Domestic Abuse Laws
Idaho
2001
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39-6301. SHORT TITLE.
This chapter shall be known and may be cited as the "Domestic Violence Crime Prevention Act."
39-6302. STATEMENT OF PURPOSE.
For purposes of this chapter, the legislature adopts by reference the declaration of policy in section 39-5201, Idaho Code. Additionally, the legislature finds that a significant number of homicides, aggravated assaults, and assaults and batteries occur within the home between adult members of families. Furthermore, research shows that domestic violence is a crime which can be deterred, prevented or reduced by legal intervention. Domestic violence can also be deterred, prevented or reduced by vigorous prosecution by law enforcement agencies and prosecutors and by appropriate attention and concern by the courts whenever reasonable cause exists for arrest and prosecution.
The purpose of this act is to address domestic violence as a serious crime against society and to assure the victims of domestic violence the protection from abuse which the law and those who enforce the law can provide.
It is the intent of the legislature to expand the ability of the courts to assist victims by providing a legal means for victims of domestic violence to seek protection orders to prevent such further incidents of abuse. It is the intent of the legislature that the official response to cases of domestic violence shall stress the enforcement of the laws to protect the victim and shall communicate the attitude that violent behavior in the home is criminal behavior and will not be tolerated. It is the intent of the legislature to presume the validity of protection orders issued by courts in all states, the District of Columbia, United States territories and all federally recognized Indian tribes within the United States, and to afford full faith and credit to those orders. The provisions of this chapter are to be construed liberally to promote these purposes.
39-6303. DEFINITIONS.
(1) "Domestic violence" means
the physical injury, sexual abuse or forced imprisonment or threat thereof
of a family or household member, or of a minor child by a person with whom
the minor child has had or is having a dating relationship.
(2) "Dating relationship," for the purposes of this chapter, is defined as
a social relationship of a romantic nature. Factors that the court may consider
in making this determination include
(a) The nature of the relationship;
(b) The length of time the relationship has existed;
(c) The frequency of interaction between the parties; and
(d) The time since termination of the relationship, if applicable.
(3) "Family or household member" means spouses, former spouses, persons related
by blood or marriage, persons who reside or have resided together, and persons
who have a child in common regardless of whether they have been married or
have lived together at any time.
(4) "Family dwelling" is any premises in which the petitioner resides.
(5) "Judicial day" means any day upon which court business may be transacted
as provided in sections 1-1606 and 1-1607, Idaho Code.
(6) "Protection order" means any order issued for the purpose of preventing
violent or threatening acts or acts of harassment against, or contact or
communication with, or physical proximity to, another person, where the order
was issued
(a) Pursuant to this chapter;
(b) In another jurisdiction pursuant to a provision similar to section 39-6306,
Idaho Code; or
(c) In any criminal or civil action,as a temporary or final order (other
than a support or child custody order), and where the order was issued in
a response to a criminal complaint, petition or motion filed by or on behalf
of a person seeking protection, and issued after giving notice and an opportunity
to respond to the person being restrained.
39-6304. ACTION FOR PROTECTION.
(1) There shall exist an
actionknown as a "petition for a protection order" in cases of domestic violence.
(2) A person may seek relief from domestic violence by filing a petition
based on a sworn affidavit with the magistrates division of the district
court, alleging that the person or a family or household member, whether
an adult or a child, is the victim of domestic violence. Any petition properly
filed under this chapter may seek protection for any additional persons covered
by this chapter. A custodial or noncustodial parent or guardian may file
a petition on behalf of a minor child who is the victim of domestic violence.
(3) A person's right to petition for relief under this chapter shall not
be affected by that person's having left the residence or household to avoid
abuse.
(4) The petition shall disclose the existence of any custody or any marital
annulment, dissolution or separation proceedings pending between the parties,
the existence of any other custody order affecting the children of the parties,
and the existence of child protection or adoption proceedings affecting the
children of any party.
(5) When the petitioner requests custody of any child, the petition shall
disclose
(a) The county and state where the child has resided for six (6) months
immediately prior to the filing of the petition;
(b) The party or other responsible person with whom the child is presently
residing; and
(c) The party or other responsible person with whom the child has resided
for six (6) months immediately prior to the filing of the petition.
(6) A petition shall be filed in the county of the respondent's residence,
the petitioner's residence, or where the petitioner is temporarily residing.
39-6305. FEES WAIVED.
No filing fee, service fee, hearing fee or bond shall be charged for proceedings seeking only the relief provided under this chapter.
