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)
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[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.