against whom the ex parte order is directed. The reasons for the continuance shall be entered of record. Within the time limits described herein, when an ex parte order is made, a motion for temporary relief shall be set down for hearing at the earliest possible time and shall take precedence of all matters except older matters of the same character. If the party who obtained the ex parte order fails to proceed with a motion for temporary relief, the court shall set aside the ex parte order. At any time after ex parte relief is granted, and on two days' notice to the party who obtained such relief or on such shorter notice as the court may direct, the adverse party may appear and move the court to set aside or modify the ex parte order on the grounds that the effects of such order are onerous or otherwise improper. In such event, the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.
(g) No order granting temporary relief may be the subject of an appeal or a petition for review.
(h) (1) Unless the best interests of the child require otherwise, every temporary order which provides for the custody of a minor child of the parties shall also provide for the following:
(A) The custodial parent shall be required to authorize school authorities in the school in which the child is enrolled to release to the noncustodial parent copies of any and all information concerning the child which would otherwise be properly released to the custodial parent;
(B) The custodial parent shall be required, promptly after receipt, to transmit to the noncustodial parent a copy of the child's grades or report card and copies of any other reports reflecting the status or progress of the child;
(C) The custodial parent shall be required, when practicable, to arrange appointments for parent-teacher conferences at a time when the noncustodial parent can be present;
(D) The custodial parent shall be required to authorize medical providers to release to the noncustodial parent copies of any and all information concerning medical care provided to the child which would otherwise be properly released to the custodial parent;
(E) The custodial parent shall be required to promptly inform the noncustodial parent of any illness of the child which requires medical attention; or, if the child is in the actual physical custody of the noncustodial parent during a period of visitation, the noncustodial parent shall be required to promptly inform the custodial parent of any illness of the child which requires medical attention;
(F) The custodial parent shall be required to consult with the noncustodial parent prior to any elective surgery being performed on the child; and in the event emergency medical procedures are undertaken for the child which requires the parental consent of either parent, if time permits, the other parent shall be consulted, or if time does not permit such consultation, the other parent shall be promptly informed of such emergency medical procedures: Provided, That the same duty to inform the custodial parent applies to the noncustodial parent in the event that the emergency medical procedures are required while the child is in the physical custody of the noncustodial parent during a period of visitation: Provided, however, That nothing contained herein shall be deemed to alter or amend the law of this state as it otherwise pertains to physicians or health care facilities obtaining parental consent prior to providing medical care or performing medical procedures.
(2) In the event a custodial parent shall fail or refuse to authorize the release of school or medical records as provided for by subdivision (1) of this subsection, then upon the ex parte application of the noncustodial parent, the family law master shall prepare an order for entry by the circuit court which appoints the family law master as a special commissioner authorized to execute a consent for the release of such records, and direct it to the appropriate school authorities or medical providers.
ARTICLE 2A. PREVENTION OF DOMESTIC VIOLENCE.
§
48
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2A
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2. Definitions.
As used in this article, unless the context clearly requires otherwise:
(a) "Family violence" or "abuse" means the occurrence of one or more of the following acts between family or household members: who reside together or who formerly resided together:
(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) Causing or attempting to cause another to engage involuntarily in any sexual act by force, threat of force, or duress; and 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, other persons related by blood or marriage, 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.
§
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. If the parties are married, 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 not 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 effective throughout the state in every county. Any protective order issued by 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.
(f)
Service by publication.
-- The final 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 final 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
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2A
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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. (a). 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 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. or is 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
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2A
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9. Law-enforcement response to family violence.
(a) Notwithstanding any other provision of this code to the contrary, all law-enforcement officers are hereby authorized to serve all pleadings and orders filed or entered pursuant to this article on Sundays and legal holidays. No law-enforcement officer shall refuse to serve any pleadings or orders entered pursuant to this article.
(b) Any law-enforcement officer responding to an alleged incident of family violence shall inform the parties thereto of the availability of the possible remedies provided by this article and the possible applicability of the criminal laws of this state. Any law-enforcement officer investigating an alleged incident of family violence shall advise the person subject to abuse of the availability of the family protection shelter to which such person may be admitted.