39-6306. HEARING ON PETITION FOR PROTECTION ORDER -- RELIEF ROVIDED AND REALIGNMENT OF DESIGNATION OF PARTIES.
(1) Upon filing of a petition
based upon a sworn affidavit for a protection order, the court shall hold
a hearing to determine whether the relief sought shall be granted within
fourteen (14) days. If either party is represented by counsel at a hearing
seeking entry of a protection order, the court shall permit a continuance,
if requested, of the proceedings so that counsel may be obtained by the other
party. If the court finds that it is necessary for both parties to be represented
by counsel, the court shall enter appropriate orders to insure that counsel
is retained. The order entered may require either the petitioner or respondent,
or both, to pay for costs of counsel. Upon a showing that there is an immediate
and present danger of domestic violence to the petitioner the court may,
if requested, order for a period not to exceed three (3) months that
(a) Temporary custody of the minor children of the petitioner or of the parties
be awarded to the petitioner or respondent if exercise of such jurisdiction
is consistent with the provisions of section 32-11-204, Idaho Code, and
consistent with prior custody orders entered by a court of competent jurisdiction
unless grounds exist pursuant to section 32-717, Idaho Code;
(b) A party be restrained from committing acts of domestic violence;
(c) Exclude the respondent from the dwelling which the parties share or from
the residence of the petitioner;
(d) The respondent be ordered to participate in treatment or counseling services.
The council on domestic violence, in recognition of the particular treatment
requirements for batterers, shall develop minimal program and treatment standards
to be used as guidelines for recommending approval of batterer programs to
the court;
(e) Other relief be ordered as the court 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) The respondent be required to pay service fees, and to reimburse the
petitioner for costs incurred in bringing the action, including a reasonable
attorney's fee;
(g) The respondent be restrained from contacting, molesting, interfering
with or menacing the minor children whose custody is awarded to the petitioner;
and/or
(h) The respondent be restrained from entering any premises when it appears
to the court that such restraint is necessary to prevent the respondent from
contacting, molesting, interfering with or menacing the petitioner or the
minor children whose custody is awarded to the petitioner.
(2) Immediate and present danger under this section includes, but is not
limited to, situations in which the respondent has recently threatened the
petitioner with bodily harm or engaged in domestic violence against the
petitioner.
(3) No order made under this chapter shall in any manner affect title to
real property.
(4) Relief shall not be denied because petitioner used reasonable force in
self-defense against respondent, or because petitioner or respondent was
a minor at the time of the incident of domestic violence.
(5) Any relief granted by the protection order, other than a judgment for
costs, shall be for a fixed period not to exceed three (3) months; provided,
that an order obtained pursuant to this chapter may, upon motion and upon
good cause shown, be renewed for additional terms not to exceed one (1) year
each if the requirements of this chapter are met. The motion to renew an
order may be granted without a hearing, if not timely objected to by the
party against whom the order was entered.
(6) In providingrelief 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.
39-6306A. OUT-OF-STATE ORDERS -- PRESUMED VALID -- REGISTRATION -- FULL FAITH AND CREDIT.
(1) An out-of-state protection
order is presumed valid if the issuing court had jurisdiction over the parties
and matter under the law of the state, district, territory or tribe and the
order appears authentic on its face.
(2) A valid out-of-stateprotection order may be registered with a court of
this state in order to be entered in the Idaho law enforcement telecommunications
system pursuant to section 39-6311, Idaho Code. No fees are required to register
an out-of-state protection order.
(3) It is not necessary that the out-of-state protection order be registered
pursuant to section 39-6311, Idaho Code, in order to be enforced.
(4) A valid out-of-state protection order shall be afforded full faith and
credit by the courts of this state and shall be enforced as if issued in
this state.
39-6307. SECURITY.
Whenever a protection order is issued under this chapter, the issuing court may set a security amount for a violation of the order.
39-6308. EX PARTE TEMPORARY PROTECTION ORDER.
(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 protection order based
upon the affidavit submitted or otherwise shall hold a hearing which may
be ex parte on the day a petition is filed or on the following judicial day
to determine whether the court should grant an ex parte temporary protection
order, pending a full hearing, and grant such other 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;
(d) Ordering other relief as the court deems necessary for the protection
of a family or household member, including orders or directives to a peace
officer, as allowed under this chapter;
(e) Restraining the respondent from contacting, molesting, interfering with
or menacing the minor children whose custody is awarded to the petitioner;
(f) Restraining the respondent from entering any premises when it appears
to the court that such restraint is necessary to prevent the respondent from
contacting, molesting, interfering with or menacing the petitioner or the
minor children whose custody is awarded to the petitioner; and/or
(g) Restraining the respondent from taking more than personal clothing and
toiletries and any other items specifically ordered by the court.
