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Introduced Version Senate Bill 217 History

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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 217

(By Senators Kimble, Oliverio, Ball, Hunter,


McKenzie, Minear, Sprouse, R. White, Wooton, Kessler, Anderson, Bowman, Snyder, Deem, Fanning, Jackson, Sharpe, Ross, Schoonover and Walker)
____________

[Introduced January 26, 1998; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact sections one, two, three, four, six, ten, twelve, thirteen 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 three new sections, designated sections seven, seven-a and seven-b; to amend and reenact sections two, three, ten and thirteen, article two-c of said chapter; to further amend said article by adding thereto ten new sections, designated sections four-a, four-b, ten-a, 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 protection 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, six, ten, twelve, thirteen 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 three new sections, designated sections seven, seven-a and seven-b; that sections two, three, ten and thirteen, article two-c of said chapter be amended and reenacted; that said article be further amended by adding thereto ten new sections, designated sections four-a, four-b, ten-a, 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) Battered persons and other victims No one should be a victim of domestic or family violence. We all have a right to be safe in their our homes and in our 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. As a consequence, these children and may suffer deep and lasting emotional harm from victimization and from exposure to domestic or family violence;
(3) Domestic or family violence is a major health and law-enforcement problem in this state which costs the state terribly, in both dollars and human lives. and one that It affects people of all racial and ethnic backgrounds and all socioeconomic classes; and
(4) 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 domestic or family 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) "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, 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 includes:
(1) Adults or minors who are current or former spouses or who have lived as spouses;
(2) Adults or minors who live together or who have lived together;
(3) Adults or minors who are dating or who have dated;
(4) Adults or minors who are engaged in or have engaged in a sexual relationship;
(5) Adults or minors who are related by blood or adoption;
(6) Adults or minors who are related or who are formerly related by marriage;
(7) Adults or minors who have a child in common; and
(8) Minor children of any person who meets the criteria of any of the relationships described in subdivisions (1) through (7) of this subsection.
(c) "Program for victims of domestic or family violence" means a specialized program for victims of domestic or family violence and their children, which program provides advocacy, shelter, crisis intervention, social services, treatment, counseling, education or training.
(d) "Program of intervention for perpetrators" means a specialized program that:
(1) Accepts perpetrators of domestic or family violence into treatment or educational classes pursuant to a court order;
(2) Offers treatment to perpetrators of domestic or family violence; or
(3) Offers classes or instruction to perpetrators of domestic or family violence.
(e) "Safety plan" means a written or oral outline of actions to be taken by a victim of domestic or 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 resides or in the county in which the petitioner resides. 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 may 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 is 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. -- 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 may be refused the right to file a petition under the provisions of this article. No person shall may 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
(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.
(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 may 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 may 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-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, then the court shall issue a protective order which shall direct directs the respondent to refrain from abusing the petitioner and/or the minor children. 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) Awarding temporary custody of or establishing temporary visitation rights with regard to minor children;
(3) 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) 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) Ordering the respondent to pay to the petitioner a sum for temporary support and maintenance of the petitioner, where appropriate;
(6) 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) Directing the respondent to participate in counseling; or
(8) Ordering the respondent to refrain from contacting, telephoning, communicating, harassing or verbally abusing the petitioner in any public place;
(9) Prohibiting the respondent from using or possessing a firearm or other weapon specified by the court;
(10) 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, counseling, shelter and repair or replacement of damaged property; and
(11) Ordering the respondent to pay attorneys fees incurred by the petitioner in any action brought pursuant to this article.

(b) Any final protective order shall be for a fixed period of time not to exceed ninety days except as otherwise provided by subsection (d), section three-a of this article issued by a magistrate, family law master or circuit judge pursuant to this article or subdivision (12), subsection (a), article two of this chapter, is effective until further order of the court. 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 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) No order under this article shall may in any manner affect title to any real property.
(d) 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) No mutual protective orders shall may be granted 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.
(f) 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 FOR A FIRST OFFENSE 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-7. Presumptions concerning custody and residence; factors in determining custody and visitation; change of circumstances.

