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H0626................................by JUDICIARY, RULES AND ADMINISTRATION
CHILDREN - PROTECTION ORDERS - Adds to existing law to provide for
protection orders for children; and to set forth procedural and penalty
provisions relating to such orders.
02/12 House intro - 1st rdg - to printing
02/13 Rpt prt - to Jud
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature Second Regular Session - 2002
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 626
BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE
1 AN ACT
2 RELATING TO PROTECTION ORDERS FOR CHILDREN; AMENDING TITLE 16, IDAHO CODE, BY
3 THE ADDITION OF A NEW CHAPTER 2, TITLE 16, IDAHO CODE, TO PROVIDE FOR PRO-
4 TECTION ORDERS FOR CHILDREN, TO PROVIDE FOR AVAILABILITY OF PETITIONS, TO
5 PROVIDE FOR FILING OF PETITIONS, TO DEFINE TERMS, TO PROVIDE FOR HEARINGS
6 ON PETITIONS, TO DEFINE "IMMEDIATE AND PRESENT DANGER," TO LIMIT EFFECT OF
7 ORDERS, TO PROVIDE FOR SELF-DEFENSE, TO SPECIFY THE EFFECTIVE PERIOD OF
8 ORDERS, TO PROVIDE FOR SERVICE, TO PROVIDE PENALTIES, TO PROVIDE FOR PRI-
9 VATE RIGHTS OF ACTION, TO PROVIDE FOR MODIFICATION AND TRANSMITTAL AND TO
10 PROVIDE IMMUNITY FOR PEACE OFFICERS AND SCHOOL EMPLOYEES.
11 Be It Enacted by the Legislature of the State of Idaho:
12 SECTION 1. That Title 16, Idaho Code, be, and the same is hereby amended
13 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap-
14 ter 2, Title 16, Idaho Code, and to read as follows:
15 CHAPTER 2
16 PROTECTION ORDERS FOR CHILDREN
17 16-201. PROTECTION ORDERS. There shall exist an action known as a peti-
18 tion for an order for protection in cases where a parent or guardian has rea-
19 son to believe that contact with other persons is detrimental to the welfare
20 of their minor child. Relief pursuant to such petition may be granted follow-
21 ing a showing that the parent has previously given written demand that the
22 respondent cease contacting or attempting to contact the minor child or chil-
23 dren and that such written demand has been or is likely to be disregarded by
24 the respondent. No protection order issued pursuant to this chapter may be
25 validly entered against a parent of a child, a resident of the petitioner's
26 household or against any person with rights of visitation pursuant to a court
27 order.
28 16-202. AVAILABILITY OF PETITION. (1) Under this chapter, and in addition
29 to any other remedies under Idaho law, the parent of a child may file a peti-
30 tion with the magistrates division of the district court for an order of pro-
31 tection to restrain a person of any age from contact with their child upon a
32 showing that contact with the person to be enjoined is detrimental to the wel-
33 fare of their child.
34 (2) Simplified forms and instructional brochures regarding the petition
35 provided in this chapter shall be made available free of charge by the magis-
36 trates divisions of the district courts of this state.
37 16-203. FILING OF PETITION. (1) A petition for an order of protection
38 under this chapter:
39 (a) Shall specify the facts and circumstances leading the parent or
40 guardian to believe that contact with the person to be enjoined is detri-
2
1 mental to the welfare of their child;
2 (b) Shall be accompanied by an affidavit made under oath; and
3 (c) May be made regardless of whether or not there is a pending lawsuit,
4 complaint, petition or other action between the parties.
5 (2) A petition shall be filed in the county of either the respondent's or
6 the petitioner's residence.
7 (3) No filing fee may be charged for a petition for an order of protec-
8 tion under this chapter.
9 16-204. DEFINITIONS. As used in this chapter:
10 (1) "Child" means an individual who is under the age of eighteen (18)
11 years.
12 (2) "Parent" means a biological or adoptive parent or a legally appointed
13 guardian of a child.
14 (3) "Protection order" means an order issued for the purpose of prevent-
15 ing violent or threatening acts or acts of harassment against, or contact or
16 communication with, or physical proximity to, a child.
17 16-205. HEARING ON PETITION FOR PROTECTION ORDER -- RELIEF PROVIDED. (1)
18 Upon filing of a petition based upon a sworn affidavit for a protection order
19 the court shall, within fourteen (14) days, hold a hearing to determine
20 whether the relief sought shall be granted. If either party is represented by
21 counsel at the hearing seeking entry of a protection order, the court shall
22 permit a continuance, if requested, of the proceedings so that counsel may be
23 obtained by the other party. If the court finds that it is necessary for both
24 parties to be represented by counsel, the court shall enter appropriate orders
25 to allow for counsel to be retained. The order entered may require either the
26 petitioner or respondent, or both, to pay for costs of counsel. Upon a showing
27 that there is an immediate and present danger to the child or children of the
28 petitioner, the court may, if requested, order any or all of the following:
29 (a) Such other relief as the court deems necessary for the protection of
30 the petitioner's family, child or children;
31 (b) That the respondent be required to pay service fees and to reimburse
32 the petitioner for costs incurred in bringing the action, including rea-
33 sonable attorney's fees;
34 (c) The respondent be restrained from contacting, molesting, interfering
35 with or menacing the petitioner's minor child or children; or
36 (d) The respondent be restrained from entering any premises when it
37 appears to the court that such restraint is necessary to prevent the
38 respondent from contacting, molesting, interfering with or menacing the
39 petitioner or the petitioner's minor child or children; provided that if
40 the court orders that the restrained person not attend the public or
41 approved private elementary, middle or high school attended by the child
42 protected by the order:
43 (i) The parent or parents of the person restrained in the order
44 shall be responsible for transportation and other costs associated
45 with the change of school by the person restrained in the order; and
46 (ii) The court shall send notice of the restriction on attending the
47 same school as the person protected by the order to the public or
48 approved private school the person restrained by the order will
49 attend and to the school the person protected by the order attends.