(c) Any law-enforcement officer responding to an alleged incident of abuse shall, in addition to providing the information required in subsection (a) of this section, provide transportation for or facilitate transportation of the victim or victims, upon the request of such victim or victims, to a shelter or the appropriate court where there is reasonable cause to believe that such victim or victims have suffered or are likely to suffer physical injury.
(d) Each law-enforcement agency shall maintain records on all incidents of family or household abuse reported to it, and shall monthly make and deliver to the department of public safety a report on a form prescribed by the department, listing all such incidents of family or household abuse. Such reports shall include:
(1) The age and sex of the abused and abusing parties;
(2) The relationship between the parties;
(3) The type and extent of abuse;
(4) The number and type of weapons involved;
(5) Whether the law-enforcement agency responded to the complaint and if so, the time involved, the action taken and the time lapse between the agency's action and the abused's request for assistance;
(6) Whether the petitioner reported having filed complaints with regard to any prior reports have been made, received or filed regarding family or household abuse on any prior occasion and if so, the number of such prior complaints reports; and
(7) The effective dates and terms of any protective order issued prior to or following the incident to protect the abused party:
Provided,
That no information which will permit the identification of the parties involved in any incident of abuse shall be included in such report.
(e) The department of public safety shall tabulate and analyze any statistical data derived from the reports made by law-enforcement agencies pursuant to this section, and publish a statistical compilation in the department's annual uniform crime report, as provided for in section twenty-four, article two, chapter fifteen of this code. The statistical compilation shall include, but is not limited to, the following:
(1) The number of family violence complaints received;
(2) The number of complaints investigated;
(3) The number of complaints received from alleged victims of each sex;
(4) The average time lapse in responding to such complaints;
(5) The number of complaints received from alleged victims who have filed such complaints on prior occasions;
(6) The number of aggravated assaults and homicides resulting from such repeat incidents;
(7) The type of police action taken in disposition of the cases; and
(8) The number of alleged violations of protective orders.
(f) As used in this section, the terms "abuse," "family violence" and "family or household members" shall have the meanings given them in section two of this article; and the term "law-enforcement agency" shall include the West Virginia department of health and human resources in those instances of child abuse reported to the department which are not otherwise reported to any other law-enforcement agency.
(g) The governor's committee on crime, delinquency and correction shall develop and promulgate rules for state, county and municipal law-enforcement officers and law-enforcement agencies with regard regarding the duties of law-enforcement officers and law-enforcement agencies with respect to domestic violence. The notice of the public hearing on the rules shall be published before the first day of July, one thousand nine hundred ninety-one. Prior to the publication of the proposed rules, the governor's committee on crime, delinquency and correction shall convene a meeting or meetings of an advisory committee to assist in the development of the rules. The advisory committee shall be composed of persons invited by the committee to represent state, county and local law-enforcement agencies and officers, to represent magistrates and court officials, to represent victims of domestic violence, to represent shelters receiving funding pursuant to article two-c of this chapter, and to represent other persons or organizations who, in the discretion of the committee, have an interest in the rules. The rules and the revisions thereof as provided in this section shall be promulgated as legislative rules in accordance with chapter twenty-nine-a of this code. Following the promulgation of said rules, the committee shall meet at least annually to review the rules and to propose revisions as a result of changes in law or policy.
(h) Nothing in this section shall be construed to authorize the inclusion of information contained in a report of an incident of abuse in any local, state, interstate, national or international systems of criminal identification pursuant to section twenty-four, article two, chapter fifteen of this code:
Provided,
That nothing in this section shall prohibit the department of public safety from processing information through its criminal identification bureau with respect to any actual charge or conviction of a crime.
(i) All law-enforcement officers shall receive training relating to response to calls involving family violence by the first day of October, one thousand nine hundred ninety-three.
(j) Two years after the entry of a final protective order, the circuit court, may, upon motion, order that the protective order and references to the order be purged from the file maintained by any law-enforcement agency and may further order that the file maintained by the court be sealed and not opened except upon order of the court when such is in the interest of justice.
ARTICLE 2C. DOMESTIC VIOLENCE ACT.
§
48
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2C
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15. Confidentiality.
