HB673: Protective orders; Allows general distict court to transfer case to appropriate court.
Be it enacted by the General Assembly of Virginia:
1. That §§ 16.1-241 and 19.2-152.10 of the Code of Virginia are amended and reenacted as follows:
§ 16.1-241. Jurisdiction; consent for abortion.
The judges of the juvenile and domestic relations district court elected or appointed under this law shall be conservators of the peace within the corporate limits of the cities and the boundaries of the counties for which they are respectively chosen and within one mile beyond the limits of such cities and counties. Except as hereinafter provided, each juvenile and domestic relations district court shall have, within the limits of the territory for which it is created, exclusive original jurisdiction, and within one mile beyond the limits of said city or county, concurrent jurisdiction with the juvenile court or courts of the adjoining city or county, over all cases, matters and proceedings involving:
A. The custody, visitation, support, control or disposition of a child:
1. Who is alleged to be abused, neglected, in need of services, in need of supervision, a status offender, or delinquent except where the jurisdiction of the juvenile court has been terminated or divested;
2. Who is abandoned by his parent or other custodian or who by reason of the absence or physical or mental incapacity of his parents is without parental care and guardianship;
2a. Who is at risk of being abused or neglected by a parent or custodian who has been adjudicated as having abused or neglected another child in the care of the parent or custodian;
3. Whose custody, visitation or support is a subject of controversy or requires determination. In such cases jurisdiction shall be concurrent with and not exclusive of courts having equity jurisdiction, except as provided in § 16.1-244;
4. Who is the subject of an entrustment agreement entered into pursuant to § 63.2-903 or 63.2-1817 or whose parent or parents for good cause desire to be relieved of his care and custody;
5. Where the termination of residual parental rights and responsibilities is sought. In such cases jurisdiction shall be concurrent with and not exclusive of courts having equity jurisdiction, as provided in § 16.1-244; and
6. Who is charged with a traffic infraction as defined in § 46.2-100.
In any case in which the juvenile is alleged to have committed a violent juvenile felony enumerated in subsection B of § 16.1-269.1, and for any charges ancillary thereto, the jurisdiction of the juvenile court shall be limited to conducting a preliminary hearing to determine if there is probable cause to believe that the juvenile committed the act alleged and that the juvenile was 14 years of age or older at the time of the commission of the alleged offense, and any matters related thereto. In any case in which the juvenile is alleged to have committed a violent juvenile felony enumerated in subsection C of § 16.1-269.1, and for all charges ancillary thereto, if the attorney for the Commonwealth has given notice as provided in subsection C of § 16.1-269.1, the jurisdiction of the juvenile court shall be limited to conducting a preliminary hearing to determine if there is probable cause to believe that the juvenile committed the act alleged and that the juvenile was 14 years of age or older at the time of the commission of the alleged offense, and any matters related thereto. A determination by the juvenile court following a preliminary hearing pursuant to subsection B or C of § 16.1-269.1 to certify a charge to the grand jury shall divest the juvenile court of jurisdiction over the charge and any ancillary charge. In any case in which a transfer hearing is held pursuant to subsection A of § 16.1-269.1, if the juvenile court determines to transfer the case, jurisdiction of the juvenile court over the case shall be divested as provided in § 16.1-269.6.
In all other cases involving delinquent acts, and in cases in which an ancillary charge remains after a violent juvenile felony charge has been dismissed or a violent juvenile felony has been reduced to a lesser offense not constituting a violent juvenile felony, the jurisdiction of the juvenile court shall not be divested unless there is a transfer pursuant to subsection A of § 16.1-269.1.
The authority of the juvenile court to adjudicate matters involving the custody, visitation, support, control or disposition of a child shall not be limited to the consideration of petitions filed by a mother, father or legal guardian but shall include petitions filed at any time by any party with a legitimate interest therein. A party with a legitimate interest shall be broadly construed and shall include, but not be limited to, grandparents, stepparents, former stepparents, blood relatives and family members. A party with a legitimate interest shall not include any person (i) whose parental rights have been terminated by court order, either voluntarily or involuntarily, (ii) whose interest in the child derives from or through a person whose parental rights have been terminated by court order, either voluntarily or involuntarily, including, but not limited to, grandparents, stepparents, former stepparents, blood relatives and family members, if the child subsequently has been legally adopted, except where a final order of adoption is entered pursuant to § 63.2-1241, or (iii) who has been convicted of a violation of subsection A of § 18.2-61, § 18.2-63, subsection B of § 18.2-366, or an equivalent offense of another state, the United States, or any foreign jurisdiction, when the child who is the subject of the petition was conceived as a result of such violation. The authority of the juvenile court to consider a petition involving the custody of a child shall not be proscribed or limited where the child has previously been awarded to the custody of a local board of social services.
