Title 47

DOMESTIC AND FAMILY VIOLENCE

Chapters:

01 General Provisions

02 Civil Orders for Protection

03 Family and Children

04 Criminal Violations

05 Criminal Proceedings

06 Law Enforcement

07 Probation and Parole

08 Prevention and Treatment of Domestic Violence

Chapter 01

GENERAL PROVISIONS.

Sections:

47.0101 Purpose.

47.0102 Definitions.

47.0101 Purpose.

The purpose of this title is to recognize the importance of domestic violence as a serious crime against society and to assure the victim of domestic violence the maximum protection from abuse which the law and those who enforce the law can provide. 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 is not excused or tolerated. Furthermore, it is the intent of the Legislature that criminal laws be enforced without regard to whether the persons involved are or were married, cohabiting, or involved in a relationship.

History: 2004, PL 28-16.

47.0102 Definitions.

As used in this chapter, unless the context clearly requires otherwise:

(1) “Domestic or family violence” means the occurrence of one or more of the following acts by a family or household member, but does not include acts of self-defense:

(A) Attempting to cause or causing physical harm to another family or household member:

(B) Placing a family or household member in fear of physical harm; or

(C) Causing a family or household member to engage involuntarily in sexual activity by force, threat of force, or duress.

(2) “Family or household members” include:

(A) Adults or minors who are current or former spouses;

(B) Adults or minors who live together or who have lived together;

(D) Adults or minors who are engaged in or who have engaged in a sexual relationship;

(E) Adults or minors who are related by blood or adoption;

(F) Adults or minors who are related or formerly related by marriage;

(G) Persons who have a child in common; and

(H) Minor children of a person in a relationship that is described in paragraphs (A) through (H).

History: 2004, PL 28-16.

Chapter 02

CIVIL ORDERS FOR PROTECTION

Sections:

47.0201 Eligible petitioners for order.

47.0202 Uniform form required for petitions and orders—Required statements in petitions and orders—Duty of clerk t provide petitions and clerical assistance.

47.0203 Emergency order for protection—Available relief—Availability of judge or court officer—Expiration of order.

47.0204 Order for protection—Modification of orders—Relief available ex parte—Relief available after hearing—Duties of the court—Duration of order.

47.0205 Required hearing—Duty of court when order for protection denied.

47.0206 Court costs and fees.

47.0207 Registration and enforcement of foreign orders for protection—Duties of court clerk.

47.0201 Eligible petitioners for order.

(a) A person who is or has been a victim of domestic or family violence may file a petition for an order for protection against a family or household member who commits an act of domestic or family violence.

(b) A parent, guardian, or other representative may file a petition for an order for protection on behalf of a child against a family or household member who commits an act of domestic or family violence.

History: 2004, PL 28-16.

47.0202 Uniform form required for petitions and orders—Required statements in petitions and orders—Duty of clerk to provide petitions and clerical assistance.

(a) The Attorney General’s Office shall:

(1) Develop and adopt uniform forms for petitions and orders for protection, including but not limited to such orders issued pursuant to divorce, custody, and other domestic relations hearings; and

(2) Provide the forms to the clerk of each court authorized to issue such orders.

(b) In addition to any other required information, the petition for an order for protection must contain a statement listing each civil or criminal action involving both parties.

(1) “Violations of this order may be punished by confinement in jail and by a fine”.

(2) “If so ordered by the court, the respondent is forbidden to enter or stay at the petitioner’s residence, even if invited to do so by the petitioner or any other person. In no event is the order for protection voided.”

(d) The clerk of the court or other designated person shall provide to a person requesting an order for protection:

(1) The forms adopted pursuant to subsection (a); and

(2) Clerical assistance in filling out the forms and filing the petition.

History: 2004, PL 28-16.

47.0203 Emergency order for protection—Available relief—Availability of judge or court officer—Expiration of order.

(a) A court may issue a written or oral emergency order for protection ex parte when a law enforcement officer states to the court in person or by telephone, and the court finds reasonable grounds to believe, that the petitioner is in immediate danger of domestic or family violence based on an allegation of a recent incident of domestic or family violence by a family or household member.

(b) A law enforcement officer who receives an oral order for protection from a court shall:

(1) Write and sign the order on the form required pursuant t section 47.0202;

(2) Serve a copy on the respondent;

(3) Immediately provide the petitioner with a copy of the order; and

(4) Provide the order to the court by the end of the next judicial day.