(a) No program or shelter receiving funds pursuant to this article shall disclose or be compelled to disclose, release or be compelled to release any written records created or maintained in providing services pursuant to this article except:
(1) Upon written consent of the person seeking or who has sought services from the program or the shelter;
(2) In any proceeding brought under sections four and five, article six, chapter nine of this code or section one, article six, chapter forty-nine of this code; et seq.;
(3) As mandated by article six-a, chapter forty-nine and article six, chapter nine of this code;
(3) (4) Pursuant to an order of any court based upon a finding that said information is sufficiently relevant to a proceeding before the court to outweigh the importance of maintaining the confidentiality established by this section;
(4) (5) To protect against a clear and substantial danger of imminent injury by a client to him or herself or another;
(5) (6) For treatment or internal review purposes to the staff of any mental health facility program or shelter if the client is also being cared for by other health professionals in the program or shelter. treatment of the client.
(b) No consent or authorization for the transmission or disclosure of confidential information shall be effective unless it is in writing and signed by the client. Every person signing an authorization shall be given a copy.
CHAPTER 49. CHILD WELFARE.
ARTICLE 1. PURPOSES; DEFINITIONS.
§
49
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1
-
3. Definitions relating to abuse and neglect.
(a) "Abused child" means a child whose health or welfare is harmed or threatened by:
(1) A parent, guardian or custodian who knowingly or intentionally inflicts, attempts to inflict, or knowingly allows another person to inflict, physical injury, or mental or emotional injury, upon the child or another child in the home; or
(2) Sexual abuse or sexual exploitation; or
(3) The sale or attempted sale of a child by a parent, guardian, or custodian in violation of section sixteen, article four, chapter forty-eight of this code.
In addition to its broader meaning, physical injury may include an injury to the child as a result of excessive corporal punishment.
(b) "Abusing parent" means a parent, guardian, or other custodian, regardless of his or her age, whose conduct, as alleged in the petition charging child abuse or neglect, has been adjudged by the court to constitute child abuse or neglect.
(c) "Child abuse and neglect" or "child abuse or neglect" means physical injury, mental or emotional injury, sexual abuse, sexual exploitation, sale or attempted sale, or negligent treatment or maltreatment of a child by a parent, guardian, or custodian who is responsible for the child's welfare, under circumstances which harm or threaten the health and welfare of the child.
(d) "Child abuse and neglect services" means social services which are directed toward:
(1) Protecting and promoting the welfare of children who are abused or neglected;
(2) Identifying, preventing and remedying conditions which cause child abuse and neglect;
(3) Preventing the unnecessary removal of children from their families by identifying family problems and assisting families in resolving problems which could lead to a removal of children and a breakup of the family;
(4) In cases where children have been removed from their families, providing services to the children and the families so as to restore such children to their families;
(5) Placing children in suitable adoptive homes when restoring the children to their families is not possible or appropriate; and
(6) Assuring the adequate care of children away from their families when the children have been placed in the custody of the department or third parties.
(e) "Imminent danger to the physical well-being of the child" means an emergency situation in which the welfare or the life of the child is threatened. Such emergency situation exists when there is reasonable cause to believe that any child in the home is or has been sexually abused or sexually exploited, or reasonable cause to believe that the following conditions threaten the health or life of any child in the home:
(1) Nonaccidental trauma inflicted by a parent, guardian, custodian, sibling or a babysitter or other caretaker; or
(2) A combination of physical and other signs indicating a pattern of abuse which may be medically diagnosed as battered child syndrome; or
(3) Nutritional deprivation; or
(4) Abandonment by the parent, guardian or custodian; or
(5) Inadequate treatment of serious illness or disease; or
(6) Substantial emotional injury inflicted by a parent, guardian or custodian; or
(7) Sale or attempted sale of the child by the parent, guardian or custodian.
(f) "Multidisciplinary team" means a group of professionals and paraprofessionals representing a variety of disciplines who interact and coordinate their efforts to identify, diagnose and treat specific cases of child abuse and neglect. Multidisciplinary teams may include, but are not limited to, medical, child care, and law-enforcement personnel, social workers, psychologists and psychiatrists. Their goal is to pool their respective skills in order to formulate accurate diagnoses and to provide comprehensive coordinated treatment with continuity and follow-up for both parents and children. "Community team" means a multidisciplinary group which addresses the general problem of child abuse and neglect in a given community, and may consist of several multidisciplinary teams with different functions.
