ALABAMA. Short title; construction; purposes.

Transcription

1 ALABAMA Section Short title; construction; purposes. (a) This chapter shall be known as and may be cited as the "Protection From Abuse Act." (b) This chapter shall be liberally construed and applied to promote all of the following purposes: (1) To assure victims of domestic violence the maximum protection from abuse that the law can provide. (2) To create a flexible and speedy remedy to discou rage violence and harassment against family members or others with whom the perpetrator has continuing contact. (3) To expand the ability of law enforcement officers to assist victims, to enforce the law effectively in cases of domestic violence, and to prevent further incidents of abuse. (4) To facilitate equal enforcement of criminal law by deterring and punishing violence against family members and others who are personally involved with the offender. (5) To recognize that battering is a crime that will not be excused or tolerated. (6) To provide for protection orders to prevent domestic abuse and provide for court jurisdiction and venue; to provide for court hearing for petitions for relief; to provide for the contents and the issuance of protection orders; and to provide penalties for violations of protection orders. (Acts 1981, No , p. 826, 1; Acts 1995, No , p. 1126, 1.) Section Definitions. (a) In this chapter, the following words shall have the following meanings unless the context clearly indicates otherwise: (1) ABUSE. The occurrence of one or more of the following acts, attempts, or threats between family or household members, as defined by this chapter: a. Assault. Assault as defined under Sections 13A-6-20 to 13A-6-22, inclusive. b. Attempt. With the intent to commit any crime under this section or any other criminal act under the laws of this state, performing any overt act towards the commission of the offense. c. Child abuse. Abusing minor children as defined under Chapter 15 (commencing with Section ) of Title 26, known as "The Alabama Child Abuse Act." d. Criminal coercion. Criminal coercion as defined under Section 1 3A e. Ha rassm ent. H arassment as defined under Section 13A f. Kidnapping. Kidnapping as defined under Sections 13A-6-43 and 13A g. Menacing. M enacing as defined under Section 13A h. Other conduct. Any other conduct directed toward a member of the protected cla ss covered by this chapter that could be punished as a criminal act under the laws of this state. i. Reckless endangerment. Reckless endangerment as defined under Section 13A j. Sexual abu se. Any sex offenses inclu ded in Article 4 (commencing with Section 13A-6-60) of Chapter 6 of Title 13A. k. Stalking. Stalking as defined under Sections 13A-6-90 to 13A-6-94, inclusive. l. Theft. Knowingly obtaining or exerting unauthorized control or obtaining control by deception over property owned by or jointly owned by the plaintiff and another. m. Trespass. Entering or remaining in the dwelling or on the premises of another after having been warned not to do so either orally or in writing by the owner of the premises or other authorized person. Alabama -- 1

2 n. Unlawfu l imprisonment. Unla wful imprisonment as defined under Sections 13A and 13A (2) ADULT. Any person 19 years of age or older, or who otherwise is emancipated. (3) COURT. The circuit court, or when the circuit court judge is unavailable, the district court. (4) FAMILY OR HOUSEHOLD MEMBERS. A spouse, former spouse, parent, child, or any other person related within the 6th degree consanguinity or affinity or common-law marriage, a person with whom the plaintiff has a child in common, or a present or former household member. (5) PLAINTIFF. For the purposes of this chapter, the term plaintiff is inclusive of the categories of eligible plaintiffs listed below: a. Any eligible adult who has sought relief under this chapter for himself or herself. b. Any adult relative, household member, guardian, or custodian who seeks relief on behalf of any of the following persons by filing a petition with any court having jurisdiction alleging abuse by the defendant: 1. A minor or minor child. 2. Any person prevented by physical or mental incapacity from seeking a protection order. (6) PROTECTION ORDER. Any order of protection issued under this chapter for the purpose of preventing acts of abuse as defined in this chapter. The term refers to both ex parte and final orders issued by the court, whether obtained by filing an independent a ction or as a pendente lite order in another proceeding. (b) Terms not otherwise defined by this chapter shall have the meaning given to them in Title 13A, (commencing with Section 13A-1-1), known as the Alabama Criminal Code or other provisions of law, as the case may be. (Acts 1981, No , p. 826, 2; Acts 19 95, No , p. 1126, 1.) Section Jurisdiction; how order may be obtained; venue; when final order not issued; residency. (a) The courts, as provided in this chapter, shall have jurisdiction over all proceedings under this chapter. (b) A protection order may be sought in any of the following manners: (1) As an independent civil action, or joined with any other civil action. (2) As part of the preliminary, final, or post judgment relief in any civil action. (3) As part of a criminal action at the request of the prosecuting attorney or at the requ est of the victim as a condition of any the following: a. Pretrial release. b. As part of sentencing or alternative sentencing. c. As part of conditions of probation. (c) A petition for a protection order may be filed in a ny county as follows: (1) Where the plaintiff resides. (2) Where the plaintiff is temporarily located if he or she has left his or her residence to avoid further abuse, provided that no pending civil litigation involving the parties or criminal charges arising from the alleged abuse are before a court in the jurisdiction where the plaintiff resides. If pending civil litigation involving the parties or criminal charges arising from the alleged abuse are before a court in the jurisdiction where the plaintiff resides, then an order for Alabama -- 2

