H-3816

AN ACT Relating to court orders for protection; amending RCW 26.50.050, 26.50.060, 26.50.070, 26.50.090, 26.50.100, 10.14.070, 10.14.080, 10.14.090, 10.14.100, and 10.14.110; adding new sections to chapter 26.50 RCW; and adding new sections to chapter 10.14 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 26.50.050 and 1984 c 263 s 6 are each amended to read as follows:

Upon receipt of the petition, the court shall order a hearing which shall be held not later than fourteen days from the date of the order. Except as provided in section 4 of this act, personal service shall be made upon the respondent not less than five court days prior to the hearing. If timely personal service cannot be made, the court ((~~may~~)) shall set a new hearing date and shall either require additional attempts at obtaining personal service or permit service by publication as provided in section 4 of this act. The court shall issue an ex parte order for protection pending the hearing as provided in RCW 26.50.070 and section 4 of this act.

Sec. 2. RCW 26.50.060 and 1989 c 411 s 1 are each amended to read as follows:

(1) Upon notice and after hearing, the court may provide relief as follows:

(a) Restrain a party from committing acts of domestic violence;

(b) Exclude the respondent from the dwelling which the parties share or from the residence of the petitioner;

(c) On the same basis as is provided in chapter 26.09 RCW, the court shall make residential provision with regard to minor children of the parties. However, parenting plans as specified in chapter 26.09 RCW shall not be required under this chapter;

(d) Order the respondent to participate in treatment or counseling services;

(e) Order other relief as it deems necessary for the protection of a family or household member, including orders or directives to a peace officer, as allowed under this chapter;

(f) Require the respondent to pay the filing fee and court costs, including service fees, and to reimburse the petitioner for costs incurred in bringing the original action or an uncontested action for renewal of the protection order, including a reasonable attorney's fee. If the petitioner has been granted leave to proceed in forma pauperis, the court may require the respondent to pay the filing fee and costs, including services fees, to the county or municipality incurring the expense; and

(g) Restrain any party from having any contact with the victim of domestic violence or the victim's children or members of the victim's household.

(2) Any relief granted by the order for protection, other than a judgment for costs, shall be for a fixed period not to exceed one year if the restraining order restrains the respondent from contacting the respondent's minor children. If the petitioner has petitioned for relief on his or her own behalf or on behalf of the petitioner's family or household members or minor children that are not also the respondent's minor children, the court may either (a) grant relief for a fixed period not to exceed one year; or (b) enter a permanent order of protection, if the court finds that the respondent is likely to resume acts of domestic violence against the petitioner or the petitioner's family or household members or minor children when the order expires.

If the petitioner has petitioned for relief on behalf of the respondent's minor children, the court shall advise the petitioner that if the petitioner wants to continue protection for a period beyond one year the petitioner may either petition for renewal pursuant to the provisions of this chapter or may seek relief pursuant to the provisions of chapter 26.09 RCW.

(3) If the court grants a one year order, the petitioner may apply for renewal of the order by filing a petition for renewal at any time within the three months before the one year order expires. The petition for renewal shall state the reasons why the petitioner seeks to renew the protection order. Upon receipt of the petition for renewal the court shall order a hearing which shall be not later than fourteen days from the date of the order. Except as provided in section 4 of this act, personal service shall be made on the respondent not less than five days before the hearing. If timely service cannot be made the court may set a new hearing date and shall either require additional attempts at obtaining personal service or permit service by publication as provided in section 4 of this act. If the one year order expires because timely service cannot be made the court shall grant an ex parte order of protection as provided in RCW 26.50.070. The court shall grant the petition for renewal unless the respondent proves by a preponderance of the evidence that the respondent will not resume acts of domestic violence against the petitioner or the petitioner's children or family or household members when the one year order expires. The court shall renew the protection order for another year or may enter a permanent order as provided in this section. The court shall award court costs, service fees, and reasonable attorneys' fees to the prevailing petitioner if the respondent contests the petition for renewal.

(4) In providing relief under this chapter, the court may realign the designation of the parties as "petitioner" and "respondent" where the court finds that the original petitioner is the abuser and the original respondent is the victim of domestic violence.

Sec. 3. RCW 26.50.070 and 1989 c 411 s 2 are each amended to read as follows:

(1) Where an application under this section alleges that irreparable injury could result from domestic violence if an order is not issued immediately without prior notice to the respondent, the court ((~~may~~)) shall grant an ex parte temporary order for protection, pending a full hearing, and grant relief as the court deems proper, including an order:

(a) Restraining any party from committing acts of domestic violence;

(b) Excluding any party from the dwelling shared or from the residence of the other until further order of the court;

(c) Restraining any party from interfering with the other's custody of the minor children or from removing the children from the jurisdiction of the court; and

(d) Restraining any party from having any contact with the victim of domestic violence or the victim's children or members of the victim's household.