(g) (1) "Neglected child" means a child:
(A) Whose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child's parent, guardian or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care or education, when such refusal, failure or inability is not due primarily to a lack of financial means on the part of the parent, guardian or custodian; or
(B) Who is presently without necessary food, clothing, shelter, medical care, education or supervision because of the disappearance or absence of the child's parent or custodian;
(2) "Neglected child" does not mean a child whose education is conducted within the provisions of section one, article eight, chapter eighteen of this code.
(h) "Parenting skills" means a parent's competencies in providing physical care, protection, supervision and psychological support appropriate to a child's age and state of development.
(i) "Sexual abuse" means:
(A) As to a child who is less than sixteen years of age, any of the following acts which a parent, guardian or custodian shall engage in, attempt to engage in, or knowingly procure another person to engage in, with such child, notwithstanding the fact that the child may have willingly participated in such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct:
(i) Sexual intercourse; or
(ii) Sexual intrusion; or
(iii) Sexual contact; or
(B) As to a child who is sixteen years of age or older, any of the following acts which a parent, guardian or custodian shall engage in, attempt to engage in, or knowingly procure another person to engage in, with such child, notwithstanding the fact that the child may have consented to such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct:
(i) Sexual intercourse; or
(ii) Sexual intrusion; or
(iii) Sexual contact; or
(C) Any conduct whereby a parent, guardian or custodian displays his or her sex organs to a child, or procures another person to display his or her sex organs to a child, for the purpose of gratifying the sexual desire of the parent, guardian or custodian, of the person making such display, or of the child, or for the purpose of affronting or alarming the child.
(j) "Sexual contact" means sexual contact as that term is defined in section one, article eight-b, chapter sixty-one of this code.
(k) "Sexual exploitation" means an act whereby:
(1) A parent, custodian or guardian, whether for financial gain or not, persuades, induces, entices or coerces a child to engage in sexually explicit conduct as that term is defined in section one, article eight-c, chapter sixty-one of this code;
(2) A parent, guardian or custodian persuades, induces, entices or coerces a child to display his or her sex organs for the sexual gratification of the parent, guardian, custodian or a third person, or to display his or her sex organs under circumstances in which the parent, guardian or custodian knows such display is likely to be observed by others who would be affronted or alarmed.
(l) "Sexual intercourse" means sexual intercourse as that term is defined in section one, article eight-b, chapter sixty-one of this code.
(m) "Sexual intrusion" means sexual intrusion as that term is defined in section one, article eight-b, chapter sixty-one of this code.
(n) "Parental rights" means any and all rights and duties regarding a parent to a minor child, including, but not limited to, custodial rights and visitational rights and rights to participate in the decisions affecting a minor child.
(o) "Placement" means any temporary or permanent placement of a child who is in the custody of the state in any foster home, group home, or other facility or residence.
(p) "Serious physical abuse" means bodily injury which creates a substantial risk of death, which causes serious or prolonged disfigurement, prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ.
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§
49
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6
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11. Conviction for offenses against children.
In any case where a person is convicted of an offense, described in sections twelve and twenty-six, article eight, chapter sixty-one of this code; and articles eight-b and eight-d of said chapter; section one, article eight-b, chapter sixty-one, et seq., and section one, article eight-d, chapter sixty-one of this code against any child and further has custodial, visitation or other parental rights to the child, at the time of sentencing, the court shall make a finding that the person is an abusing parent within the meaning of this article, section one, article six, chapter forty-nine, et seq. and the court shall take such further steps as are required by this article.
ARTICLE 6A. REPORTS OF CHILDREN SUSPECTED TO BE ABUSED OR
NEGLECTED.
§
49
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6A
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5. Reporting procedures.
Reports of child abuse and neglect pursuant to this article shall be made immediately by telephone to the local state department child protective service agency and shall be followed by a written report within forty-eight hours if so requested by the receiving agency. The state department shall establish and maintain a twenty-four hour, seven-day-a-week telephone number to receive such calls reporting suspected or known child abuse or neglect.
