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S1336................................................by JUDICIARY AND RULES PROTECTION ORDERS - Amends existing law to provide that the court shall not consider whether the respondent is incarcerated or is otherwise in the custody of the state as a factor in determining whether to grant or deny a protection order. 01/26 Senate intro - 1st rdg - to printing 01/27 Rpt prt - to Jud
S1336|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fourth Legislature Second Regular Session - 1998IN THE SENATE SENATE BILL NO. 1336 BY JUDICIARY AND RULES COMMITTEE 1 AN ACT 2 RELATING TO DOMESTIC VIOLENCE; AMENDING SECTION 39-6306, IDAHO CODE, TO PRO- 3 VIDE THAT THE COURT SHALL NOT CONSIDER WHETHER THE RESPONDENT IS INCARCER- 4 ATED OR IS OTHERWISE IN THE CUSTODY OF THE STATE AS A FACTOR IN DETERMIN- 5 ING WHETHER TO GRANT OR DENY A PROTECTION ORDER; AND AMENDING SECTION 6 39-6308, IDAHO CODE, TO PROVIDE THAT THE COURT SHALL NOT CONSIDER WHETHER 7 THE RESPONDENT IS INCARCERATED OR IS OTHERWISE IN THE CUSTODY OF THE STATE 8 AS A FACTOR IN DETERMINING WHETHER TO GRANT OR DENY AN EX PARTE TEMPORARY 9 PROTECTION ORDER. 10 Be It Enacted by the Legislature of the State of Idaho: 11 SECTION 1. That Section 39-6306, Idaho Code, be, and the same is hereby 12 amended to read as follows: 13 39-6306. HEARING ON PETITION FOR PROTECTION ORDER -- RELIEF PROVIDED AND 14 REALIGNMENT OF DESIGNATION OF PARTIES. (1) Upon filing of a petition based 15 upon a sworn affidavit for a protection order, the court shall hold a hearing 16 to determine whether the relief sought shall be granted within fourteen (14) 17 days. If either party is represented by counsel at a hearing seeking entry of 18 a protection order, the court shall permit a continuance, if requested, of the 19 proceedings so that counsel may be obtained by the other party. If the court 20 finds that it is necessary for both parties to be represented by counsel, the 21 court shall enter appropriate orders to insure that counsel is retained. The 22 order entered may require either the petitioner or respondent, or both, to pay 23 for costs of counsel. Upon a showing that there is an immediate and present 24 danger of domestic violence to the petitioner the court may, if requested, 25 order for a period not to exceed three (3) months that: 26 (a) Temporary custody of the minor children of the petitioner or of the 27 parties be awarded to the petitioner or respondent if exercise of such 28 jurisdiction is consistent with the provisions of section 32-1103, Idaho 29 Code, and consistent with prior custody orders entered by a court of com- 30 petent jurisdiction unless grounds exist pursuant to section 32-717, Idaho 31 Code; 32 (b) A party be restrained from committing acts of domestic violence; 33 (c) Exclude the respondent from the dwelling which the parties share or 34 from the residence of the petitioner; 35 (d) The respondent be ordered to participate in treatment or counseling 36 services. The council on domestic violence, in recognition of the particu- 37 lar treatment requirements for batterers, shall develop minimal program 38 and treatment standards to be used as guidelines for recommending approval 39 of batterer programs to the court; 40 (e) Other relief be ordered as the court deems necessary for the protec- 41 tion of a family or household member, including orders or directives to a 42 peace officer, as allowed under this chapter; 43 (f) The respondent be required to pay service fees, and to reimburse the 2 1 petitioner for costs incurred in bringing the action, including a reason- 2 able attorney's fee; 3 (g) The respondent be restrained from contacting, molesting, interfering 4 with or menacing the minor children whose custody is awarded to the peti- 5 tioner; and/or 6 (h) The respondent be restrained from entering any premises when it 7 appears to the court that such restraint is necessary to prevent the 8 respondent from contacting, molesting, interfering with or menacing the 9 petitioner or the minor children whose custody is awarded to the peti- 10 tioner. 11 (2) Immediate and present danger under this section includes, but is not 12 limited to, situations in which the respondent has recently threatened the 13 petitioner with bodily harm or engaged in domestic violence against the peti- 14 tioner. The court shall not consider whether the respondent is incarcer- 15 ated or is otherwise in the custody of the state as a factor in determining 16 whether to grant or deny a protection order under the provisions of this sec- 17 tion. 18 (3) No order made under this chapter shall in any manner affect title to 19 real property. 20 (4) Relief shall not be denied because petitioner used reasonable force 21 in self-defense against respondent, or because petitioner or respondent was a 22 minor at the time of the incident of domestic violence. 