B. The admission of minors for inpatient treatment in a mental
health facility in accordance with the provisions of Article 16 (§ 16.1-335 et
seq.) of this chapter and the
involuntary admission of a person with mental illness or judicial certification
of eligibility for admission to a training center for persons with mental
retardation in accordance with the provisions of Chapters 1 (§ 37.2-100 et
seq.) and 8 (§ 37.2-800 et seq.) of Title 37.2. Jurisdiction of the involuntary
admission and certification of adults shall be concurrent with the general
district court.
C. Except as provided in subsections D and H hereof, judicial consent to
such activities as may require parental consent may be given for a child who
has been separated from his parents, guardian, legal custodian or other person
standing in loco parentis and is in the custody of the court when such consent
is required by law.
D. Judicial consent for emergency surgical or medical treatment for a child who is neither married nor has ever been married, when the consent of his parent, guardian, legal custodian or other person standing in loco parentis is unobtainable because such parent, guardian, legal custodian or other person standing in loco parentis (i) is not a resident of the Commonwealth, (ii) has his whereabouts unknown, (iii) cannot be consulted with promptness, reasonable under the circumstances, or (iv) fails to give such consent or provide such treatment when requested by the judge to do so.
E. Any person charged with deserting, abandoning or failing to provide support for any person in violation of law.
F. Any parent, guardian, legal custodian or other person standing in loco parentis of a child:
1. Who has been abused or neglected;
2. Who is the subject of an entrustment agreement entered into
pursuant to § 63.2-903 or 63.2-1817 or is otherwise before the court pursuant
to subdivision A 4 of this section;
or
3. Who has been adjudicated in need of services, in need of supervision, or delinquent, if the court finds that such person has by overt act or omission induced, caused, encouraged or contributed to the conduct of the child complained of in the petition.
G. Petitions filed by or on behalf of a child or such child's parent, guardian, legal custodian or other person standing in loco parentis for the purpose of obtaining treatment, rehabilitation or other services that are required by law to be provided for that child or such child's parent, guardian, legal custodian or other person standing in loco parentis. Jurisdiction in such cases shall be concurrent with and not exclusive of that of courts having equity jurisdiction as provided in § 16.1-244.
H. Judicial consent to apply for a work permit for a child when such child is separated from his parents, legal guardian or other person standing in loco parentis.
I. The prosecution and punishment of persons charged with ill-treatment, abuse, abandonment or neglect of children or with any violation of law that causes or tends to cause a child to come within the purview of this law, or with any other offense against the person of a child. In prosecution for felonies over which the court has jurisdiction, jurisdiction shall be limited to determining whether or not there is probable cause.
J. All offenses in which one family or household member is charged with an offense in which another family or household member is the victim and all offenses under § 18.2-49.1.
In prosecution for felonies over which the court has jurisdiction, jurisdiction shall be limited to determining whether or not there is probable cause. Any objection based on jurisdiction under this subsection shall be made before a jury is impaneled and sworn in a jury trial or, in a nonjury trial, before the earlier of when the court begins to hear or receive evidence or the first witness is sworn, or it shall be conclusively waived for all purposes. Any such objection shall not affect or be grounds for challenging directly or collaterally the jurisdiction of the court in which the case is tried.
K. Petitions filed by a natural parent, whose parental rights to a child have been voluntarily relinquished pursuant to a court proceeding, to seek a reversal of the court order terminating such parental rights. No such petition shall be accepted, however, after the child has been placed in the home of adoptive parents.
L. Any person who seeks spousal support after having separated from his spouse. A decision under this subdivision shall not be res judicata in any subsequent action for spousal support in a circuit court. A circuit court shall have concurrent original jurisdiction in all causes of action under this subdivision.
M. Petitions filed for the purpose of obtaining an order of protection pursuant to § 16.1-253.1 or 16.1-279.1, and all petitions filed for the purpose of obtaining an order of protection pursuant to § 19.2-152.10 that have been transferred to the juvenile and domestic relations district court pursuant to subsection B of § 19.2-152.10.