3 protection must be sought where the plaintiff resides. (d) Notwithstanding any provision to the contrary, a court in this state shall not issue a final order under this chapter if at the time of the filing of the petition: (1) a proceeding concerning the subject matter of the petition is pending in another court in this state; or (2) another court in this state has retained jurisdiction over the parties concerning the subject matter of the petition. (e) A minimum period of residency is not required to petition the court for an order of protection. (Acts 1981, No , p. 826, 3; Acts 19 95, No , p. 1126, 1.) Section Remedies and relief; duty to inform court of pending proceedings, litigation, etc.; previous court orders; issuance of orders. (a) The plaintiff's right to relief under this chapter shall not be affected by his or her leaving the residence or household to avoid further abuse. (b) At any hearing in a proceeding to obtain an order for protection, each pa rty has a continuing duty to inform the court of each pending proceeding for an order for protection, any pending civil litigation, each pending proceeding in family or juvenile court, each pending criminal case involving the parties, and any existing child custody or support order, including the case name, the file number, and the county and state of the proceeding, if that information is known to the party. (c) The remedies and procedu res provided in this chapter are in addition to and not in lieu of any other available civil or criminal remedies. Plaintiffs shall not be barred from relief under this chapter because of other pending proceedings or existing judgments. (d) The court shall not delay granting relief because of the existence of a pending action between the parties. (e) Relief shall be available under this chapter without regard to whether the plaintiff has initiated divorce proceedings or sought other legal remedies. (f) If child cu stody, visita tion, or support have already been adjudicated, the terms of a previous court order may be incorporated into a protection order. Visitation arrangements specified in an existing order may be modified in a protection order for the purpose of preventing further abu se. (g) Any protection order issued pursuant to this chapter shall be effective throughout the state and in all counties. (h) Any protection order issued by the court of another state shall be accorded full faith and credit and enforced as if it were an order of this state. (Acts 1981, No , p. 826, 4; Acts 19 95, No , p. 1126, 1.) Section Petitions, motions, etc. - Filing, forms, contents, filing fee. (a) Any plaintiff may seek relief under this chapter for himself or herself, for a minor, or for another person prevented by physical or mental incapacities from seeking a protection order by filing a petition with the court of proper jurisdiction alleging abuse by the defendant. (b) For ms for petiti ons, mot ions, and plea dings shall be a vaila ble t hrough the clerk's office. These forms shall be standard court forms. The clerk shall not be required to provide assistance to persons in completing the forms or in presenting his or her case to the court. Alabama -- 3