(2) An ex parte hearing to consider the issuance of a temporary protection
order may be conducted by telephone in accordance with procedures established
by the Idaho supreme court.
(3) Irreparable injury under this section includes but is not limited to
situations in which the respondent has recently threatened the petitioner
with bodily injury or has engaged in acts of domestic violence against the
petitioner.
(4) The court shall hold an ex parte hearing on the day the petition is filed
or on the following judicial day.
(5) An ex parte temporary protection order shall be effective for a fixed
period not to exceed fourteen (14) days, but may be reissued. A full hearing,
as provided in this chapter, shall be set for not later than fourteen (14)
days from the issuance of the temporary order. The respondent shall be 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. If the ex parte temporary protection order
substantially affects the respondent's rights to enter the domicile or the
respondent's right to custody or visitation of the respondent's children
and the ends of justice so require, the respondent may move the court for
an order shortening the time period within which the hearing required under
the provisions of section 39-6306, Idaho Code, must be held. Motions seeking
an order shortening the time period must be served upon the petitioner at
least two (2) days prior to the hearing on the motion.
39-6309. ISSUANCE OF ORDER -- ASSISTANCE OF PEACE OFFICER -- DESIGNATION OF APPROPRIATE LAW ENFORCEMENT AGENCY.
When an order is issued or afforded full faith and credit under this chapter upon request of the petitioner, the court may order a peace officer to accompany the petitioner and assist in placing the petitioner in possession of the dwelling or residence, or otherwise assist in the execution of the protection order. A certified copy of the order shall be prepared by the clerk for transmittal to the appropriate law enforcement agency as specified in section 39-6311, Idaho Code. Orders issued or afforded full faith and credit under this chapter shall include an instruction to the appropriate law enforcement agency to execute, serve, or enforce the order.
39-6310. ORDER AND SERVICE.
(1) An order issued under
this chapter along with a copy of the petition for a protection order, if
the respondent has not previously received the petition, shall be personally
served upon the respondent, except as provided in subsections (6), (7) and
(8) of this section.
(2) A peace officer of the jurisdiction in which the respondent resides shall
serve the respondent personally unless the petitioner elects to have the
respondent served by a private party at the petitioner's own expense.
(3) If service by a peace officer is to be used, the clerk of the court shall
have a copy of any order issued under this chapter and a copy of the petition
for a protection order, if the respondent has not previously received the
petition, 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 peace officer cannot complete service upon the respondent within
ten (10) 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 and receives a copy of the order, the necessity
for further service is waived and proof of service of that order is not
necessary.
(7) If a party has appeared in person before the court and has waived personal
service, the clerk of the court shall complete service of any notice of hearing
or orders or modifications by certified mail to the party's address as shown
on the court petition which resulted in the issuance of the order or
modification. Parties shall at all times keep the court informed of their
current mailing address.
(8) If an out-of-state protection order is registered with the court under
section 39-6306A, Idaho Code, the necessity for further service is waived
and proof of service of that order is not necessary.
39-6311. ORDER -- TRANSMITTAL TO LAW ENFORCEMENT AGENCY -- RECORD IN IDAHO LAW ENFORCEMENT TELECOMMUNICATIONS SYSTEM -- ENFORCEABILITY.
(1) The orders issued under
sections 39-6306 and 39-6308, Idaho Code, or out-of-state orders afforded
full faith and credit under section 39-6306A, Idaho Code, shall be in a form
approved by the supreme court of the state of Idaho.
(2) (a) A copy of a protection order granted or afforded full faith and credit
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.
(b) Upon receipt ofthe order, the law enforcement agency shall forthwith
enter the order and its expiration date into the Idaho law enforcement
telecommunications system available in this state used by law enforcement
agencies to list outstanding warrants. Notification of service as required
in section 39-6310, Idaho Code, shall also be entered into the Idaho law
enforcement telecommunications system upon receipt. Entry into the Idaho
law enforcement telecommunications 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. Renewals of the order shall be recorded
in the same manner as original orders. The information entered shall specifically
state that the protection order is civil in nature. If the appropriate law
enforcement agency determines that the service information sheet is incomplete
or cannot be entered into the Idaho law enforcement telecommunications system
upon receipt, the service information sheet shall be returned to the clerk
of the court. The clerk of the court shall then notify the petitioner of
the error or omission.