(a) In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption that it is detrimental to the child to be placed in sole custody, joint legal custody or joint physical custody with the perpetrator of family violence.
(b) In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption that it is in the best interest of the child to reside with the parent who is not a perpetrator of domestic or family violence in the location of that parent's choice, within or without this state.
(c) In every proceeding where there is at issue the modification of an order for custody or visitation of a child, the finding that domestic or family violence has occurred since the last custody determination constitutes a finding of a change of circumstances.
(d) In addition to other factors that a court considers in a proceeding in which the custody of a child or visitation by a parent is at issue and in which the court has made a finding of domestic violence:
(1) The court shall consider as primary the safety and well- being of the child and of the parent who is the victim of domestic or family violence;
(2) The court shall consider the perpetrator's history of causing physical harm, bodily injury, assault or causing reasonable fear of physical harm, bodily injury or assault to another person;
(3) If a parent is absent or relocates because of an act of domestic or family violence by the other parent, the absence or relocation is not a factor that weighs against the parent in determining custody or visitation.
§48-2A-7a. Conditions of visitation in cases involving domestic and family violence.

(a) A court may award visitation by a parent who has committed domestic or family violence only if 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 supervised 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 or other designated counseling as a condition of the visitation;
(4) Order the perpetrator of domestic or family violence to abstain from possession or consumption of alcohol or controlled substances during the visitation and for the twenty-four hours that precede the visitation;
(5) Order the perpetrator of domestic or family violence to pay a fee to defray the costs of supervised visitation;
(6) Prohibit overnight visitation;
(7) Require the perpetrator of domestic or family violence to post a bond for the return and safety of the child; and
(8) 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) The court may refer but may not order an adult who is a victim of domestic or family violence to attend counseling relating to the victim's status or behavior as a victim, individually or with the perpetrator of domestic or family violence as a condition of receiving custody of a child or as a condition of visitation.
(e) If a court allows a family or household member to supervise visitation, the court shall establish conditions to be followed during visitation.
§48-2A-7b. Specialized visitation center for victims of domestic or family violence.

(a) The department of health and human resources shall provide for visitation centers throughout the state for victims of domestic or family violence and their children to allow court ordered visitation in a manner that protects the safety of all family members. The department shall coordinate and cooperate with local governmental agencies in providing the visitation centers.
(b) Specialized visitation centers shall provide:
(1) A secure setting and specialized procedures for supervised visitation and the transfer of children for visitation; and
(2) Supervision by a person who is trained in security precautions and the avoidance of domestic and family violence.
§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 may not stay the effect of a valid order if the respondent has actual notice of the existence and contents of the 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 may preclude the enforcement of an order in a county other than the county in which the order was issued if the petitioner has not registered the order in the county in which the an alleged violation of the order occurred occurs.
§48-2A-13. Judicial education on family violence.