N. Any person who escapes or remains away without proper authority from a residential care facility in which he had been placed by the court or as a result of his commitment to the Virginia Department of Juvenile Justice.
O. Petitions for emancipation of a minor pursuant to Article
15 (§ 16.1-331 et seq.) of this chapter.
P. Petitions for enforcement of administrative support orders entered pursuant to Chapter 19 (§ 63.2-1900 et seq.) of Title 63.2, or by another state in the same manner as if the orders were entered by a juvenile and domestic relations district court upon the filing of a certified copy of such order in the juvenile and domestic relations district court.
Q. Petitions for a determination of parentage pursuant to Chapter 3.1 (§ 20-49.1 et seq.) of Title 20. A circuit court shall have concurrent original jurisdiction to the extent provided for in § 20-49.2.
R. Petitions for the purpose of obtaining an emergency protective order pursuant to § 16.1-253.4.
S. Petitions filed by school boards against parents pursuant to §§ 16.1-241.2 and 22.1-279.3.
T. Petitions to enforce any request for information or subpoena that is not complied with or to review any refusal to issue a subpoena in an administrative appeal regarding child abuse and neglect pursuant to § 63.2-1526.
U. Petitions filed in connection with parental placement adoption consent hearings pursuant to § 63.2-1233. Such proceedings shall be advanced on the docket so as to be heard by the court within 10 days of filing of the petition, or as soon thereafter as practicable so as to provide the earliest possible disposition.
V. Petitions filed by a juvenile seeking judicial authorization for a physician to perform an abortion if a minor elects not to seek consent of an authorized person.
After a hearing, a judge shall issue an order authorizing a physician to perform an abortion, without the consent of any authorized person, if he finds that (i) the minor is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independent of the wishes of any authorized person, or (ii) the minor is not mature enough or well enough informed to make such decision, but the desired abortion would be in her best interest.
If the judge authorizes an abortion based on the best interests of the minor, such order shall expressly state that such authorization is subject to the physician or his agent giving notice of intent to perform the abortion; however, no such notice shall be required if the judge finds that such notice would not be in the best interest of the minor. In determining whether notice is in the best interest of the minor, the judge shall consider the totality of the circumstances; however, he shall find that notice is not in the best interest of the minor if he finds that (i) one or more authorized persons with whom the minor regularly and customarily resides is abusive or neglectful, and (ii) every other authorized person, if any, is either abusive or neglectful or has refused to accept responsibility as parent, legal guardian, custodian or person standing in loco parentis.
The minor may participate in the court proceedings on her own behalf, and the court may appoint a guardian ad litem for the minor. The court shall advise the minor that she has a right to counsel and shall, upon her request, appoint counsel for her.
Notwithstanding any other provision of law, the provisions of this subsection shall govern proceedings relating to consent for a minor's abortion. Court proceedings under this subsection and records of such proceedings shall be confidential. Such proceedings shall be given precedence over other pending matters so that the court may reach a decision promptly and without delay in order to serve the best interests of the minor. Court proceedings under this subsection shall be heard and decided as soon as practicable but in no event later than four days after the petition is filed.
An expedited confidential appeal to the circuit court shall be available to any minor for whom the court denies an order authorizing an abortion without consent or without notice. Any such appeal shall be heard and decided no later than five days after the appeal is filed. The time periods required by this subsection shall be subject to subsection B of § 1-210. An order authorizing an abortion without consent or without notice shall not be subject to appeal.
No filing fees shall be required of the minor at trial or upon appeal.
If either the original court or the circuit court fails to act within the time periods required by this subsection, the court before which the proceeding is pending shall immediately authorize a physician to perform the abortion without consent of or notice to an authorized person.
Nothing contained in this subsection shall be construed to authorize a physician to perform an abortion on a minor in circumstances or in a manner that would be unlawful if performed on an adult woman.
A physician shall not knowingly perform an abortion upon an unemancipated minor unless consent has been obtained or the minor delivers to the physician a court order entered pursuant to this section and the physician or his agent provides such notice as such order may require. However, neither consent nor judicial authorization nor notice shall be required if the minor declares that she is abused or neglected and the attending physician has reason to suspect that the minor may be an abused or neglected child as defined in § 63.2-100 and reports the suspected abuse or neglect in accordance with § 63.2-1509; or if there is a medical emergency, in which case the attending physician shall certify the facts justifying the exception in the minor's medical record.
For purposes of this subsection:
"Authorization" means the minor has delivered to the physician a notarized, written statement signed by an authorized person that the authorized person knows of the minor's intent to have an abortion and consents to such abortion being performed on the minor.