50 (2) "Immediate and present danger" under this section includes, but is
51 not limited to, situations in which the respondent has recently threatened the
52 petitioner or the child or children of the petitioner with bodily harm.
53 (3) No order issued under this chapter shall in any manner affect title
3
1 to real property.
2 (4) Relief under this chapter shall not be denied because the petitioner
3 or the child or children of the petitioner used reasonable force in self-
4 defense against the respondent or because the petitioner or respondent was a
5 minor at the time of any incident at issue.
6 (5) Any relief granted by the protection order, other than a judgment for
7 costs, shall be for a fixed period not to exceed one (1) year; provided that
8 an order obtained pursuant to this chapter may, upon motion and upon good
9 cause shown, be renewed for additional terms not to exceed one (1) year each
10 if the requirements of this chapter are met. The motion to renew an order may
11 be granted without a hearing if not timely objected to by the party against
12 whom the order was entered.
13 16-206. SERVICE. (1) Except as provided in subsections (6) and (7) of
14 this section, an order issued under this chapter, along with a copy of the
15 petition for a protection order if the respondent has not previously received
16 the petition, shall be personally served upon the respondent.
17 (2) A peace officer of the jurisdiction in which the respondent resides
18 shall serve the respondent personally unless the petitioner elects to have the
19 respondent served by a private party at the petitioner's own expense.
20 (3) If service by a peace officer is to be used, the clerk of the court
21 shall have a copy of any order issued under this chapter and a copy of the
22 petition for a protection order, if the respondent has not previously received
23 the petition, forwarded on or before the next judicial day to the appropriate
24 law enforcement agency specified in the order for service upon the respondent.
25 Service of an order issued under this chapter shall take precedence over the
26 service of other documents unless they are of a similar emergency nature.
27 (4) If the peace officer cannot complete service upon the respondent
28 within ten (10) days, the sheriff or municipal peace officer shall notify the
29 petitioner. The petitioner shall provide information sufficient to permit
30 notification.
31 (5) Returns of service under this chapter shall be made in accordance
32 with applicable court rules.
33 (6) If an order entered by the court recites that the respondent appeared
34 in person before the court and received a copy of the order, the necessity for
35 further service is waived and proof of service of that order is not necessary.
36 (7) If a party has appeared in person before the court and has waived
37 personal service, the clerk of the court shall complete service of any notice
38 of hearing or orders or modifications by certified mail to the party's address
39 as shown on the court petition which resulted in the issuance of the order or
40 modification. Parties shall at all times keep the court informed of their cur-
41 rent mailing address.
42 16-207. VIOLATION OF ORDER -- PENALTIES. (1) Whenever a protection order
43 is granted and the respondent or person to be restrained had notice of the
44 order, a violation of the provisions of the order or of a provision excluding
45 the person from a building shall be a misdemeanor punishable by not to exceed
46 one (1) year in jail and a fine not to exceed one thousand dollars ($1,000).
47 (2) A peace officer may arrest without a warrant and take into custody a
48 person whom the peace officer has probable cause to believe has violated an
49 order, if the person restrained had notice of the order.
50 (3) In the event that the respondent attends a school with any child pro-
51 tected by the order, the school shall make reasonable efforts for the physical
52 and chronological separation of school activities of the respondent and the
53 protected child or children. The school shall make a written statement of such
4
1 reasonable efforts and a copy shall be provided to the petitioner and the
2 respondent. Compliance with the written statement of the school shall not con-
3 stitute a violation of the court's order.
4 (4) In addition to criminal prosecution, a private right of action shall
5 lie for all damages suffered by the petitioner or a child protected by an
6 order pursuant to this chapter for the respondent's violation of the order.
7 16-208. MODIFICATION -- TRANSMITTAL. Upon application with notice to all
8 parties and after a hearing, the court may modify the terms of an existing
9 protection order. In any situation where an order is terminated or modified
10 before its expiration date, the clerk of the court shall forward on or before
11 the next judicial day a true copy of the modified order or the termination
12 order to the appropriate law enforcement agency specified in the modification
13 or termination order. Upon receipt of the order, the law enforcement agency
14 shall promptly enter it in the Idaho law enforcement telecommunications sys-
15 tem.
16 16-209. PEACE OFFICERS AND SCHOOL EMPLOYEES -- IMMUNITY. No peace officer
17 or school employee may be held criminally or civilly liable for actions or
18 omissions in the performance of the duties of his or her office under this
19 chapter if the peace officer or school employee is not a respondent to the
20 order and acts in good faith and without malice.
STATEMENT OF PURPOSE
RS 11998
This legislation creates a parent’s protection order for their
children which will involve a process similar to domestic
violence orders. The primary objective is to give parents a tool
to combat the influence that gangs sometimes gain over children.
FISCAL IMPACT
There will be an indeterminate impact from increased caseloads in
the courts.
Contact
Name: Representative Bill Sali
Phone: 332-1000
STATEMENT OF PURPOSE/FISCAL NOTE H 626