(a) The supreme court of appeals shall develop and present courses of continuing education concerning domestic and family violence for judicial officers and court personnel.
(b) The course of instruction for judicial officers and court personnel shall be prepared and presented in consultation with public and private agencies that provide programs for victims of domestic and family violence and programs of intervention for perpetrators, advocates for victims, the statewide coalition and the family protection services board.
(c) Every judicial officer and each court employee who comes into contact with either party in domestic or family violence cases shall have a minimum of three hours of education in domestic and family violence per year.
(d) The courses for judicial officers and court personnel shall include, but are not limited to, the following topics:
(1) The nature, extent and causes of domestic and family violence;
(2) Practices designed to promote safety of the victim and other family and household members, including safety plans;
(3) Resources available for victims and perpetrators of domestic and family violence;
(4) Sensitivity to gender bias and cultural, racial and sexual issues; and
(5) The lethal nature of domestic and family violence.
§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 may 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 for domestic and family violence, 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 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 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, and after 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 services to victims of domestic and family violence and their children, 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 appointed membership of the board shall include as many relevant disciplines as practicable. The governor shall appoint persons to the board to provide significant representation by victims of domestic and family violence and persons of diverse racial and ethnic backgrounds. The other two members shall be the commissioner of the department of health and human services, or his or her designee, and the chairman of the governor's committee on crime, delinquency and correction.
(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 one member shall serve a one-year term, and the representative of the trade association one shall serve a two-year term and one 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.
(d) The purpose of the board is to increase the awareness and understanding of domestic and family violence and its consequences and to reduce the incidence of domestic and family violence within the state by:
(1) Promoting effective strategies 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 between public and private agencies that provide programs or services for victims of domestic and family violence and programs of intervention for perpetrators;
(4) Providing assistance to public and private agencies to develop statewide procedures and community education, including procedures for reviewing fatalities in local communities;
(5) Developing a comprehensive and coordinated plan of data collection concerning domestic and family violence for courts, prosecutors, law-enforcement officers, health care providers and other state agencies, in consultation with each other and in a manner that protects the identity of victims of domestic and family violence; and
(6) Promoting the organization of local councils on domestic and family violence and providing assistance and support to established local councils.
§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 and family violence.
(b) The purpose of a local advisory council is to increase the awareness and understanding of domestic and family violence and its consequences and to reduce the incidence of domestic and 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 between 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 education, including procedures to review fatalities; and
(5) Developing a comprehensive plan of data collection concerning domestic and 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 and family violence.
§48-2C-4b. State public health plan for reducing domestic and family violence.

(a) The department of health and human resources, in consultation with the family protection services board, shall:
(1) Assess the impact of domestic and family violence on public health; and
(2) Write a state public health plan for reducing the incidence of domestic and 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 and family violence;
(2) Be developed in consultation with public and private agencies that provide programs for victims of domestic and 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 and family violence and their children; and
(3) Be completed on or before the first day of January, one thousand nine hundred ninety-eight.
(c) 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; 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.
(b) The board shall make available to health care facilities and practitioners a written notice of the rights of victims and the remedies and services available to victims of domestic or family violence in accordance with subsection (d) of this section.
(c) A health care practitioner who becomes aware that a patient is a victim of domestic or family violence shall provide to the patient and every health care facility shall make available to all patients the notice provided pursuant to subsection (b) of this section.
(d) The notice to victims of domestic or family violence shall be substantially as follows:
If you are the victim of domestic or family violence and you believe that law-enforcement protection is needed for your physical safety, you have the right to request that an officer assist in providing for your safety, including asking for an emergency order for protection. You may also request that the officer assist you in obtaining your essential personal effects and locating and taking you to a safe place, including, but not limited to, a designated meeting place for a shelter, a family member's or a friend's residence or a similar place of safety. If you are in need of medical treatment, you have the right to request that the officer assist you in obtaining medical treatment. You may request a copy of the incident report at no cost from the investigating law-enforcement agency.
You may ask the prosecuting attorney to file a criminal complaint. You may also have the right to file a petition in the magistrate or circuit court requesting an order for protection from domestic or family violence which could include any of the following:
(1) An order enjoining your abuser from threatening to commit or committing further acts of domestic or family violence;
(2) An order prohibiting your abuser from harassing, annoying, telephoning, initiating contact with or otherwise communicating with you, directly or indirectly;
(3) An order removing your abuser from your residence;
(4) An order directing your abuser to stay away from your residence, school, place of employment or any other specified place frequented by you or another family or household member;
(5) An order prohibiting your abuser from using or possessing any firearm or other weapon specified by the court;
(6) An order granting you possession and use of the family or household automobile and other personal effects;
(7) An order granting you custody of your child or children;
(8) An order denying your abuser visitation;
(9) An order specifying arrangements for visitation, including requiring supervised visitation; and
(10) An order requiring your abuser to pay certain costs and fees, such as rent or mortgage payments, child support payments, medical expenses, expenses for shelter, court costs and attorneys fees.
"The forms you need to obtain an order for protection are available from the magistrate or circuit court clerk. The resources available in this community for information relating to domestic and family violence, treatment of injuries and places of safety and shelters are: [insert list and hotline numbers]. You also have the right to seek reimbursement from losses suffered as a result of the abuse, including medical and moving expenses, loss of earnings or support and other expenses for injuries sustained and damage to your property. This can be done without an attorney in magistrate court if the amount claimed is not more than five thousand dollars.
(e) The written notice:
(1) May not include the street address of any shelter, unless the location is public knowledge; and
(2) Shall be provided in the native language of the victim, if practicable, when the victim's native language is not English.
§48-2C-10a. Hospitals required to provide certain information to parents.