"Authorized person" means (i) a parent or duly appointed legal guardian or custodian of the minor or (ii) a person standing in loco parentis, including, but not limited to, a grandparent or adult sibling with whom the minor regularly and customarily resides and who has care and control of the minor. Any person who knows he is not an authorized person and who knowingly and willfully signs an authorization statement consenting to an abortion for a minor is guilty of a Class 3 misdemeanor.
"Consent" means that (i) the physician has given notice of intent to perform the abortion and has received authorization from an authorized person, or (ii) at least one authorized person is present with the minor seeking the abortion and provides written authorization to the physician, which shall be witnessed by the physician or an agent thereof. In either case, the written authorization shall be incorporated into the minor's medical record and maintained as a part thereof.
"Medical emergency" means any condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of the pregnant minor as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create a serious risk of substantial and irreversible impairment of a major bodily function.
"Notice of intent to perform the abortion" means that (i) the physician or his agent has given actual notice of his intention to perform such abortion to an authorized person, either in person or by telephone, at least 24 hours previous to the performance of the abortion; or (ii) the physician or his agent, after a reasonable effort to notify an authorized person, has mailed notice to an authorized person by certified mail, addressed to such person at his usual place of abode, with return receipt requested, at least 72 hours prior to the performance of the abortion.
"Perform an abortion" means to interrupt or terminate a pregnancy by any surgical or nonsurgical procedure or to induce a miscarriage as provided in § 18.2-72, 18.2-73, or 18.2-74.
"Unemancipated minor" means a minor who has not been
emancipated by (i) entry into a valid marriage, even though the marriage may
have been terminated by dissolution; (ii) active duty with any of the Armed
Forces of the United States; (iii) willingly living separate and apart from his
or her parents or guardian, with the consent or acquiescence of the parents or
guardian; or (iv) entry of an order of emancipation pursuant to Article 15 (§
16.1-331 et seq.) of this chapter.
W. Petitions filed pursuant to Article 17 (§ 16.1-349 et seq.) of this chapter relating to
standby guardians for minor children.
The ages specified in this law refer to the age of the child at the time of the acts complained of in the petition.
Notwithstanding any other provision of law, no fees shall be
charged by a sheriff for the service of any process in a proceeding pursuant to
subdivision 3 of subsection A, except as provided in subdivision A 6 of §
17.1-272, or subsection B, D, M or R of this section.
Notwithstanding the provisions of § 18.2-71, any physician who performs an abortion in violation of subsection V shall be guilty of a Class 3 misdemeanor.
§ 19.2-152.10. Protective order.
A. The court may issue a protective order pursuant to this chapter to protect the health and safety of the petitioner and family or household members of a petitioner upon (i) the issuance of a petition or warrant for, or a conviction of, any criminal offense resulting from the commission of an act of violence, force, or threat or (ii) a hearing held pursuant to subsection D of § 19.2-152.9. A protective order issued under this section may include any one or more of the following conditions to be imposed on the respondent:
1. Prohibiting acts of violence, force, or threat or criminal offenses that may result in injury to person or property;
2. Prohibiting such contacts by the respondent with the petitioner or family or household members of the petitioner as the court deems necessary for the health or safety of such persons; and
3. Any other relief necessary to prevent (i) acts of violence, force, or threat, (ii) criminal offenses that may result in injury to person or property, or (iii) communication or other contact of any kind by the respondent.
B. If a protective order is sought in a general district court pursuant to this section, the court may, on its own motion or on the motion of either the petitioner or the respondent made prior to the admission of any evidence, transfer the case to a circuit court or juvenile and domestic relations district court if the general district court determines that either the petitioner or respondent is a party to a substantially related action pending in either such court.
C. The protective order may be issued for a specified period of time up to a maximum of two years. The protective order shall expire at 11:59 p.m. on the last day specified or at 11:59 p.m. on the last day of the two-year period if no date is specified. Prior to the expiration of the protective order, a petitioner may file a written motion requesting a hearing to extend the order. Proceedings to extend a protective order shall be given precedence on the docket of the court. The court may extend the protective order for a period not longer than two years to protect the health and safety of the petitioner or persons who are family or household members of the petitioner at the time the request for an extension is made. The extension of the protective order shall expire at 11:59 p.m. on the last day specified or at 11:59 p.m. on the last day of the two-year period if no date is specified. Nothing herein shall limit the number of extensions that may be requested or issued.