(1) Enjoin the respondent from threatening to commit or committing acts of domestic or family violence against the petitioner and any designated family or household members;

(2) Prohibit the respondent from harassing, annoying, telephoning, contacting, or otherwise communicating with the petitioner, directly or indirectly;

(3) Remove and exclude the respondent from the residence of the petitioner, regardless of ownership of the residence;

(4) Order the respondent to stay away from the residence, school, place of employment of the petitioner, or any specified place frequented by the petitioner and any designated family or household member;

(5) Order possession and use of an automobile and other essential personal effects, regardless of the ownership of the essential personal effects, and direct the appropriate law enforcement officer to accompany the petitioner to the residence of the parties to ensure that the petitioner is safely restored to possession of the residence, automobile, and other essential personal effects, or to supervise the petitioner’s or respondent’s removal of personal belongings;

(6) Grant temporary custody of a minor child to the petitioner; and

(7) Order such other relief as the court deems necessary to protect and provide for the safety of the petitioner and any designated family or household member.

(d) A judge or other court officer with authority to issue an order for protection must be available 24 hours a day to hear petitions for emergency orders for protection.

(e) An emergency order for protection expires 72 hours after issuance.

History: 2004, PL 28-16.

47.0204 Order for protection—Modification of orders—Relief available ex parte—Relief available after hearing—Duties of the Court—Duration or order.

(a) If it appears from a petition for an order for protection or a petition to modify an order for protection that domestic or family violence has occurred or a modification of an order for protection is required, a 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 petitioner.

(2) Upon notice, issue an order for protection or modify an order after a hearing whether or not the respondent appears.

(b) A court may grant the following relief without notice and hearing in an order for protection or a modification issued ex parte:

(1) Enjoin the respondent from threatening to commit or committing acts of domestic or family violence against the petitioner and any designated family or household member;

(2) Prohibit the respondent from harassing, annoying, telephoning, contacting, or otherwise communicating with the petitioner, directly or indirectly;

(3) Remove and exclude the respondent from the residence of the petitioner, regardless of ownership of the residence;

(4) Order the respondent to stay away from the residence, school, or place of employment of the petitioner, or any specified place frequented by the petitioner and any designated family or household member;

(5) Prohibit the respondent from using or possessing a firearm or other weapon specified by the court;

(6) Order possession and use of an automobile and other essential personal effects, regardless of the ownership of the essential personal effects, and direct the appropriate law enforcement officer to accompany the petitioner to the residence of the parties to ensure that the petitioner is safely restored to possession of the residence, automobile, and other essential personal effects, or to supervise the petitioner’s or respondent’s removal of personal belongings;

(7) Grant temporary custody of any minor children to the petitioner; and

(8) Order such other relief as it deems necessary to provide for the safety and welfare of the petitioner and any designated family or household member.

(c) A court may grant the following relief in an order for protection or a modification of an order after notice and hearing, whether or not the respondent appears:

(1) Grant the relief available in accordance with subsection (b).

(2) Specify arrangements for visitation of any minor child by the respondent and require supervision of that visitation by the third party or deny visitation if necessary to protect the safety of the petitioner or child.

(3) Order the respondent to pay attorney’s fees.

(4) Order the respondent to:

(a) Pay rent or make payment on a mortgage on the petitioner’s residence and pay for the support of the petitioner and minor child if the respondent is found to have a duty to support the petitioner or minor child.

(b) Reimburse the petitioner or other person for any expenses associated with the domestic or family violence, including but not limited to medical expenses, counseling, shelter, and repair or replacement of damaged property; and

(d) The Court shall:

(1) Cause the order to be delivered to the appropriate authority for service;

(2) Make reasonable efforts to ensure that the order for protection is understood by the petitioner, and the respondent, if present;

(3) Transmit, by the end of the next business day after the order is issued, a copy of the order for protection to the local law enforcement agency or agencies designated by the petitioner; and

(4) Transmit a copy of the order to the American Samoa Registry.

(e) An order for protection issued ex parte or upon notice and hearing or a modification of an order for protection issued ex parte or upon notice and hearing is effective until further order of the court.

(f) The designated authority shall provide expedited service for orders for protection.

History: 2004, PL 28-16.

47.0205 Required hearings—Duty of court when order for protection denied.

(a) Except as otherwise provided in subsection (b), if a court issues an order for protection ex parte or a modification of an order for protection ex parte and the court provides relief pursuant to section 47.0204 (b), upon a request by either party within 30 days after service of the order or modification, the court shall set a date for a hearing on the petition. The hearing must be held within ten days after the request for a hearing is filed unless continued by the court for good cause shown.

(b) The court shall set a date for a hearing on the petition within 10 days after the filing of the petition if a court issues an order for protection ex parte or a modification of an order of protection ex parte, and:

(1) The petitioner requests or the court provides relief in accordance with section 47.0204(b)(7), concerning custody of a minor child; or

(2) The petitioner requests relief pursuant to section 47.0204(c)(2)(4).