A copy of any report of serious physical injury, or abuse, sexual abuse or assault, shall be forwarded by the department to the appropriate law-enforcement agency, the prosecuting attorney or the coroner or medical examiner's office. All reports under this article shall be confidential, and unless there are pending proceedings with regard thereto, shall be destroyed six years following their preparation. Reports of known or suspected institutional child abuse or neglect shall be made and received as all other reports made pursuant to this article. Such documentation shall be provided within three business days of receipt by the child protective services.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§
61
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8
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12. Incest; penalty.
(a) For the purposes of this section:
(1) "Aunt" means the sister of a person's mother or father;
(2) "Brother" means the son of a person's mother or father;
(3) "Daughter" means a person's natural daughter, adoptive daughter or the daughter of a person's husband or wife;
(4) "Father" means a person's natural father, adoptive father or the husband of a person's mother;
(5) "Granddaughter" means the daughter of a person's son or daughter;
(6) "Grandfather" means the father of a person's father or mother;
(7) "Grandmother" means the mother of a person's father or mother;
(8) "Grandson" means the son of a person's son or daughter;
(9) "Mother" means a person's natural mother, adoptive mother or the wife of a person's father;
(10) "Niece" means the daughter of a person's brother or sister;
(11) "Nephew" means the son of a person's brother or sister;
(12) "Sexual intercourse" means any act between persons involving penetration, however slight, of the female sex organ by the male sex organ or involving contact between the sex organs of one person and the mouth or anus of another person;
(13) "Sexual intrusion" means any act between persons involving penetration, however slight, of the female sex organ or of the anus of any person by an object for the purpose of degrading or humiliating the person so penetrated or for gratifying the sexual desire of either party;
(14) "Sister" means the daughter of a person's father or mother;
(15) "Son" means a person's natural son, adoptive son or the son of a person's husband or wife; and
(16) "Uncle" means the brother of a person's father or mother.
(b) A person is guilty of incest when such person engages in sexual intercourse or sexual intrusion with his or her father, mother, brother, sister, daughter, son, grandfather, grandmother, grandson, granddaughter, nephew, niece, uncle or aunt.
(c) Any person who violates the provisions of this section shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than five years nor more than fifteen years, or fined not less than five hundred dollars nor more than five thousand dollars and imprisoned in the penitentiary not less than five years nor more than fifteen years.
(d) In addition to any penalty provided under this section and any restitution which may be ordered by the court under article eleven-a of this chapter, the court may order any person convicted under the provisions of this section where the victim is a minor to pay all or any portion of the cost of medical, psychological or psychiatric treatment of the victim, the need for which results from the act or acts for which the person is convicted, whether or not the victim is considered to have sustained bodily injury.
(e) In any case where a person is convicted of an offense described herein against a child and further has or may have custodial, visitation or other parental rights to the child, the court shall find that the person is an abusing parent within the meaning of article six, chapter forty-nine of this code, and shall take such further action in accord with the provisions of said article.
§
61
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8
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13. Incest; limits on interviews of children eleven years
old or less; evidence.
(a) In any prosecution under the provisions of section twelve of this article, the court may provide by rule for reasonable limits on the number of interviews to which a victim who is eleven years old or less must submit for law-enforcement or discovery purposes. To the extent possible the rule shall protect the mental and emotional health of the child from the psychological damage of repeated interrogation and at the same time preserve the rights of the public and the defendant.
(b) At any stage of the proceedings, in any prosecution under this article, the court may permit a child who is eleven years old or less to use anatomically correct dolls, mannequins or drawings to assist such child in testifying.
(c) In any prosecution under this article in which the victim's lack of consent is based solely on the incapacity to consent because such victim was below a critical age, evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct and reputation evidence of the victim's sexual conduct shall not be admissible. In any other prosecution under this article, evidence of specific instances of the victim's prior sexual conduct with the defendant shall be admissible on the issue of consent:
Provided,
That such evidence heard first out of the presence of the jury is found by the judge to be relevant.
(d) In any prosecution under this article evidence of specific instances of the victim's sexual conduct with persons other than the defendant, opinion evidence of the victim's sexual conduct and reputation evidence of the victim's sexual conduct shall not be admissible:
Provided,
That such evidence shall be admissible solely for the purpose of impeaching credibility, if the victim first makes his or her previous sexual conduct an issue in the trial by introducing evidence with respect thereto.