(2) Irreparable injury under this section includes but is not limited to situations in which the respondent has recently threatened petitioner with bodily injury or has engaged in acts of domestic violence against the petitioner.

(3) The court shall hold an ex parte hearing in person or by telephone on the day the petition is filed or on the following judicial day.

(4) An ex parte temporary order for protection shall be effective for a fixed period not to exceed fourteen days, but may be reissued. A full hearing, as provided in this chapter, shall be set for not later than fourteen days from the issuance of the temporary order. Except as provided in RCW 26.50.050 and section 4 of this act, the respondent shall be personally served with a copy of the ex parte order along with a copy of the petition and notice of the date set for the hearing.

NEW SECTION. Sec. 4. A new section is added to chapter 26.50 RCW to read as follows:

(1) If the respondent was not personally served with the petition, notice of hearing, and ex parte order before the hearing, the court shall reset the hearing for fourteen days from the date of entry of the order and order service by publication instead of personal service under the following circumstances:

(a) The sheriff or municipal officer files an affidavit stating that the officer was unable to complete personal service upon the respondent. The affidavit must describe the number and types of attempts the officer made to complete service;

(b) The petitioner files an affidavit stating that the petitioner believes that the respondent is hiding from the server to avoid service. The petitioner's affidavit must state the reasons for the belief that the petitioner is avoiding service;

(c) The server has deposited a copy of the summons, in substantially the form prescribed in subsection (3) of this section, notice of hearing, and the ex parte order of protection in the post office, directed to the respondent at the respondent's last known address, unless the server states that the server does not know the respondent's address; and

(d) The court finds reasonable grounds exist to believe that the respondent is concealing himself or herself to avoid service, and that further attempts to personally serve the respondent would be futile or unduly burdensome.

(2) The court shall reissue the temporary order of protection not to exceed another fourteen days from the date of reissuing the ex parte protection order and order to provide service by publication.

(3) The publication shall be made in a newspaper of general circulation in the county where the petition was brought and in the county of the last known address of the respondent once a week for two consecutive weeks. The publication of summons shall not be made until the court orders service by publication under this section. Service of the summons shall be considered complete at the expiration of the fourteen days. The summons must be signed by the petitioner. The summons shall contain the date of the first publication, and shall require the respondent upon whom service by publication is desired, to appear and answer the petition within fourteen days from the date of the first publication of the summons. The summons shall also contain a brief statement of the reason for the petition and a summary of the provisions under the ex parte order. The summons shall be essentially in the following form:

In the ............... court of the state of Washington for the county of ....................

............................., Petitioner

vs. No. .............

............................., Respondent

The state of Washington to ..................... (respondent):

You are hereby summoned to appear within fourteen days after the date of the first publication of this summons, that is, within fourteen days after the ....... day of ..........., 19...., and respond to the petition. If you fail to respond, an order of protection will be issued against you pursuant to the provisions of the domestic violence protection act, chapter 26.50 RCW, for a minimum of one year from the date you are required to appear. The court may issue a permanent restraining order against you as provided in RCW 26.50.060. A temporary order of protection has been issued against you, restraining you from the following: (Insert a brief statement of the provisions of the ex parte order). A copy of the petition, notice of hearing, and ex parte order has been filed with the clerk of this court.

...................................

Petitioner ........................

NEW SECTION. Sec. 5. A new section is added to chapter 26.50 RCW to read as follows:

Following completion of service by publication as provided in section 4 of this act, if the respondent fails to appear at the hearing, the court may issue an order of protection for a period of one year from the date of the hearing or may issue a permanent order of protection as provided in RCW 26.50.060. That order must be served pursuant to RCW 26.50.090, and forwarded to the appropriate law enforcement agency pursuant to RCW 26.50.100.

Sec. 6. RCW 26.50.090 and 1985 c 303 s 6 are each amended to read as follows:

(1) An order issued under this chapter shall be personally served upon the respondent, except as provided in subsections (6) and (8) of this section.

(2) The sheriff of the county or the peace officers of the municipality in which the respondent resides shall serve the respondent personally unless the petitioner elects to have the respondent served by a private party.

(3) If service by a sheriff or municipal peace officer is to be used, the clerk of the court shall have a copy of any order issued under this chapter forwarded on or before the next judicial day to the appropriate law enforcement agency specified in the order for service upon the respondent. Service of an order issued under this chapter shall take precedence over the service of other documents unless they are of a similar emergency nature.

