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S1308................................................by JUDICIARY AND RULES DOMESTIC VIOLENCE - Amends and adds to existing law to provide for the uniform enforcement of domestic violence protection orders. 01/21 Senate intro - 1st rdg - to printing 01/22 Rpt prt - to Jud 01/31 Rpt out - rec d/p - to 2nd rdg 02/01 2nd rdg - to 3rd rdg 02/07 3rd rdg - PASSED - 32-0-3 AYES -- Andreason, Boatright, Branch(Bartlett), Bunderson, Burtenshaw, Cameron, Davis, Deide, Dunklin, Frasure, Geddes, Goedde, Hill, Ingram, Ipsen, Keough, King-Barrutia, Little, Lodge, Marley, Noh, Richardson, Risch, Sandy, Schroeder, Sims, Sorensen, Stegner, Stennett, Thorne(Thorne), Wheeler, Williams NAYS -- None Absent and excused -- Brandt, Darrington, Hawkins Floor Sponsor - King-Barrutia Title apvd - to House 02/08 House intro - 1st rdg - to Jud 03/12 Rpt out - rec d/p - to 2nd rdg 03/13 2nd rdg - to 3rd rdg Rls susp - PASSED - 64-0-6 AYES -- Aikele, Barraclough, Barrett, Bedke, Bell, Bieter, Black, Block, Boe, Bolz, Bradford, Callister, Campbell, Clark, Collins, Crow, Deal, Denney, Ellis, Ellsworth, Eskridge, Field(13), Field(20), Gagner, Gould, Hadley, Hammond, Harwood, Henbest Higgins, Hornbeck, Jaquet, Jones, Kendell, Kunz, Lake, Langford, Loertscher, Mader, Martinez, McKague, Meyer, Montgomery, Pearce, Pischner, Pomeroy, Raybould, Ridinger, Roberts, Robison, Sali, Schaefer, Sellman, Smith(33), Smith(23), Smylie, Stevenson, Stone, Tilman, Trail, Wheeler, Wood, Young, Mr. Speaker NAYS -- None Absent and excused -- Bruneel, Cuddy, Kellogg, Mortensen, Moyle, Shepherd Floor Sponsor - Hornbeck Title apvd - to Senate 03/13 To enrol 03/14 Rpt enrol - Pres signed - Sp signed 03/15 To Governor 03/22 Governor signed Session Law Chapter 213 Effective: 07/01/02
|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-sixth Legislature Second Regular Session - 2002IN THE SENATE SENATE BILL NO. 1308 BY JUDICIARY AND RULES COMMITTEE 1 AN ACT 2 RELATING TO INTERSTATE ENFORCEMENT OF DOMESTIC VIOLENCE PROTECTION ORDERS; 3 AMENDING SECTION 39-6303, IDAHO CODE, TO DEFINE TERMS; REPEALING SECTION 4 39-6306A, IDAHO CODE; AMENDING CHAPTER 63, TITLE 39, IDAHO CODE, BY THE 5 ADDITION OF A NEW SECTION 39-6306A, IDAHO CODE, TO PROVIDE A SHORT TITLE, 6 TO DEFINE TERMS, TO PROVIDE FOR JUDICIAL ENFORCEMENT OF FOREIGN PROTECTION 7 ORDERS, TO PROVIDE FOR NONJUDICIAL ENFORCEMENT OF FOREIGN PROTECTION 8 ORDERS, TO PROVIDE FOR REGISTRATION OF FOREIGN PROTECTION ORDERS, TO PRO- 9 VIDE FOR IMMUNITY, TO PROVIDE FOR UNIFORMITY OF APPLICATION AND CONSTRUC- 10 TION AND TO SET FORTH A TRANSITIONAL PROVISION; AMENDING SECTIONS 39-6309, 11 39-6310 AND 39-6311, IDAHO CODE, TO PROVIDE CORRECT TERMINOLOGY. 12 Be It Enacted by the Legislature of the State of Idaho: 13 SECTION 1. That Section 39-6303, Idaho Code, be, and the same is hereby 14 amended to read as follows: 15 39-6303. DEFINITIONS. (1) "Domestic violence" means the physical injury, 16 sexual abuse or forced imprisonment or threat thereof of a family or household 17 member, or of a minor child by a person with whom the minor child has had or 18 is having a dating relationship. 19 (2) "Dating relationship," for the purposes of this chapter, is defined 20 as a social relationship of a romantic nature. Factors that the court may con- 21 sider in making this determination include: 22 (a) The nature of the relationship; 23 (b) The length of time the relationship has existed; 24 (c) The frequency of interaction between the parties; and 25 (d) The time since termination of the relationship, if applicable. 26 (3) "Family or household member" means spouses, former spouses, persons 27 related by blood or marriage, persons who reside or have resided together, and 28 persons who have a child in common regardless of whether they have been mar- 29 ried or have lived together at any time. 30 (4) "Family dwelling" is any premises in which the petitioner resides. 31 (5) "Foreign protection order" means a protection order issued by a tri- 32 bunal of another state. 33 (6) "Judicial day" means any day upon which court business may be trans- 34 acted as provided in sections 1-1606 and 1-1607, Idaho Code. 35 (67) "Protection order" means any order issued for the purpose of pre- 36 venting violent or threatening acts or acts of harassment against, or contact 37 or communication with, or physical proximity to, another person, where the 38 order was issued: 39 (a) Pursuant to this chapter; 40 (b) In another jurisdiction pursuant to a provision similar to section 41 39-6306, Idaho Code; or 42 (c) In any criminal or civil action, as a temporary or final order (other 43 than a support or child custody order), and where the order was issued in 2 1 a response to a criminal complaint, petition or motion filed by or on 2 behalf of a person seeking protection, and issued after giving notice and 3 an opportunity to respond to the person being restrained. 