History: 2004, PL 28-16.

47.0206 Court costs and fees.

Fees for filing and service of process must not be charged for any proceeding seeking only the relief provided in this chapter.

History: 2004, PL 28-16.

47.0207 Registration and enforcement of foreign orders for protection—Duties of court clerk.

(a) A certified copy of an order for protection issued in the United States may be filed in the office of the clerk of the High Court. The clerk shall act upon the order in the same manner as the clerk acts upon an order for protection issued by the High Court.

(b) A filed order for protection has the same effect and must be enforced in the same manner as an order for protection issued by a court of this Territory. The court shall enforce all provisions of a registered foreign order for protection whether or not such relief is available in this Territory.

History: 2004, PL 28-16.

Chapter 03

FAMILY AND CHILDREN

Sections:

47.0301 Presumptions concerning custody and residence of child.

47.0302 Factors in determining custody and visitation.

47.0303 Conditions of visitation in cases involving domestic and family violence.

47.0301 Presumptions concerning custody and residence of child.

In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption that it is:

(1) detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of family violence.

(2) In the best interest of the child to reside with the parent who is not a perpetrator of domestic or family violence in the location of that parent’s choice, within or outside the Territory.

History: 2004, PL 28-16.

47.0302 Factors in determining custody and visitation.

(a) In addition to other factors that a court must consider in a proceeding in which the custody of a child or visitation by a parent is at issue and in which the Court has made a finding of domestic or family violence:

(1) The Court shall consider as primary the safety and well being of the child and of the parent who is the victim of domestic or family violence.

(2) The Court shall consider the perpetrator’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault, to another person.

(b) If a parent is absent or relocates because of an act of domestic or family violence by the other parent, the absence or relocation is not a factor that weighs against the parent in determining custody or visitation.

(c) In every proceeding in which there is at issue the modification of an order for custody or visitation of a child, the finding that domestic or family violence has occurred since the last custody determination constitutes a finding of a change of circumstances.

History: 2004, PL 28-16.

47.0303 Conditions of visitation in cases involving domestic and family violence.

(a) A court may award visitation by a parent who committed domestic or family violence only if the court finds that adequate provision for the safety of the child and the parent who is a victim of domestic or family violence can be made.

(b)In a visitation order, a Court may:

(1) Order an exchange of a child to occur in a protected setting.

(2) Order visitation supervised by another person or agency.

(3) Order the perpetrator of domestic or family violence to attend and complete, to the satisfaction of the court, a program of intervention for perpetrators or other designated counseling as a condition of the visitation.

(4) Order the perpetrator of domestic or family violence to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding the visitation.

(5) Order the perpetrator of domestic or family violence to pay a fee to defray the costs of supervised visitation.

(6) Prohibit overnight visitation.

(7) Require a bond from the perpetrator of domestic or family violence for the return and safety of the child.

(8) Impose any other condition that is deemed necessary to provide for the safety of the child, the victim of domestic or family violence, or other family or household member.

(c) The Court may refer but shall not order an adult who is a victim of domestic or family violence to attend counseling relating to the victim’s status or behavior as a victim, individually or with the perpetrator of domestic or family violence as a condition of receiving custody of a child or as a condition of visitation.

(d) If a Court allows a family or household member to supervise visitation, the Court shall establish conditions to be followed during visitation.

History: 2004, PL 28-16.

Chapter 04

CRIMINAL VIOLATIONS

Sections:

47.0401 Crime involving domestic or family violence defined.

47.0402 Mandatory fine for conviction of a crime of domestic or family violence.

47.0403 Violation of certain orders for protection is misdemeanor.

47.0404 Enhancement of penalty for second or subsequent crime involving domestic or family violence.

47.0401 Crime involving domestic or family violence defined.

(a) A “crime involving domestic or family violence” occurs when a family or household member, as defined in section 47.0102(1), commits one or more of the following crimes against another family or household member:

(1) arson;

(2) assault and harassment;

(3) burglary, robbery, tampering;

(4) property damage;

(5) homicide offenses (murder and manslaughter, negligent homicide);

(6) kidnapping, felonious restraint, false imprisonment;

(7) sex offenses (rape, sexual assault, deviate sexual assault, sexual abuse, child molesting);

(8) stealing and related offenses;

(9) weapon law violations (unlawful use of weapons, possessing a defaced firearm, unlawfully transferring a weapon, unlawful possession of firearms and firearm ammunition);

(10) offenses against public order (disturbing public peace, disbursing private peace);