(4) If the sheriff or municipal peace officer cannot complete service upon the respondent within ten days, the sheriff or municipal peace officer shall notify the petitioner. The petitioner shall provide information sufficient to permit notification.

(5) Returns of service under this chapter shall be made in accordance with the applicable court rules.

(6) If an order entered by the court recites that the respondent appeared in person before the court, the necessity for further service is waived and proof of service of that order is not necessary.

(7) Except in cases where the petitioner is granted leave to proceed in forma pauperis, municipal police departments serving documents as required under this chapter may collect the same fees for service and mileage authorized by RCW 36.18.040 to be collected by sheriffs.

(8) If the court previously entered an order allowing service by publication of the notice of hearing and temporary order of protection pursuant to section 4 of this act, the court may permit service by publication of the one year or permanent order of protection according to the requirements of section 4 of this act.

Sec. 7. RCW 26.50.100 and 1984 c 263 s 11 are each amended to read as follows:

A copy of an order for protection granted under this chapter shall be forwarded by the clerk of the court on or before the next judicial day to the appropriate law enforcement agency specified in the order.

Upon receipt of the order, the law enforcement agency shall forthwith enter the order ((~~for one year~~)) into any computer-based criminal intelligence information system available in this state used by law enforcement agencies to list outstanding warrants. The law enforcement agency shall expunge expired orders from the computer system. Entry into the law enforcement information system constitutes notice to all law enforcement agencies of the existence of the order. The order is fully enforceable in any county in the state.

Sec. 8. RCW 10.14.070 and 1987 c 280 s 7 are each amended to read as follows:

Upon receipt of the petition, the court shall order a hearing which shall be held not later than fourteen days from the date of the order. Except as provided in section 10 of this act, personal service shall be made upon the respondent not less than five court days before the hearing. If timely personal service cannot be made, the court ((~~may~~)) shall set a new hearing date and shall either require additional attempts at obtaining personal service or permit service by publication as provided by section 10 of this act. The court shall issue an ex parte order for protection pending the hearing as provided in RCW 10.14.080 and section 10 of this act.

Sec. 9. RCW 10.14.080 and 1987 c 280 s 8 are each amended to read as follows:

(1) Upon filing a petition for a civil antiharassment protection order under this chapter, the petitioner may obtain an ex parte temporary antiharassment protection order. An ex parte temporary antiharassment protection order ((~~may~~)) shall be granted with or without notice upon the filing of an affidavit which, to the satisfaction of the court, shows reasonable proof of unlawful harassment of the petitioner by the respondent and that great or irreparable harm will result to the petitioner if the temporary antiharassment protection order is not granted.

(2) An ex parte temporary antiharassment protection order shall be effective for a fixed period not to exceed fourteen days, but may be reissued. A full hearing, as provided in this chapter, shall be set for not later than fourteen days from the issuance of the temporary order. Except as provided in RCW 10.14.070 and section 10 of this act, the respondent shall be personally served with a copy of the ex parte order along with a copy of the petition and notice of the date set for the hearing.

(3) At the hearing, if the court finds by a preponderance of the evidence that unlawful harassment exists, a civil antiharassment protection order shall issue prohibiting such unlawful harassment.

(4) An order issued under this chapter shall be effective for not more than one year unless the court finds that the respondent is likely to resume unlawful harassment of the petitioner when the order expires. If so, the court may enter a permanent antiharassment protection order. The court shall not enter an order that is effective for more than one year if the order restrains the respondent from contacting the respondent's minor children. If the petitioner seeks relief for a period longer than one year on behalf of the respondent's minor children, the court shall advise the petitioner that the petitioner may apply for renewal of the order as provided in this chapter or if appropriate may seek relief pursuant to chapter 26.09 or 26.10 RCW.

(5) At any time within the three months before the expiration of the one year order, the petitioner may apply for a renewal of the order by filing a ((~~new~~)) petition ((~~under this chapter~~)) for renewal. The petition for renewal shall state the reasons why the petitioner seeks to renew the protection order. Upon receipt of the petition for renewal, the court shall order a hearing which shall be not later than fourteen days from the date of the order. Except as provided in section 10 of this act, personal service shall be made upon the respondent not less than five days before the hearing. If timely service cannot be made the court may set a new hearing date and shall either require additional attempts at obtaining personal service or permit service by publication as provided by section 10 of this act. If the one year order expires because timely service cannot be made the court shall grant an ex parte order of protection as provided in this section. The court shall grant the petition for renewal unless the respondent proves by a preponderance of the evidence that the respondent will not resume harassment of the petitioner when the one year order expires. The court shall renew the protection order for another year or may enter a permanent order as provided in subsection (4) of this section.