Hospitals shall provide information concerning domestic and 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 and family violence on children and available services for the prevention and treatment of domestic and family violence.
§48-2C-13. Rules.

The board shall promulgate propose legislative rules and regulations in accordance with this section and article three, chapter twenty-nine-a of this code to effectuate the provisions of this article and to establish standards, procedures and curricula relating to domestic or family violence and to regulate programs of intervention for perpetrators of domestic and family violence. The rules and regulations shall may not take effect until the first set of rules and regulations they are approved by the Legislature.
§48-2C-13a. Standards, procedures and curricula.
(a) The board shall propose standards for health care facilities, practitioners and personnel in the facilities including specialized procedures and curricula concerning domestic and 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 and family violence and their children.
§48-2C-13b. Regulation of intervention programs for perpetrators; required provisions; duties of providers.
(a) The board shall propose rules for programs of intervention for perpetrators of domestic and family violence. 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 and 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 treatment;
(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 and 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 and family violence constitutes behavior for which the perpetrator is accountable; and
(3) Although alcohol and substance abuse often exacerbate domestic and family violence, it is a separate problem which requires specialized treatment.
(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 in treatment 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 to provide information about the perpetrator to relevant legal entities, including courts, parole officers, probation officers and child protective services;
(2) Shall report to the court and the victim any assault, failure to comply with program requirements, failure to attend the program and threat of harm by the perpetrator.
§48-2C-16. Continuing education for law-enforcement officers concerning domestic and family violence.

(a) The West Virginia state police shall provide a minimum of three hours of initial education to all prospective law-enforcement officers concerning domestic and family violence.
(b) The West Virginia state police shall provide three hours of continuing education concerning domestic and family violence to law-enforcement officers each year.
(c) The course of instruction and the objectives in learning and performance for the education of law-enforcement officers required pursuant to subsections (a) and (b) of this section shall be developed and presented in consultation with public and private providers of programs for victims of domestic and family violence and programs of intervention for perpetrators, persons who have demonstrated expertise in training and education concerning domestic and family violence and the West Virginia coalition against domestic violence.
(d) The course of instruction for law-enforcement officers shall include, but not be limited to:
(1) The investigation and management of cases involving domestic and family violence and writing of reports in such cases;
(2) The nature, extent and causes of domestic and family violence;
(3) Practices designed to promote the safety of law-enforcement officers investigating domestic and family violence;
(4) Practices designed to promote the safety of the victims of domestic and family violence and other family or household members, including safety plans;
(5) The legal rights and remedies available to victims of domestic and family violence, including rights and compensation of victims of crime and enforcement of civil and criminal remedies;
(6) The services available to victims of domestic and family violence and their children;
(7) Sensitivity to cultural, racial and sexual issues and the effect of cultural, racial and gender bias on the response of law-enforcement officers and the enforcement of laws relating to domestic and family violence; and
(8) The provisions of this code concerning domestic and family violence.
§48-2C-17. Continuing education for state, county and municipal employees who work with domestic and family violence cases and are required to report abuse and neglect of children.
(a) The department of health and human resources shall provide courses of continuing education concerning domestic and family violence for state, county and municipal employees:
(1) Who work with cases of domestic and family violence; and
(2) Who are required by law to report abuse or neglect of children.
(b) The courses for state, county and municipal employees shall be prepared and presented in consultation with public and private agencies that provide programs for victims of domestic and family violence and programs of intervention for perpetrators, advocates for victims, the West Virginia coalition against domestic violence and the family protection services board.
(c) The courses shall include, but not be limited to, the following topics:
(1) The nature, extent and causes of domestic and family violence;
(2) Practices designed to promote safety of the victim and other family and household members, including safety plans;
(3) Resources available for victims and perpetrators of domestic and family violence;
(4) Sensitivity to gender bias and cultural, racial and sexual issues; and
(5) The lethal nature of domestic and family violence.
(d) As used in this section, "state, county and municipal employees who work with cases of domestic and family violence" include:
(1) Probation officers;
(2) Child protective service workers;
(3) Psychologists;
(4) Social workers;
(5) Court appointed special advocates;
(6) Custody evaluators; and
(7) Other persons who are required by law to report suspected cases of child abuse and neglect.
§48-2C-18. Continuing education for attorneys.