23 (5) Any relief granted by the protection order, other than a judgment for 24 costs, shall be for a fixed period not to exceed three (3) months; provided, 25 that an order obtained pursuant to this chapter may, upon motion and upon good 26 cause shown, be renewed for additional terms not to exceed one (1) year each 27 if the requirements of this chapter are met. The motion to renew an order may 28 be granted without a hearing, if not timely objected to by the party against 29 whom the order was entered. 30 (6) In providing relief under this chapter, the court may realign the 31 designation of the parties as "petitioner" and "respondent" where the court 32 finds that the original petitioner is the abuser and the original respondent 33 is the victim of domestic violence. 34 SECTION 2. That Section 39-6308, Idaho Code, be, and the same is hereby 35 amended to read as follows: 36 39-6308. EX PARTE TEMPORARY PROTECTION ORDER. (1) Where an application 37 under this section alleges that irreparable injury could result from domestic 38 violence if an order is not issued immediately without prior notice to the 39 respondent, the court may grant an ex parte temporary protection order based 40 upon the affidavit submitted or otherwise shall hold a hearing which may be ex 41 parte on the day a petition is filed or on the following judicial day to 42 determine whether the court should grant an ex parte temporary protection 43 order, pending a full hearing, and grant such other relief as the court deems 44 proper, including an order: 45 (a) Restraining any party from committing acts of domestic violence; 46 (b) Excluding any party from the dwelling shared or from the residence of 47 the other until further order of the court; 48 (c) Restraining any party from interfering with the other's custody of 49 the minor children or from removing the children from the jurisdiction of 50 the court; 51 (d) Ordering other relief as the court deems necessary for the protection 52 of a family or household member, including orders or directives to a peace 53 officer, as allowed under this chapter; 3 1 (e) Restraining the respondent from contacting, molesting, interfering 2 with or menacing the minor children whose custody is awarded to the peti- 3 tioner; 4 (f) Restraining the respondent from entering any premises when it appears 5 to the court that such restraint is necessary to prevent the respondent 6 from contacting, molesting, interfering with or menacing the petitioner or 7 the minor children whose custody is awarded to the petitioner; and/or 8 (g) Restraining the respondent from taking more than personal clothing and 9 toiletries and any other items specifically ordered by the court. 10 (2) An ex parte hearing to consider the issuance of a temporary protec- 11 tion order may be conducted by telephone in accordance with procedures estab- 12 lished by the Idaho supreme court. 13 (3) Irreparable injury under this section includes but is not limited to 14 situations in which the respondent has recently threatened the petitioner with 15 bodily injury or has engaged in acts of domestic violence against the peti- 16 tioner. The court shall not consider whether the respondent is incarcer- 17 ated or is otherwise in the custody of the state as a factor in determining 18 whether to grant or deny a protection order under the provisions of this sec- 19 tion. 20 (4) The court shall hold an ex parte hearing on the day the petition is 21 filed or on the following judicial day. 22 (5) An ex parte temporary protection order shall be effective for a fixed 23 period not to exceed fourteen (14) days, but may be reissued. A full hearing, 24 as provided in this chapter, shall be set for not later than fourteen (14) 25 days from the issuance of the temporary order. The respondent shall be served 26 with a copy of the ex parte order along with a copy of the petition and notice 27 of the date set for the hearing. If the ex parte temporary protection order 28 substantially affects the respondent's rights to enter the domicile or the 29 respondent's right to custody or visitation of the respondent's children and 30 the ends of justice so require, the respondent may move the court for an order 31 shortening the time period within which the hearing required under the provi- 32 sions of section 39-6306, Idaho Code, must be held. Motions seeking an order 33 shortening the time period must be served upon the petitioner at least two (2) 34 days prior to the hearing on the motion.
STATEMENT OF PURPOSE
RS07666
This legislation amends Idaho Code section 39-6306(2) and 39-6308(3), to provide that a protection
order shall not be summarily denied because the respondent is in the custody of the State.
THIS LEGISLATION PROVIDES THE ABILITY TO OBTAIN A PROTECTION ORDER EVEN
WHEN THE RESPONDENT IS IN JAIL OR OTHERWISE IN THE CUSTODY OF THE STATE.
This legislation amends the language defining "Immediate and present danger", and "Irreparable injury"
to require that the court, in considering whether to grant a protection order, shall not deny the order for
the reason that the respondent is in the custody of the State.
FISCAL IMPACT
There is no fiscal impact on the State of Idaho nor any of its political subdivisions.
CONTACT: Boise City Attorney's Office
Jody P. Carpenter, Deputy City Attorney
384-3870
S 1336