4 (8) "Respondent" means the individual against whom enforcement of a pro- 5 tection order is sought. 6 SECTION 2. That Section 39-6306A, Idaho Code, be, and the same is hereby 7 repealed. 8 SECTION 3. That Chapter 63, Title 39, Idaho Code, be, and the same is 9 hereby amended by the addition thereto of a NEW SECTION, to be known and des- 10 ignated as Section 39-6306A, Idaho Code, and to read as follows: 11 39-6306A. UNIFORM INTERSTATE ENFORCEMENT OF DOMESTIC VIOLENCE PROTECTION 12 ORDERS ACT. (1) Short Title. This section may be cited as the "Uniform Inter- 13 state Enforcement of Domestic Violence Protection Orders Act." 14 (2) Definitions. As used in this section: 15 (a) "Issuing state" means the state whose tribunal issues a protection 16 order. 17 (b) "Mutual foreign protection order" means a foreign protection order 18 that includes provisions in favor of both the protected individual seeking 19 enforcement of the order and the respondent. 20 (c) "Protected individual" means an individual protected by a protection 21 order. 22 (d) "State" means a state of the United States, the District of Columbia, 23 Puerto Rico, the United States Virgin Islands or any territory or insular 24 possession subject to the jurisdiction of the United States. The term 25 includes an Indian tribe or band that has jurisdiction to issue protection 26 orders. 27 (e) "Tribunal" means a court, agency, or other entity authorized by law 28 to issue or modify a protection order. 29 (3) Judicial Enforcement of Order. 30 (a) A person authorized by the law of this state to seek enforcement of a 31 protection order may seek enforcement of a valid foreign protection order 32 in a tribunal of this state. The tribunal shall enforce the terms of the 33 order, including terms that provide relief that a tribunal of this state 34 would lack power to provide but for this section. The tribunal shall 35 enforce the order, whether the order was obtained by independent action or 36 in another proceeding, if it is an order issued in response to a com- 37 plaint, petition or motion filed by or on behalf of an individual seeking 38 protection. In a proceeding to enforce a foreign protection order, the 39 tribunal shall follow the procedures of this state for the enforcement of 40 protection orders. 41 (b) A tribunal of this state may not enforce a foreign protection order 42 issued by a tribunal of a state that does not recognize the standing of a 43 protected individual to seek enforcement of the order. 44 (c) A tribunal of this state shall enforce the provisions of a valid for- 45 eign protection order which govern custody and visitation if the order was 46 issued in accordance with the jurisdictional requirements governing the 47 issuance of custody and visitation orders in the issuing state. 48 (d) A tribunal of this state may not enforce under this section a provi- 49 sion of a foreign protection order with respect to support. 50 (e) A foreign protection order is valid if it: 51 (i) Identifies the protected individual and the respondent; 52 (ii) Is currently in effect; 3 1 (iii) Was issued by a tribunal that had jurisdiction over the parties 2 and subject matter under the law of the issuing state; and 3 (iv) Was issued after the respondent was given reasonable notice and 4 had an opportunity to be heard before the tribunal issued the order 5 or, in the case of an order ex parte, the respondent was given notice 6 and had an opportunity to be heard within a reasonable time after the 7 order was issued, consistent with the rights of the respondent to due 8 process. 9 (f) A foreign protection order valid on its face is prima facie evidence 10 of its validity. 11 (g) Absence of any of the criteria for validity of a foreign protection 12 order is an affirmative defense in an action seeking enforcement of the 13 order. 14 (h) A tribunal of this state may enforce provisions of a mutual foreign 15 protection order which favor a respondent only if: 16 (i) The respondent filed a written pleading seeking a protection 17 order from the tribunal of the issuing state; and 18 (ii) The tribunal of the issuing state made specific findings in 19 favor of the respondent. 20 (4) Nonjudicial Enforcement of Order. 21 (a) A law enforcement officer of this state, upon determining that there 22 is probable cause to believe that a valid foreign protection order exists 23 and that the order has been violated, shall enforce the order as if it 24 were the order of a tribunal of this state. Presentation of a foreign pro- 25 tection order that identifies both the protected individual and the 26 respondent and, on its face, is currently in effect constitutes probable 27 cause to believe that a valid foreign protection order exists. For the 28 purposes of this subsection, the foreign protection order may be inscribed 29 on a tangible medium or may have been stored in an electronic or other 30 medium if it is retrievable in perceivable form. Presentation of a certi- 31 fied copy of a foreign protection order is not required for enforcement. 