(a) The West Virginia state bar shall provide courses of continuing legal education in domestic and family violence for attorneys.
(b) The courses for attorneys shall be prepared and presented in consultation with persons who have demonstrated expertise and experience in providing legal assistance to victims and perpetrators of domestic and family violence, advocates for victims, the West Virginia coalition against domestic violence and the family protection services board.
(c) The courses for attorneys shall include, but not be limited to, the following topics:
(1) The nature, extent and causes of domestic and family violence;
(2) Practices designed to promote safety of the victim and other family and household members, including safety plans;
(3) Resources available for victims and perpetrators of domestic and family violence;
(4) Sensitivity to gender bias and cultural, racial and sexual issues; and
(5) The lethal nature of domestic and family violence.
§48-2C-19. Required curricula for public education system.

(a) The state department of education shall select or develop:
(1) Curricula for pupils concerning domestic and family violence that are appropriate for various ages; and
(2) Curricula for school counselors, health-care personnel, administrators and teachers concerning domestic and family violence.
(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 victims of domestic or family violence and programs of intervention for perpetrators of domestic or family violence, advocates for victims; the West Virginia coalition against domestic violence, persons who have demonstrated expertise and experience in education and domestic and family violence and the family protection services board.
(c) The curricula shall include, but not be limited to, the following topics:
(1) The nature, extent and causes of domestic and family violence;
(2) Issues of domestic and family violence concerning children;
(3) The prevention of the use of violence by children;
(4) Sensitivity to gender bias and cultural, racial and sexual issues;
(5) Violence in dating and other social relationships; and
(6) Practices designed to promote safety of the victim and other family and household members, including safety plans.
§48-2C-20. Continuing education for school personnel who are required to report child abuse and neglect.

(a) The state department of education shall provide courses of continuing education concerning domestic and family violence for employees who are required by law to report child abuse or neglect.
(b) The courses 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 and family violence, advocates for victims, the West Virginia coalition against domestic violence and the family protection services board.
(c) The courses shall include, but are not limited to, the following:
(1) The nature, extent and causes of domestic and family violence;
(2) Practices designed to promote safety of the victim and other family and household members, including safety plans;
(3) Issues of domestic and family violence concerning children;
(4) Sensitivity to gender bias and cultural, racial and sexual issues; and
(5) The lethal nature of domestic and family violence.
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 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, services must be offered to the victimized parent and the provision of these services may not be made contingent upon a finding that either parent is at fault or has failed to protect the child.

NOTE: The purpose of this bill is to incorporate certain sections of the "Model Code on Domestic and Family Violence" into West Virginia's law dealing with the prevention and treatment of domestic and family violence. The model law was developed by the National Council of Juvenile and Family Court Judges.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§§48-2A-7, 7a and 7b; §§48-2C-4a, 4b, 10a, 13a, 13b, 16, 17, 18, 19 and 20; and §49-6A-9a are new; therefore, strike-throughs and underscoring have been omitted.

§48-2A-13 has been entirely rewritten; therefore, strike-throughs and underscoring have been omitted.
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