(e) In any prosecution under this article, neither age nor mental capacity of the victim shall preclude the victim from testifying.
(f) In any case where a person is convicted of an offense described herein against a child and further has or may have custodial, visitation or other parental rights to the child, the court shall find that the person is an abusing parent within the meaning of section one, article six, chapter forty-nine of this code, and shall take such further action in accord with the provisions of section one, article six, chapter forty-nine of this code.
ARTICLE 8B. SEXUAL OFFENSES.
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61
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8B
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11a. Convictions for offenses against children.
In any case where a person is convicted of an offense described in this article against a child and further has or may have custodial, visitation or other parental rights to the child, the court shall find that the person is an abusing parent within the meaning of section one, article six, chapter forty-nine of this code, and shall take such further action in accord with the provisions of section one, said article. six, chapter forty-nine of this code
ARTICLE 8D. CHILD ABUSE.
§
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8D
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9. Convictions for offenses against children.
In any case where a person is convicted of an offense described in this article against a child and further has or may have custodial, visitation or other parental rights to the child, the court shall find that such person is an abusing parent within the meaning of section one, article six, chapter forty-nine of this code and shall take such further action in accord with the provisions of section one, said article. six, chapter forty-nine of this code
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 1C. BAIL.
§
62
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1C
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17a. Bail in situations of alleged child abuse.
(a) When the offense charged is an assault or other offense against a child who is offense defined in article eight-d, chapter sixty-one chapter forty-nine of this code, it shall be a condition of bond that the defendant shall not live in the same residence as and shall have no contact with the victim of the alleged offense, and the court may make such other conditions of bond with respect to contact with the victim as it deems necessary under the circumstances to protect the child:
Provided,
That the requirement of no contact with the victim of the alleged offense and all other conditions of bond may be reviewed by summary petition from the magistrate court to the circuit court or from the circuit court to the supreme court of appeals or any justice thereof.
(b) In cases where the charge is a sexual offense, as defined in chapter sixty-one of this code, against any person, the court, upon a showing of cause, may make such conditions of bond on the defendant or on any witness bond issued under section fifteen of this article as it deems necessary with respect to contact with the victim.
ARTICLE 11A. RELEASE FOR WORK AND OTHER PURPOSES.
§
62
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11A
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1. Release for work and other purposes by courts of
record with criminal jurisdiction.
(1) When a defendant is sentenced or committed for a term of one year or less by a court of record having criminal jurisdiction, such court may in its order grant to such defendant the privilege of leaving the jail during necessary and reasonable hours for any of the following purposes:
(a) To work at his employment;
(b) To seek employment;
(c) To conduct his own business or to engage in other self-employment, including, in the case of a woman, housekeeping and attending to the needs of her family;
(d) To attend an educational institution;
(e) To obtain medical treatment;
(f) To devote time to any other purpose approved of or ordered by the court, including participation in the litter control program of the county unless the court specifically finds that this alternative service would be inappropriate.
(2) Whenever an inmate who has been granted the privilege of leaving the jail under this section is not engaged in the activity for which such leave is granted, he shall be confined in jail.
(3) An inmate sentenced to ordinary confinement may petition the court at any time after sentence for the privilege of leaving jail under this section and may renew his petition in the discretion of the court. The court may withdraw the privilege at any time by order entered with or without notice.
(4) If the inmate has been granted permission to leave the jail to seek or take employment, the court's probation officers, or if none, the state's division of corrections shall assist him in obtaining suitable employment and in making certain that employment already obtained is suitable. Employment shall not be deemed suitable if the wages or working conditions or other circumstances present a danger of exploitation or of interference in a labor dispute in the establishment in which the inmate would be employed.