32 (b) If a foreign protection order is not presented, a law enforcement 33 officer of this state may consider other information in determining 34 whether there is probable cause to believe that a valid foreign protection 35 order exists. 36 (c) If a law enforcement officer of this state determines that an other- 37 wise valid foreign protection order cannot be enforced because the 38 respondent has not been notified or served with the order, the officer 39 shall inform the respondent of the order, make a reasonable effort to 40 serve the order upon the respondent, and allow the respondent a reasonable 41 opportunity to comply with the order before enforcing the order. 42 (d) Registration or filing of an order in this state is not required for 43 the enforcement of a valid foreign protection order pursuant to this sec- 44 tion. 45 (5) Registration of Order. 46 (a) Any individual may register a foreign protection order in this state 47 pursuant to section 39-6311, Idaho Code. To register a foreign protection 48 order, an individual shall present a copy of a protection order which has 49 been certified by the issuing state to a court of this state in order to 50 be entered in the Idaho law enforcement telecommunications system pursuant 51 to section 39-6311, Idaho Code. 52 (b) An individual registering a foreign protection order shall file with 53 the court an affidavit by the protected individual stating that, to the 54 best of the protected individual's knowledge, the order is currently in 55 effect. 4 1 (c) A fee may not be charged for the registration of a foreign protection 2 order. 3 (d) A foreign protection order registered under this section may be 4 entered in any existing state or federal registry of protection orders, in 5 accordance with applicable law. 6 (6) Immunity. This state or a local governmental agency, or a law 7 enforcement officer, prosecuting attorney, clerk of court, or any state or 8 local governmental official acting in an official capacity, is immune from 9 civil and criminal liability for an act or omission arising out of the regis- 10 tration or enforcement of a foreign protection order or the detention or 11 arrest of an alleged violator of a foreign protection order if the act or 12 omission was done in good faith in an effort to comply with this section. 13 (7) Uniformity of Application and Construction. In applying and constru- 14 ing this section, consideration shall be given to the need to promote uniform- 15 ity of the law with respect to its subject matter among states that enact it. 16 (8) Transitional Provision. This section applies to foreign protection 17 orders issued before July 1, 2002, and to continuing actions for enforcement 18 of foreign protection orders commenced before July 1, 2002. A request for 19 enforcement of a foreign protection order made on or after July 1, 2002, for 20 violations of a foreign protection order occurring before that date is gov- 21 erned by this section. 22 SECTION 4. That Section 39-6309, Idaho Code, be, and the same is hereby 23 amended to read as follows: 24 39-6309. ISSUANCE OF ORDER -- ASSISTANCE OF PEACE OFFICER -- DESIGNATION 25 OF APPROPRIATE LAW ENFORCEMENT AGENCY. When an order is issued orafforded26full faith and credita foreign protection order is recognized under this 27 chapter upon request of the petitioner, the court may order a peace officer to 28 accompany the petitioner and assist in placing the petitioner in possession of 29 the dwelling or residence, or otherwise assist in the execution of the protec- 30 tion order. A certified copy of the order shall be prepared by the clerk for 31 transmittal to the appropriate law enforcement agency as specified in section 32 39-6311, Idaho Code. Orders issued orafforded full faith and creditforeign 33 protection orders recognized under this chapter shall include an instruction 34 to the appropriate law enforcement agency to execute, serve, or enforce the 35 order. 36 SECTION 5. That Section 39-6310, Idaho Code, be, and the same is hereby 37 amended to read as follows: 38 39-6310. ORDER AND SERVICE. (1) An order issued under this chapter along 39 with a copy of the petition for a protection order, if the respondent has not 40 previously received the petition, shall be personally served upon the respond- 41 ent, except as provided in subsections (6), (7) and (8) of this section. 42 (2) A peace officer of the jurisdiction in which the respondent resides 43 shall serve the respondent personally unless the petitioner elects to have the 44 respondent served by a private party at the petitioner's own expense. 45 (3) If service by a peace officer is to be used, the clerk of the court 46 shall have a copy of any order issued under this chapter and a copy of the 47 petition for a protection order, if the respondent has not previously received 48 the petition, forwarded on or before the next judicial day to the appropriate 49 law enforcement agency specified in the order for service upon the respondent. 