BILL REQ. #:  H-0961.1 

Read first time 01/25/11.   Referred to Committee on Judiciary.

     AN ACT Relating to the termination or modification of domestic violence protection orders; amending RCW 26.50.130; and creating a new section.

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

NEW SECTION.  Sec. 1   The legislature finds that civil domestic violence protection orders are an essential tool for interrupting an abuser's ability to perpetrate domestic violence. The legislature has authorized courts to enter permanent or fixed term domestic violence protection orders if the court finds that the respondent is likely to resume acts of domestic violence when the order expires. However, the legislature has not established procedures or guidelines for terminating or modifying a protection order after it is entered.
     The legislature finds that the Washington supreme court's decision in In re Marriage of Freeman, 169 Wn.2d 664, 239 P.3d 557 (2010), established incorrect standards for terminating or modifying domestic violence protection orders. By this act, the legislature establishes procedures and guidelines for determining whether a domestic violence protection order should be terminated or modified.

Sec. 2   RCW 26.50.130 and 2008 c 287 s 3 are each amended to read as follows:
     (1) Upon ((application)) a motion with notice to all parties and after a hearing, the court may modify the terms of an existing order for protection or may terminate an existing order for protection.
     (2) A respondent's motion to modify or terminate an order for protection that is permanent or issued for a fixed period exceeding two years must include an affidavit setting forth facts supporting the requested order for termination. The motion and affidavit must be served according to subsection (7) of this section. The nonmoving parties to the proceeding may file opposing affidavits. The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits. If the court finds that the respondent established adequate cause, the court shall set a date for hearing the respondent's motion.
     (3)(a) The court may not terminate an order for protection that is permanent or issued for a fixed period exceeding two years upon a motion of the respondent unless the respondent proves by clear and convincing evidence that there has been a substantial change in circumstances such that the respondent is not likely to resume acts of domestic violence against the petitioner or the petitioner's children or family or household members or other persons protected by the protection order if the order is terminated. Upon a motion by the respondent for termination of an order for protection that is permanent or issued for a fixed period exceeding two years:
     (i) The respondent bears the burden of proof; and
     (ii) The petitioner bears no burden of proving that he or she has a current reasonable fear of imminent harm by the respondent.
     (b) For the purposes of this subsection (3), a "substantial change in circumstances" means that the respondent has taken substantial steps to prevent the recurrence of acts of domestic violence against the petitioner or the petitioner's children or family or household members or other persons protected by the protection order. The following factors may not be considered in determining whether there has been a substantial change in circumstances:
     (i) The passage of time since the order was entered;
     (ii) The burden the order places on the respondent; or
     (iii) The relocation of the respondent or the petitioner to a residence that is more distant from the other party.
     (4) The court may not modify an order for protection that is permanent or issued for a fixed period exceeding two years upon a motion of the respondent unless the respondent proves by clear and convincing evidence that the requested modification is warranted and would not substantially diminish the protections provided by the order to the petitioner or the petitioner's children or family or household members or other persons protected by the protection order. Upon a motion by the respondent for modification of an order for protection that is permanent or issued for a fixed period exceeding two years:
     (a) The respondent bears the burden of proof; and
     (b) The petitioner bears no burden of proving that he or she has a current reasonable fear of imminent harm by the respondent.
     (5) Upon a motion by a petitioner, the court may modify or terminate an existing order for protection. The court shall hear the motion without an adequate cause hearing.
     (6) A court may require the respondent to pay the administrative court costs and service fees, as established by the county or municipality incurring the expense and to pay the petitioner for costs incurred in responding to a motion to terminate or modify a protection order, including reasonable attorneys' fees.
     (7) Except as provided in RCW 26.50.085 and 26.50.123, ((personal service shall be made upon)) a motion to modify or terminate an order for protection must be personally served on the nonmoving party not less than five court days prior to the hearing ((to modify)).
     (a) If a moving party seeks to modify or terminate an order for protection that is permanent or issued for a fixed period exceeding two years, the sheriff of the county or the peace officers of the municipality in which the nonmoving party resides shall serve the nonmoving party personally except when a petitioner is the moving party and elects to have the nonmoving party served by a private party.
     (b) If the sheriff or municipal peace officer cannot complete service upon the nonmoving party within ten days, the sheriff or municipal peace officer shall notify the moving party. The moving party shall provide information sufficient to permit notification by the sheriff or municipal peace officer.
     (c) If timely personal service cannot be made, the court shall set a new hearing date and shall either require an additional attempt at obtaining personal service or permit service by publication as provided in RCW 26.50.085 or service by mail as provided in RCW 26.50.123.
     (((b))) (d) The court shall not require more than two attempts at obtaining personal service and shall permit service by publication or by mail unless the moving party requests additional time to attempt personal service.
     (((c))) (e) If the court permits service by publication or by mail, the court shall set the hearing date not later than twenty-four days from the date of the order permitting service by publication or by mail.
     (((3))) (8) Returns of service under this chapter must be made in accordance with the applicable court rules.
     (9) Municipal police departments serving documents as required under this chapter may collect from respondents ordered to pay fees under subsection (6) of this section the same fees for service and mileage authorized by RCW 36.18.040 to be collected by sheriffs.
     (10) In any situation where an order is terminated or modified before its expiration date, the clerk of the court shall forward on or before the next judicial day a true copy of the modified order or the termination order to the appropriate law enforcement agency specified in the modified or termination order. Upon receipt of the order, the law enforcement agency shall promptly enter it in the law enforcement information system.