C.D. A copy of the protective
order shall be served on the respondent and provided to the petitioner as soon
as possible. The court shall forthwith, but in all cases no later than the end
of the business day on which the order was issued, enter and transfer
electronically to the Virginia Criminal Information Network the respondent's
identifying information and the name, date of birth, sex, and race of each
protected person provided to the court and shall forthwith forward the attested
copy of the protective order and containing any such identifying information to
the primary law-enforcement agency responsible for service and entry of
protective orders. Upon receipt of the order by the primary law-enforcement
agency, the agency shall forthwith verify and enter any modification as
necessary to the identifying information and other appropriate information
required by the Department of State Police into the Virginia Criminal
Information Network established and maintained by the Department pursuant to
Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith
upon the respondent and due return made to the court. However, if the order is
issued by the circuit court, the clerk of the circuit court shall forthwith
forward an attested copy of the order containing the respondent's identifying
information and the name, date of birth, sex, and race of each protected person
provided to the court to the primary law-enforcement agency providing service
and entry of protective orders and upon receipt of the order, the primary
law-enforcement agency shall enter the name of the person subject to the order
and other appropriate information required by the Department of State Police
into the Virginia Criminal Information Network established and maintained by
the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the
order shall be served forthwith on the respondent. Upon service, the agency
making service shall enter the date and time of service and other appropriate
information required into the Virginia Criminal Information Network and make
due return to the court. If the order is later dissolved or modified, a copy of
the dissolution or modification order shall also be attested, forwarded
forthwith to the primary law-enforcement agency responsible for service and
entry of protective orders, and upon receipt of the order by the primary
law-enforcement agency, the agency shall forthwith verify and enter any
modification as necessary to the identifying information and other appropriate
information required by the Department of State Police into the Virginia
Criminal Information Network as described above and the order shall be served
forthwith and due return made to the court.
D.E. Except as otherwise
provided, a violation of a protective order issued under this section shall
constitute contempt of court.
E.F. The court may assess costs
and attorneys' fees against either party regardless of whether an order of
protection has been issued as a result of a full hearing.
F.G. Any judgment, order or
decree, whether permanent or temporary, issued by a court of appropriate
jurisdiction in another state, the United States or any of its territories,
possessions or Commonwealths, the District of Columbia or by any tribal court
of appropriate jurisdiction for the purpose of preventing violent or
threatening acts or harassment against or contact or communication with or
physical proximity to another person, including any of the conditions specified
in subsection A, shall be accorded full faith and credit and enforced in the
Commonwealth as if it were an order of the Commonwealth, provided reasonable
notice and opportunity to be heard were given by the issuing jurisdiction to
the person against whom the order is sought to be enforced sufficient to
protect such person's due process rights and consistent with federal law. A
person entitled to protection under such a foreign order may file the order in
any appropriate district court by filing with the court, an attested or
exemplified copy of the order. Upon such a filing, the clerk shall forthwith
forward an attested copy of the order to the primary law-enforcement agency
responsible for service and entry of protective orders which shall, upon
receipt, enter the name of the person subject to the order and other
appropriate information required by the Department of State Police into the
Virginia Criminal Information Network established and maintained by the
Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52. Where
practical, the court may transfer information electronically to the Virginia
Criminal Information Network.
Upon inquiry by any law-enforcement agency of the Commonwealth, the clerk shall make a copy available of any foreign order filed with that court. A law-enforcement officer may, in the performance of his duties, rely upon a copy of a foreign protective order or other suitable evidence which has been provided to him by any source and may also rely upon the statement of any person protected by the order that the order remains in effect.
G.H. Either party may at any time
file a written motion with the court requesting a hearing to dissolve or modify
the order. Proceedings to modify or dissolve a protective order shall be given
precedence on the docket of the court.
H.I. Neither a law-enforcement
agency, the attorney for the Commonwealth, a court nor the clerk's office, nor
any employee of them, may disclose, except among themselves, the residential
address, telephone number, or place of employment of the person protected by
the order or that of the family of such person, except to the extent that
disclosure is (i) required by law or the Rules of the Supreme Court, (ii)
necessary for law-enforcement purposes, or (iii) permitted by the court for
good cause.
I.J. No fees shall be charged for
filing or serving petitions pursuant to this section.
J.K. As used in this section:
"Copy" includes a facsimile copy; and
"Protective order" includes an initial, modified or extended protective order.