4 (c)(1) A court may issue mutual protection orders only if a separate petition has been filed by each party. (2) When mutual protection orders are issued, the content of these orders must be sufficiently specific for any law enforcement officer to be able to determine which party has violated the order, if there is probable cause to believe a violation of an order has occurred. (d) Any eligible plaintiff who files a petition under this chapter, may do so through an attorney or may represent himself or herself pro se throughout the legal process outlined in this chapter, including, but not limited to, the filing of pleadings, motions, and any other legal documents with any court, and the appearance in ex parte and formal court proceedings on his or her behalf. (e)(1) Upon request, the court shall order the omission or deletion of the plaintiff's address, the address of any member of the plaintiff's family or household, or an address that would reveal the confidential location of a shelter for victims of domestic violence as defined in Section That address shall be omitted or deleted from all documents filed with the court, documents made available to the public, and documents made available to the defendant. (2) If disclosure of the plaintiff's address, the address of any member of the pla intiff's family or household, or an address that would reveal the confidential location of a shelter for victims of domestic violence is necessary to determine jurisdiction or to consider a venue issue, it shall be made orally and in camera. (3) If the plaintiff has not disclosed an address under this section the plaintiff shall satisfy one of the following requirements: a. Designate and provide to the court an alternative address. b. Elect to substitute the address of his or her attorney of record in place of the address of the plaintiff on any form, motion, or pleading. (f) For purposes of determining if the plaintiff has adequate funds available to pay the filing fee the following criteria shall apply: (1) Receiving Aid to Families with Dependent Children payments, food stamps, or Supplemental Security Income shall serve as prima facie evidence demonstrating substantial hardship on the part of the plaintiff. (2) The income of the defendant, who may be a household or family member, shall not be considered. (Acts 1981, No , p. 826, 5; Acts 19 95, No , p. 1126, 1.) Section Hearing on petition; right to counsel; temporary orders. (a) Within 14 days of the filing of a petition under this chapter a hearing shall be held at which the plaintiff shall prove the allegation of abuse by a preponderance of the evidence. The court shall advise the defendant that he or she may be represented by counsel. (b) The court may enter such temporary orders as it deems necessary to protect the plaintiff or minor children from abuse, or the immediate and present danger of abuse to the plaintiff or minor children, upon good cause shown in an ex parte proceeding. (c) If a hearing under subsection (a) is continued, the court may make or extend temporary orders under subsection (b) as it deems reasonably necessary. (Acts 1981, No , p. 826, 6; Acts 1995, No , p. 1126, 1.) Section Orders for protection or modification - Authorized, issuance, relief, time, Alabama -- 4

5 amendment, etc. (a) The court may grant any protection order or approve any consent agreement to bring about a cessation of abuse of the plaintiff or minor children. (b) If it appears from a petition for an order for protection or a petition to modify an order of protection that abuse has occurred or a modification of an order for protection is required, the court may: (1) Without notice or hearing, immediately issue an order for protection ex parte or modify an order for protection ex parte as it deems necessary to protect the plaintiff or minor children. (2) After providing notice by certified mail to the defendant at his or her last known address, issue a final order for protection or modify an order for protection after a hearing whether or not the defendant appears. (c) A court may grant any of the following relief without notice and hearing in an order for protection or a modification issued ex parte: (1) Enjoin the defendant from threatening to commit or committing acts of abuse, as defined in this chapter, against the plaintiff or minor children, and any designated family or household member. (2) Prohibit the defendant from ha rassing, annoying, telephoning, contacting, or otherwise communicating, directly or indirectly, with the plaintiff or minor children. (3) Order the defendant to stay away from the residence, school, or place of employment of the plaintiff, the minor children, or any specified place frequented by the plaintiff, the minor children, and any designated family or household member which the defendant has no legitimate reason to frequent. (4) Award temporary custody of any minor children of the parties. (5) En join the defe nda nt from i nter fering with the p lai ntiff's effor ts to rem ove pla intiff's children and direct the appropriate law enforcement officer to accompany the plaintiff during the effort to remove plaintiff's children as necessary to protect the plaintiff or children from abuse. (6) Enjoin the defendant from removing minor children from the individual having legal custody of the minor children, except as otherwise authorized by a custody or visitation order issued by a court of competent jurisdiction. (7) Remove and exclude the defendant from the residence of the plaintiff, regardless of ownership of the residence. (8) Direct the appropriate law enforcement officer to accompany the plaintiff to the residence of the parties as necessary to protect the plaintiff or children from abuse. (9) Order other relief as it deems necessary to provide for the safety and welfare of the plaintiff or minor and any designated family or household member. (10 ) Prohibit the defendant from transferring, concealing, encumbering, or otherwise disposing of specified property mutually owned or lea sed by the parties. (d) A court may grant any of the following relief in a final order for protection or a modification of an order after notice and hearing, whether or not the defendant appears: (1) Grant the relief available in subsection (c). (2) Specify arrangements for visitation of any minor child by the defendant on a basis that gives primary consideration to the safety of the plaintiff or the minor child, or both, and require supervision by a third party or deny visitation if necessary to protect the safety of the plaintiff or minor child, or both. (3) Order the defendant to pay attorney's fees and court costs. (4) When the defendant has a duty to support the plaintiff or minor children living in the residence or household and the defendant is the sole owner or lessee, grant to the plaintiff Alabama -- 5