(3) Law enforcement agencies shall establish procedures reasonably adequate
to assure that an officer approaching or actually at the scene of an incident
of domestic violence may be informed of the existence and terms of such
protection order.
(4) A protection order shall remain in effect for the term set by the court
or until terminated by the court. A protection order may, upon motion and
upon good cause shown, be renewed for additional terms not to exceed one
(1) year each if the requirements of this chapter are met. The motion to
renew an order may be granted without a hearing, if not timely objected to
by the party against whom the order was entered. If the petitioner voluntarily
and without duress consents to the waiver of any portion of the protection
order vis-a-vis the respondent pursuant to section 39-6313, Idaho Code, the
order may be modified by the court.
39-6312. VIOLATION OF ORDER -- PENALTIES.
(1) Whenever a protection
order is granted and the respondent or person to be restrained had notice
of the order, a violation of the provisions of the order or of a provision
excluding the person from a residence shall be a misdemeanor punishable by
not to exceed one (l) year in jail and a fine not to exceed five thousand
dollars ($5,000), ten dollars ($10.00) of which shall be deposited to the
credit of the domestic violence project account created in section 39-5212,
Idaho Code.
(2) A peace officermay arrest without a warrant and take into custody a person
whom the peace officer has probable cause to believe has violated an order,
if the person restrained had notice of the order.
(3) The person against whom a protection order has been issued by an out-of-state
court is presumed to have notice of the order if the victim presents to the
officer proof of service of the order.
39-6313. ORDER -- MODIFICATION -- TRANSMITTAL.
Upon application with notice to all parties and after a hearing, the court may modify the terms of an existing protection order. 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 modification or termination order. Upon receipt of the order, the law enforcement agency shall promptly enter it in the Idaho law enforcement telecommunications system.
39-6314. PEACE OFFICERS -- IMMUNITY.
No peace officer may be held criminally or civilly liable for actions or omissions in the performance of the duties of his office under this chapter, including the enforcement of out-of-state protection orders, if the peace officer acts in good faith and without malice.
39-6315. PROCEEDINGS ADDITIONAL.
Any proceedings under this chapter are in addition to other civil or criminal remedies.
39-6316. LAW ENFORCEMENT OFFICERS -- TRAINING, POWERS, DUTIES.
(1) All trainingprovided
by the peace officers standards and training academy relating to the handling
of domestic violence complaints by law enforcement officers shall stress
enforcement of criminal laws in domestic situations, availability of community
resources, and protection of the victim. Law enforcement agencies and community
organizations with expertise in the issue of domestic violence shall cooperate
in all aspects of such training.
(2) When a peace officer responds to a domestic violence call, the officer
shall give a written statement to victims which alerts the victim to the
availability of a shelter or other resources in the community, and give the
victim a written notice provided by the Idaho state police substantially
stating the following
IF YOU ARE THE VICTIM OF DOMESTIC VIOLENCE, you can ask the city or county prosecuting attorney to file a criminal complaint. You also have the right to file a petition in magistrate court requesting an order for protection from domestic abuse which could include any of the following (a) an order restraining your abuser from further acts of abuse; (b) an order directing your abuser to leave your household; (c) an order preventing your abuser from entering your residence, school, business, or place of employment; (d) an order awarding you or the other parent custody of or visitation with your minor child or children; and (e) an order restraining your abuser from molesting or interfering with minor children in your custody. The forms you need to obtain a protection order are available from the clerk of the district court. The resources available in this community for information relating to domestic violence, treatment of injuries and places of safety and shelters are (For safety reasons, inclusion of shelter/safe house addresses is not necessary). You also have the right to sue for losses suffered as a result of the abuse, including medical and moving expenses, loss of earnings or support, and other out-of-pocket expenses for injuries sustained and damage to your property. This can be done without an attorney in small claims court if the total amount claimed is less than four thousand dollars ($4,000).
(3) The peace officer shall
make every effort to arrange, offer, or facilitate transportation for the
victim to a hospital for treatment of injuries or to a place of safety or
shelter.
(4) The law enforcement agency shall forward the offense report to the
appropriate prosecutor within ten (10) days of making such report if there
is probable cause to believe that an offense has been committed, unless the
case is under active investigation.
39-6317. SEVERABILITY.
The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.