((~~(4)~~)) (6) The court, in granting an ex parte temporary antiharassment protection order or a civil antiharassment protection order, shall have broad discretion to grant such relief as the court deems proper, including an order:

(a) Restraining the respondent from making any attempts to contact the petitioner;

(b) Restraining the respondent from making any attempts to keep the petitioner under surveillance; and

((~~(5)~~)) (7) A petitioner may not obtain an ex parte temporary antiharassment protection order against a respondent if the petitioner has previously obtained two such ex parte orders against the same respondent but has failed to obtain the issuance of a civil antiharassment protection order unless good cause for such failure can be shown.

NEW SECTION. Sec. 10. A new section is added to chapter 10.14 RCW to read as follows:

(2) The court shall reissue the temporary order of protection not to exceed another fourteen days from the date of reissuing the ex parte protection order and order to provide service by publication.

In the ............... court of the state of Washington for the county of ....................

............................., Petitioner

vs. No. .............

............................., Respondent

The state of Washington to ..................... (respondent):

You are hereby summoned to appear within fourteen days after the date of the first publication of this summons, that is, within fourteen days after the ....... day of ..........., 19...., and respond to the petition. If you fail to respond, an order of protection will be issued against you pursuant to the provisions of chapter 10.14 RCW, for a minimum of one year from the date you are required to appear. The court may issue a permanent restraining order against you as provided in RCW 10.14.080. A temporary order of protection has been issued against you, restraining you from the following: (Insert a brief statement of the provisions of the ex parte order). A copy of the petition, notice of hearing, and ex parte order has been filed with the clerk of this court.

...................................

Petitioner ........................

NEW SECTION. Sec. 11. A new section is added to chapter 10.14 RCW to read as follows:

Following completion of service by publication as provided in section 10 of this act, if the respondent fails to appear at the hearing, the court may issue an order of protection for a period of one year from the date of the hearing or may issue a permanent order of protection as provided in RCW 10.14.080. That order must be served pursuant to RCW 10.14.100, and forwarded to the appropriate law enforcement agency pursuant to RCW 10.14.110.

Sec. 12. RCW 10.14.090 and 1987 c 280 s 9 are each amended to read as follows:

(1) Nothing in this chapter shall preclude either party from representation by private counsel or from appearing on his or her own behalf.

(2) The court may award court costs, including service fees, and reasonable attorneys' fees to the prevailing petitioner upon granting a permanent order, a one year order, or an uncontested renewal order. The court shall award court costs, service fees, and reasonable attorneys' fees to the prevailing petitioner if the respondent contests the petition for renewal.

Sec. 13. RCW 10.14.100 and 1987 c 280 s 10 are each amended to read as follows:

(1) An order issued under this chapter shall be personally served upon the respondent, except as provided in subsections (5) and (7) of this section.

(3) If the sheriff or municipal peace officer cannot complete service upon the respondent within ten days, the sheriff or municipal peace officer shall notify the petitioner.

(4) Returns of service under this chapter shall be made in accordance with the applicable court rules.

(5) If an order entered by the court recites that the respondent appeared in person before the court, the necessity for further service is waived and proof of service of that order is not necessary.

(6) Except in cases where the petitioner is granted leave to proceed in forma pauperis, municipal police departments serving documents as required under this chapter may collect the same fees for service and mileage authorized by RCW 36.18.040 to be collected by sheriffs.

(7) If the court previously entered an order allowing service by publication of the notice of hearing and temporary order of protection pursuant to section 10 of this act, the court may permit service by publication of the one year or permanent order of protection according to the requirements of section 10 of this act.

Sec. 14. RCW 10.14.110 and 1987 c 280 s 11 are each amended to read as follows:

A copy of an antiharassment protection order granted under this chapter shall be forwarded by the clerk of the court on or before the next judicial day to the appropriate law enforcement agency specified in the order.

NEW SECTION. Sec. 15. A new section is added to chapter 26.50 RCW to read as follows:

As an alternative to the fourteen-day time period for setting hearings on petitions as provided in RCW 26.50.050, 26.50.070, and section 4 of this act, the superior court or district court, by local rule, may adopt a time period of twenty-one days for obtaining personal service and setting hearings.

This section shall expire one year after the effective date of this act.

NEW SECTION. Sec. 16. A new section is added to chapter 10.14 RCW to read as follows:

As an alternative to the fourteen-day time period for setting hearings on petitions as provided in RCW 10.14.070, 10.14.080, and section 10 of this act, the superior court or district court, by local rule, may adopt a time period of twenty-one days for obtaining personal service and setting hearings.

This section shall expire one year after the effective date of this act.