6 possession of the residence or household to the exclusion of the defendant by evicting the defendant or restoring possession to the plaintiff, or both, or by consent agreement allowing the defendant to provide suitable alternate housing. (5) Order the defendant to pay temporary reasonable support for the plaintiff or any child in the plaintiff's custody, or both, when the defendant has a legal obligation to support such person. The amount of temporary support awarded shall be in accordance with Child Support Guidelines. (6) Order the defendant to provide temporary possession of a vehicle to the plaintiff, if the plaintiff has no other means of transportation of his or her own and the defendant either has control of more than one vehicle or has alternate means of transportation. (e)(1) Any final protection order or approved consent agreement shall be for a period of one year unless a shorter or longer period of time is expressly ordered by the court. While the order is in effect, the court may amend its order or an approved consent agreement at any time upon subsequent petition filed by either party and a hearing held pursuant to this chapter. (2) Upon motion and showing of cause a final protection order may be continued for a definite period of time to be set by the court. (f) No order or agreement under this chapter shall in any manner affect title to any real property, except final subsequent proceedings available by law. (Acts 1981, No , p. 826, 7; Acts 19 95, No , p. 1126, 1.) Section Copies of order issued to certain persons; notice of penalties on order. (a) A copy of any order under this chapter shall be issued to the plaintiff, the defendant, and the law enforcement officials with jurisdiction to enforce the order or agreement. (b) Each order shall bear the following langua ge, prominently displa yed: "A willful violation of this order is a Class A misdemeanor which is punishable by a fine not to exceed two thousand dollars ($2,000) or imprisonment for up to a year in jail, or both, and is also punishable for civil contempt." However, failure to provide such notice shall not affect the validity of the protection order. (Acts 1981, No , p. 826, 8; Acts 19 95, No , p. 1126, 1.) Section Penalties. A defendant who has violated a protection order issued pursuant to this chapter by the commission of an act of abuse as defined in this chapter, or conduct other than abuse in violation of the order, shall be subject to being held in contempt of court and sha ll be guilty of a Class A misdemeanor. A second conviction for violation of this chapter shall, in addition to the permissible fine assessed, be punishable by a minimum of 48 hours continuous imprisonment which may not be suspended. A third or subsequent conviction shall, in addition to any permissible fine, be punishable by a minimum sentence of 30 days imprisonment which may not be suspended. The person shall also be subject to existing penalties upon conviction of any criminal charges arising out of the incident which is the basis of any protection order. (Acts 1981, No , p. 826, 9; Acts 19 95, No , p. 1126, 1.) Section Rules of Civil Procedure to apply; rights, remedies, etc., of defendant. Alabama -- 6

