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.
If the court permits service by publication, the court shall set the hearing
date not later than twenty-four days from the date of the order. The court may
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
action, 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, and 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, the court may either (a) grant relief for a fixed period not to
exceed one year; (b) grant relief for a fixed period in excess of one year; or
(c) enter a permanent order of protection.
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 an order for a fixed time period, the petitioner may apply for
renewal of the order by filing a petition for renewal at any time within the
three months before the 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 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. If the court permits service by publication, the court
shall set the new hearing date not later than twenty-four days from the date of
the order. If the 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 order expires. The court may
renew the protection order for another fixed time period or may enter a
permanent order as provided in this section. The court may award court costs,
service fees, and reasonable attorneys' fees as provided in subsection (1)(f)
of this section.
(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.
(5)
The court order shall specify the date the order expires if any. The court
order shall also state whether the court issued the protection order following
personal service or service by publication and whether the court has approved
service by publication of an order issued under this section.
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 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)) or twenty-four days if the court
has permitted service by publication under section 4 of this act. The ex parte
order 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 or not later than twenty-four days if service by publication is
permitted. 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
twenty-four days from the date of entry of the order and may 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
twenty-four 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 three consecutive weeks. The
newspaper selected must be one of the three most widely circulated papers in
the county. 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 when the publication has been made for three consecutive
weeks. 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
on the date set for the hearing. 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 on the ....... day of ..........., 19...., at
..... a.m./p.m., 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. 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 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 order of
protection issued under RCW 26.50.060. Service by publication must comply with
the requirements of section 4 of this act. The court order must state whether
the court permitted service by publication.
Sec.
7. RCW
26.50.100 and 1984 c 263 s 11 are each amended to read as follows:
(1)
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.
(2)
The information entered into the computer-based system shall include notice to
law enforcement whether the order was personally served or served by
publication.
NEW
SECTION. Sec. 8. A new
section is added to chapter 26.50 RCW to read as follows:
(1)
When the court issues an ex parte order pursuant to RCW 26.50.070 or an order
of protection ordered issued pursuant to RCW 26.50.060, the court shall advise
the petitioner that the respondent may not be subjected to the penalties set
forth in RCW 26.50.110 for a violation of the order unless the respondent knows
of the order.
(2)
When a peace officer investigates a report of an alleged violation of an order
for protection issued under this chapter the officer shall attempt to determine
whether the respondent knew of the existence of the protection order. If the
officer determines that the respondent did not or probably did not know about
the protection order, the officer shall make reasonable efforts to obtain a
copy of the protection order and serve it on the respondent during the
investigation.
NEW
SECTION. Sec. 9. A new
section is added to chapter 26.50 RCW to read as follows:
The
court may permit service by publication under this chapter only if the
petitioner pays the cost of publication unless the county legislative authority
allocates funds for service of process by publication for petitioners who are
granted leave to proceed in forma pauperis.
Sec.
10. 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 12 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 12 of this
act. If the court permits service by publication, the court shall set the
hearing date not later than twenty-four days from the date of the order. The
court may issue an ex parte order for protection pending the hearing as
provided in RCW 10.14.080 and section 12 of this act.
Sec.
11. 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 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)) or twenty-four days
if the court has permitted service by publication under section 12 of this
act. The ex parte order 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 or not later than twenty-four days if service by
publication is permitted. Except as provided in RCW 10.14.070 and section
12 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 an order for a fixed time exceeding one year or 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 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 12 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 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 12 of this act. If the
court permits service by publication, the court shall set the new hearing date
not later than twenty-four days from the date of the order. If the 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 order expires. The court may renew the protection order for another fixed
time period 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
(c)
Requiring the respondent to stay a stated distance from the petitioner's
residence and workplace.
(((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.
(8)
The court order shall specify the date an order issued pursuant to subsections (4)
and (5) of this section expires if any. The court order shall also state
whether the court issued the protection order following personal service or
service by publication and whether the court has approved service by
publication of an order issued under this section.
NEW
SECTION. Sec. 12. A new
section is added to chapter 10.14 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
twenty-four days from the date of entry of the order and may 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
twenty-four 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 three consecutive weeks. The
newspaper selected must be one of the three most widely circulated papers in
the county. 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 when the publication has been made for three consecutive
weeks. 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
on the date set for the hearing. 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 on the ....... day of ..........., 19...., at
..... a.m/p.m., 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.
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. 13. A new
section is added to chapter 10.14 RCW to read as follows:
Following
completion of service by publication as provided in section 12 of this act, if
the respondent fails to appear at the hearing, the court may issue an 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.
14. 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 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 action, 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.
Sec.
15. 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.
(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
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 12 of
this act, the court may permit service by publication of the order of
protection issued under RCW 10.14.080. Service by publication must comply with
the requirements of section 12 of this act.
Sec.
16. RCW
10.14.110 and 1987 c 280 s 11 are each amended to read as follows:
(1)
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.
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.
(2)
The information entered into the computer-based system shall include notice to
law enforcement whether the order was personally served or served by
publication.
NEW
SECTION. Sec. 17. A new
section is added to chapter 10.14 RCW to read as follows:
(1)
When the court issues an order of protection pursuant to RCW 10.14.080, the
court shall advise the petitioner that the respondent may not be subjected to
the penalties set forth in RCW 10.14.120 and 10.14.170 for a violation of the
order unless the respondent knows of the order.
(2)
When a peace officer investigates a report of an alleged violation of an order
for protection issued under this chapter the officer shall attempt to determine
whether the respondent knew of the existence of the protection order. If the
officer determines that the respondent did not or probably did not know about
the protection order, the officer shall make reasonable efforts to obtain a
copy of the protection order and serve it on the respondent during the
investigation.
NEW
SECTION. Sec. 18. A new
section is added to chapter 10.14 RCW to read as follows:
The
court may permit service by publication under this chapter only if the
petitioner pays the cost of publication unless the county legislative authority
allocates funds for service of process by publication for petitioners who are
granted leave to proceed in forma pauperis.
