Senate Bill No. 258
(By Senators Caldwell, Dempsey, Minard, Minear, Rowe, Unger,
Hunter and White)
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[Introduced January 22, 2004; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §48-27-310, §48-27-802 and §48-27-903
of the code of West Virginia, 1931, as amended; and to amend
said code by adding thereto a new article, designated §48-28-
1, §48-28-2, §48-28-3, §48-28-4, §48-28-5, §48-28-6, §48-28-7,
§48-28-8, §48-28-9 and §48-28-10, all relating to the
enforcement of domestic violence protective orders generally.
Be it enacted by the Legislature of West Virginia:
That §48-27-310, §48-27-802 and §48-27-903 of the code of West
Virginia, 1931, as amended, be amended and reenacted; and that said
code be amended by adding thereto a new article, designated §48-28-
1, §48-28-2, §48-28-3, §48-28-4, §48-28-5, §48-28-6, §48-28-7, §48-
28-8, §48-28-9 and §48-28-10, all to read as follows:
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
§48-27-310. Full faith and credit.
Any protective order issued pursuant to this article shall be effective throughout the state in every county. Any
protective
protection order issued by any other state
territory or possession
of the United States, Puerto Rico, the District of Columbia or
Indian tribe of the United States, the District of Columbia, Puerto
Rico, the United States Virgin Islands or any territory or insular
possession subject to the jurisdiction of the United States or any
Indian tribe or band that has jurisdiction to issue protection
orders shall be accorded full faith and credit and enforced
as if
it were an order of this state whether or not such relief is
available in this state. A protective order from another
jurisdiction is presumed to be valid if the order appears authentic
on its face and shall be enforced in this state. If the validity
of the order is contested, the court or law enforcement to which
the order is presented shall, prior to the final hearing, determine
the existence, validity and terms of such order in the issuing
jurisdiction. A protective order from another jurisdiction may be
enforced even if the order is not entered into the state
law-enforcement information system described by 27-802 in
accordance with the provisions of section five, article
twenty-eight of this chapter.
§48-27-802. Maintenance of registry by state police.
(a) The West Virginia state police shall maintain a registry
in which it shall enter certified copies of
protective orders
entered by courts from every county in this state pursuant to the provisions of this article
or from other jurisdictions and of
protection orders issued by another jurisdiction pursuant to
their
laws its law: Provided, That the provisions of this subsection are
not effective until a central automated
record state law-
enforcement information system is developed.
(b) A petitioner who obtains a protective order pursuant to
this article, or
a protection order from another jurisdiction
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 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 West
Virginia state police where the order is to be registered.
(d) Upon receipt of a certified order for registration, the
local office of the
West Virginia state police shall provide
certified copies to any law-enforcement agency within its
jurisdiction, including
the city any municipal police
office and
the
county sheriff's office
of the sheriff.
(e) Nothing in this section precludes the enforcement of an
order in a county other than the county or jurisdiction in which
the order was issued if the petitioner has not registered the order
in the county in which an alleged violation of the order occurs.
§48-27-903. Misdemeanor offenses for violation of protective
order, repeat offenses, penalties.
(a) A respondent who abuses the petitioner or minor children
or who is physically present at any location in knowing and willful
violation of the terms of
an : (1) An emergency or final protective
order issued under the provisions of this article or section
5-509
five hundred nine, article five of this chapter granting
the relief
pursuant to the provisions of this article
or (2) a condition of
bail, probation, or parole which restricts contact between the
defendant, the probationer or the parolee and a member of his or
her family or household is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in the county or regional
jail for a period of not less than one day nor more than one year,
which jail term shall include actual confinement of not less than
twenty-four hours, and shall be fined not less than two hundred
fifty dollars nor more than two thousand dollars.
(b)
When a A respondent
previously convicted of the offense
described in who is convicted of a second or subsequent offense
under subsection (a) of this section
abuses the petitioner or minor
children or is physically present at any location in knowing and
willful violation of the terms of a temporary or final protective
order issued under the provisions of this article, the respondent
is guilty of a misdemeanor and, upon conviction thereof, shall be
confined in the county or regional jail for not less than three months nor more than one year, which jail term shall include actual
confinement of not less than twenty-four hours, and fined not less
than five hundred dollars nor more than three thousand dollars, or
both.