7 Any proceeding for the issuance of a protection order under this chapter shall be in accordance with the Rules of Civil Procedure and shall be in addition to any other civil or criminal penalties provided by law. It is specifically provided that any defendant shall have the same rights, remedies, and due process where any wrongful action is instituted as any defendant in other civil and criminal actions. (Acts 1981, No , p. 826, 10; Acts 1 995, No , p. 1126, 1.) Section Construction of chapter. The provisions of this chapter are supplemental and shall be construed in pari materia with other laws relating to civil and criminal procedure; provided, however, those laws or parts of laws which are in direct conflict or inconsistent herewith are hereby repealed. (Acts 1981, No , p. 826, 12.) Section 30-5A-1 Short title; purpose. This chapter may be cited as the "Family Violence Protection Order Enforcement Act." The purpose of this chapter is to provide criminal sanctions for the willful violation of certain protective or restraining orders issued in circuit, district, municipal, or juvenile courts in domestic relations or family violence cases. (Acts 1993, No , p. 495, 1.) Section 30-5A-2 Definitions. As used in this cha pter, the following terms shall have the following meanings, respectively, unless the context clearly indicates otherwise: (1) FAMILY VIO LENCE. The definition provided in Section , in pari materia with the definition provided for "abuse" in Sections to , inclusive. (2) JUDGE. The judge presiding in a court having jurisdiction over the defendant for violation of this chapter and shall include a duly appointed magistrate conducting initial appearances pursuant to the Alabama Ru les of Criminal Procedure or Juvenile Procedure. (3) PROTECTION ORDER or REST RAINING ORDER. Any order of a court of competent jurisdiction, whether or not located in this state, the purpose of which is to prohibit a person from committing any or all of the following acts: harass, annoy, alarm, intimidate, assault, communicate with, or otherwise bother another person. This definition shall include, but not be limited to, protection orders issued pursua nt to the Protection From Abuse Act, Sections to , inclusive, and restraining orders or injunctions issued in domestic relations, family violence or juvenile cases in accordance with the Alabama Rules of Civil Procedure or the Alabama Rules of Juvenile Procedu re, or both, and other applicable statutes and court rules. Restraining or protection orders not issued pursuant to the Protection From Abuse Act, Sections to , inclusive, must specify that a history of violence or abuse exists for the provisions of this chapter to apply. (Acts 1993, No , p. 495, 2.) Section 30-5A-3 Applicability of Rules of Civil Procedure; rights of defendant; contempt; Alabama -- 7

8 penalties. (a) Any proceeding under this chapter shall be in accordance with the Rules of Civil Procedure and shall be in addition to any other civil or criminal penalties provided by law. It is specifically provided that any defendant sha ll have the same rights, remedies, and due process where a ny wrongful action is instituted as any defendant in other civil and criminal actions. (b) Upon violation of a protection order or a court approved consent agreement, the court may hold the defendant or plaintiff as the case may be, in contempt and punish him or her in accordance with the law. (c)(1) A willful violation of a protection order, restraining order or injunctive order issued to bring about a cessation of the abuse of a person and which is issued by a court of competent jurisdiction is a Class A misdemeanor. (2) The first and any subsequent conviction for a willful violation of a protection order, restraining order or injunctive order issued to bring about a cessation of the abuse of a person is a Class A misdemeanor. A second conviction for violation of a protection order, restraining order or injunctive order issued to bring about a cessation of the abuse of a person shall, in addition to any other penalty or fine, be punishable by a minimum of 48 hours continuous imprisonment which may not be suspended. A third or subsequent conviction shall, in addition to any other penalty or fine, be punishable by a minimum sentence of 30 days imprisonment which may not be suspended. (Acts 1993, No , p. 495, 3; Acts 19 96, No , p. 684, 1.) Section 30-5A-4 Arrest for violation of chapter. A peace officer may arrest any person for the violation of this chapter if the officer has probable cause to believe that the person has violated any provision of a valid protection order, whether temporary or permanent, which has been served on the person or of which the person has received sufficient notice that the protection order has been issued. The officer may arrest the person without a warrant although he or she did not personally see the violation. Knowledge by the officer of the existence or contents of, or both, or presentation to the officer by the complainant of, a protection order shall constitute prima facie evidence of the validity of the order. (Acts 1993, No , p. 495, 4.) Alabama -- 8