50 Service of an order issued under this chapter shall take precedence over the 51 service of other documents unless they are of a similar emergency nature. 5 1 (4) If the peace officer cannot complete service upon the respondent 2 within ten (10) days, the sheriff or municipal peace officer shall notify the 3 petitioner. The petitioner shall provide information sufficient to permit 4 notification. 5 (5) Returns of service under this chapter shall be made in accordance 6 with the applicable court rules. 7 (6) If an order entered by the court recites that the respondent appeared 8 in person before the court and receives a copy of the order, the necessity for 9 further service is waived and proof of service of that order is not necessary. 10 (7) If a party has appeared in person before the court and has waived 11 personal service, the clerk of the court shall complete service of any notice 12 of hearing or orders or modifications by certified mail to the party's address 13 as shown on the court petition which resulted in the issuance of the order or 14 modification. Parties shall at all times keep the court informed of their cur- 15 rent mailing address. 16 (8) If an out-of-stateforeign protection order is registered with the 17 court under section 39-6306A, Idaho Code, the necessity for further service is 18 waived and proof of service of that order is not necessary. 19 SECTION 6. That Section 39-6311, Idaho Code, be, and the same is hereby 20 amended to read as follows: 21 39-6311. ORDER -- TRANSMITTAL TO LAW ENFORCEMENT AGENCY -- RECORD IN 22 IDAHO LAW ENFORCEMENT TELECOMMUNICATIONS SYSTEM -- ENFORCEABILITY. (1) The 23 orders issued under sections 39-6306 and 39-6308, Idaho Code, orout-of-state24 foreign protection ordersafforded full faith and creditrecognized under sec- 25 tion 39-6306A, Idaho Code, shall be in a form approved by the supreme court of 26 the state of Idaho. 27 (2) (a) A copy of a protection order granted orafforded full faith and28credita foreign protection order recognized under this chapter shall be 29 forwarded by the clerk of the court on or before the next judicial day to 30 the appropriate law enforcement agency specified in the order. 31 (b) Upon receipt of the order, the law enforcement agency shall forthwith 32 enter the order and its expiration date into the Idaho law enforcement 33 telecommunications system available in this state used by law enforcement 34 agencies to list outstanding warrants. Notification of service as required 35 in section 39-6310, Idaho Code, shall also be entered into the Idaho law 36 enforcement telecommunications system upon receipt. Entry into the Idaho 37 law enforcement telecommunications system constitutes notice to all law 38 enforcement agencies of the existence of the order. The order is fully 39 enforceable in any county in the state. Renewals of the order shall be 40 recorded in the same manner as original orders. The information entered 41 shall specifically state that the protection order is civil in nature. If 42 the appropriate law enforcement agency determines that the service infor- 43 mation sheet is incomplete or cannot be entered into the Idaho law 44 enforcement telecommunications system upon receipt, the service informa- 45 tion sheet shall be returned to the clerk of the court. The clerk of the 46 court shall then notify the petitioner of the error or omission. 47 (3) Law enforcement agencies shall establish procedures reasonably ade- 48 quate to assure that an officer approaching or actually at the scene of an 49 incident of domestic violence may be informed of the existence and terms of 50 such protection order. 51 (4) A protection order shall remain in effect for the term set by the 52 court or until terminated by the court. A protection order may, upon motion 53 and upon good cause shown, be renewed for additional terms not to exceed one 6 1 (1) year each if the requirements of this chapter are met. The motion to renew 2 an order may be granted without a hearing, if not timely objected to by the 3 party against whom the order was entered. If the petitioner voluntarily and 4 without duress consents to the waiver of any portion of the protection order 5 vis-a-vis the respondent pursuant to section 39-6313, Idaho Code, the order 6 may be modified by the court.
STATEMENT OF PURPOSE RS 11664 This act establishes uniform procedures that will enable courts to recognize and enforce valid domestic protection orders issued in other jurisdictions. Uniformity will enable courts around the country to treat such cases consistently, thereby better serving the needs of victims of domestic violence. FISCAL IMPACT None. Contact Name: Dale G. Higer Agency: Commission on Uniform State Laws Phone: 387-4288 STATEMENT OF PURPOSE/FISCAL NOTE S 1308