ARTICLE 28. UNIFORM INTERSTATE ENFORCEMENT OF DOMESTIC VIOLENCE
PROTECTION ORDERS ACT.
§48-28-1. Title.
This article may be cited as the "Uniform Interstate
Enforcement of Domestic Violence Protection Orders Act".
§48-28-2. Definitions.
In this article:
(1) "Court" means a circuit court, family court or magistrate
court which has jurisdiction over domestic violence proceedings
pursuant to article twenty-seven of this chapter.
(2) "Foreign protection order" means a protection order issued
by a tribunal of another state.
(3) "Issuing state" means the state whose tribunal issues a
protection order.
(4) "Mutual foreign protection order" means a foreign
protection order that includes provisions in favor of both the
protected individual seeking enforcement of the order and the
respondent.
(5) "Protected individual" means an individual protected by a
protection order.
(6) "Protection order" means an injunction or other order, issued by a tribunal under the domestic violence, family violence
or antistalking laws of the issuing state, to prevent an individual
from engaging in violent or threatening acts against, harassment
of, contact or communication with, or physical proximity to,
another individual.
(7) "Protective order" means an order issued pursuant to
article twenty-seven of this chapter or to section five hundred
nine, article five of this chapter.
(8) "Respondent" means the individual against whom enforcement
of a protection order is sought.
(9) "State" means a state of the United States, the District
of Columbia, Puerto Rico, the United States Virgin Islands or any
territory or insular possession subject to the jurisdiction of the
United States. The term includes an Indian tribe or band that has
jurisdiction to issue protection orders.
(10) "Tribunal" means a court, agency or other entity
authorized by law to issue or modify a protection order.
§48-28-3. Judicial enforcement of order.
(a) A person authorized by the law of this state to seek
enforcement of a protective order may seek enforcement of a valid
foreign protection order in a court of this state. The court shall
enforce the terms of the order, including terms that provide relief
that a court of this state would lack power to provide but for this
section. The court shall enforce the order, whether the order was obtained by independent action or in another proceeding, if it was
issued in response to a complaint, petition or motion filed by or
on behalf of an individual seeking protection. In a proceeding to
enforce a foreign protection order, the court shall follow the
procedures of this state for the enforcement of protective orders.
(b) A court of this state may not enforce a foreign protection
order issued by a tribunal of a state that does not recognize the
standing of a protected individual to seek enforcement of the
order.
(c) A court of this state shall enforce the provisions of a
valid foreign protection order which govern custody and visitation
if the order was issued in accordance with the jurisdictional
requirements governing the issuance of custody and visitation
orders in the issuing state or under federal law and with the
requirements set out in subsection (d) of this section.
(d) A foreign protection order is valid if it:
(1) Identifies the protected individual and the respondent;
(2) Is currently in effect;
(3) Was issued by a tribunal that had jurisdiction over the
parties and subject matter under the law of the issuing state; and
(4) Was issued after the respondent was given reasonable
notice and had an opportunity to be heard before the tribunal
issued the order or, in the case of an order ex parte, the
respondent was given notice and has had or will have an opportunity to be heard within a reasonable time after the order was issued, in
a manner consistent with the respondent's rights to due process of
law.
(e) A foreign protection order which appears authentic on its
face is presumed to be valid.
(f) Absence of any of the criteria for validity of a foreign
protection order is an affirmative defense in an action seeking
enforcement of the order.
(g) A court of this state may enforce provisions of a mutual
foreign protection order which favor a respondent only if:
(1) The respondent filed a written pleading seeking a
protection order from the tribunal of the issuing state; and
(2) The tribunal of the issuing state made specific findings
in favor of the respondent.
§48-28-4. Nonjudicial enforcement of order.
(a) A law-enforcement officer of this state, upon determining
that there is probable cause to believe that a valid foreign
protection order exists and that the order has been violated, shall
enforce the order as if it were a protective order of a court of
this state. Presentation of a foreign protection order that
identifies both the protected individual and the respondent and
that appears, on its face, to be authentic and currently in effect
constitutes probable cause to believe that a valid foreign
protection order exists. For the purposes of this section, the protection order may be inscribed on a tangible medium or may have
been stored in an electronic or other medium if it is retrievable
in perceivable form. Presentation of a certified copy of a
protection order is not required for enforcement.
(b) If a foreign protection order is not presented, a
law-enforcement officer of this state may consider other credible
information in determining whether there is probable cause to
believe that a valid foreign protection order exists.