(5) If an inmate is employed for wages or salary, the clerk of the court shall collect the same, or shall require the inmate to turn over his wages or salary in full when received, and shall deposit the same in a trust account and shall keep a ledger showing the status of the account of each inmate. Earnings levied upon pursuant to writ of attachment or execution or in other lawful manner shall be collected from the employer and shall not be collected hereunder, but when the clerk has requested transmittal of earnings prior to levy, such request shall have priority. When an employer transmits such earnings to the clerk pursuant to this subsection he shall have no liability to the inmate for such earnings. From such earnings the clerk shall pay the inmate's board and personal expenses both inside and outside the jail and shall deduct installments on fines, if any, and, to the extent directed by the court, shall pay the support of the inmate's dependents:
Provided,
That at least twenty-five percent of the earnings collected by the clerk on behalf of an inmate shall be paid for the support of such inmate's dependents, if any. If sufficient funds are available after making the foregoing payments, the clerk may, with the consent of the inmate, pay, in whole or in part, any unpaid debts of the inmate. Any balance shall be retained, and shall be paid to the inmate at the time of his discharge.
(6) An inmate who is serving his sentence pursuant to this section shall be eligible for a reduction of his term for good behavior and faithful performance of duties in the same manner as if he had served his term in ordinary confinement.
(7) The court shall not make an order granting the privilege of leaving the institution under this section unless it is satisfied that there are adequate facilities for the administration of such privilege in the jail or other institution in which the defendant will be confined.
(8) In every case wherein the defendant has been convicted of an offense, defined in section thirteen twelve, article eight, chapter sixty-one, or in articles eight-b and or eight-d, of said chapter sixty-one of this code, against a child, the defendant shall not live in the same residence as any minor child, nor exercise visitation with any minor child and shall have no contact with the victim of the offense:
Provided,
That the defendant may petition the court of the circuit wherein he was so convicted for a modification of this term and condition of this probation and the burden shall rest upon the defendant to demonstrate that a modification is in the best interest of the child.
ARTICLE 12. PROBATION AND PAROLE.
§
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12
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9. Conditions of release on probation.
(a) Release on probation shall be upon the following conditions:
(1) That the probationer shall not, during the term of his probation, violate any criminal law of this or any other state or of the United States.
(2) That he shall not, during the term of his probation, leave the state without the consent of the court which placed him on probation.
(3) That he shall comply with the rules and regulations prescribed by the court or by the board of probation and parole, as the case may be, for his supervision by the probation officer.
(4) That in every case wherein the probationer has been convicted of an offense defined in section thirteen twelve, article eight, chapter sixty-one of this code and
or articles eight-b and
or eight-d of said chapter, against a child, the probationer shall not live in the same residence as any minor child, nor exercise visitation with any minor child, and shall have no contact with the victim of the offense:
Provided,
That the probationer may petition the court of the circuit wherein he was so convicted for a modification of this term and condition of his probation and the burden shall rest upon the probationer to demonstrate that a modification is in the best interest of the child.
(5) That the probationer be required to pay a fee, based upon his or her ability to pay, not to exceed twenty dollars per month to defray costs of supervision. All moneys collected as fees from probationers shall be deposited with the circuit clerk who shall, on a monthly basis, remit said moneys collected to the state treasurer for deposit in the state general revenue fund.
(b) In addition to the terms of probation set forth in subsection (a) of this section, the court may impose, subject to modification at any time, any other conditions which it may deem advisable, including, but not limited to, any of the following:
(1) That he shall make restitution or reparation, in whole or in part, immediately or within the period of probation, to any party injured by the crime for which he has been convicted.
(2) That he shall pay any fine assessed and the costs of the proceeding in such installments as the court may direct.
(3) That he shall make contribution from his earnings, in such sums as the court may direct, for the support of his dependents.
(4) That he shall, in the discretion of the court, be required to serve a period of confinement in the county jail of the county in which he was convicted for a period not to exceed one third of the minimum sentence established by law or one third of the least possible period of confinement in an indeterminate sentence, but in no case shall such period of confinement exceed six consecutive months. The court shall have authority to sentence the defendant within such six-month period to intermittent periods of confinement including, but not limited to, weekends or holidays and may grant unto the defendant intermittent periods of release in order that he may work at his employment or for such other reasons or purposes as the court may deem appropriate:
Provided,
That the provisions of article eleven-a of this chapter shall not apply to such intermittent periods of confinement and release except to the extent that the court may direct. If a period of confinement is required as a condition of probation, the court shall make special findings that other conditions of probation are inadequate and that a period of confinement is necessary.
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