(c) If a law-enforcement officer of this state determines that
an otherwise valid foreign protection order cannot be enforced
because the respondent has not been notified of or served with the
order, the officer shall inform the respondent of the order, make
a reasonable effort to serve the order upon the respondent and
allow the respondent a reasonable opportunity to comply with the
order before enforcing the order.
(d) Registration or filing of an order in this state is not
required for the enforcement of a valid foreign protection order
pursuant to this article.
§48-28-5. Registration of order.
(a) Any individual may register a foreign protection order in
this state by:
(1) Presenting a certified copy of the order to a local office
of the West Virginia state police for registration in accordance
with the provisions of section eight hundred two, article twenty-seven of this chapter; or
(2) Presenting a certified copy of the order to the clerk of
the court in which enforcement may be sought and request that the
order be forwarded to the West Virginia state police for
registration in accordance with the provisions of section eight
hundred two, article twenty-seven of this chapter.
(b) An individual registering a foreign protection order shall
file an affidavit by the protected individual stating that, to the
best of the protected individual's knowledge, the order is
currently in effect.
(c) Upon receipt of a foreign protection order for
registration, the local office of the West Virginia state police
shall:
(1) Provide certified copies of the order to any law-
enforcement agency within its jurisdiction, including any municipal
police office and the office of the sheriff;
(2) Register the order in accordance with the provisions of
this section and of section eight hundred two, article twenty-seven
of this chapter;
(3) Furnish to the individual registering the order a
certified copy of the registered order.
(d) A registered foreign protection order that is shown to be
inaccurate or not currently in effect must be corrected or removed
from the registry.
(e) A foreign protection order registered under this article
may be entered in any existing state or federal registry of
protection orders in accordance with applicable law.
(f) A fee may not be charged for the registration of a foreign
protection order.
§48-28-6. Immunity.
This state or a local governmental agency, or a
law-enforcement officer, prosecuting attorney, clerk of court or
any state or local governmental official acting in an official
capacity, is immune from civil and criminal liability for an act or
omission arising out of the registration or enforcement of a
foreign protection order or the detention or arrest of an alleged
violator of a foreign protection order if the act or omission was
done in good faith in an effort to comply with this article.
§48-28-7. Criminal offenses and penalties.
(a) A respondent who abuses, as that term is defined in
section two hundred two, article twenty-seven of this chapter, a
protected individual or who is physically present at any location
in knowing and willful violation of the terms of: (1) a valid
foreign protection order; (2) a protection order entered in any
pending foreign divorce action which enjoins the offending party
from molesting or interfering with another party, or interfering
with the custodial or visitation rights of another person; or (3)
a condition of bail, probation or parole imposed in another state which restricts contact between the defendant, probationer or
parolee and (A) members of his or her family or household or (B)
the victim of the crime of stalking or members of the victim's
family is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in the county or regional jail for a period of
not less than one day nor more than one year, which jail term shall
include actual confinement of not less than twenty-four hours, and
shall be fined not less than two hundred fifty dollars nor more
than two thousand dollars.
(b) A respondent who is convicted of a second or subsequent
offense under subsection (a) of this section is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in the
county or regional jail for not less than three months nor more
than one year, which jail term shall include actual confinement of
not less than twenty-four hours, and fined not less than five
hundred dollars nor more than three thousand dollars.
§48-28-8. Other remedies.
A protected individual who pursues remedies under this article
is not precluded from pursuing other legal or equitable remedies
against the respondent.
§48-28-9. Uniformity of application and construction.
In applying and construing this act, consideration must be
given to the need to promote uniformity of the law with respect to
its subject matter among states that enact it.
§48-28-10. Transitional provision.
This article applies to:
(a) Foreign protection orders issued before the effective date
of this article; and
(b) Continuing actions for enforcement of foreign protection
orders commenced before the effective date of this article. A
request for enforcement, made on or after the effective date of
this article, of a foreign protection order based on violations
which occurred before the effective date of this article is
governed by this article.
NOTE: The purpose of this bill is to establish a procedure for
enforcement of out-of-state domestic violence protection orders in
West Virginia similar to the procedures approved by other states
adopting the uniform act, thereby facilitating enforcement of
foreign domestic violence orders in all of those states.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added. Article 28 is new; therefore, strike-throughs and
underscoring have been omitted.
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