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Developed and maintained by the Division of Legislative Automated Systems.
1996 SESSION
963342817Patrons-- Davies, Bryant, Johnson, Putney, Rollison, Stump and Weatherholtz; Senators: Bolling and Houck
Be it enacted by the General Assembly of Virginia:
1. That § 16.1-260 as it is currently effective and as it may become effective and § 19.2-3.1 of the Code of Virginia are amended and reenacted as follows:
§ 16.1-260. (For effective date - See note) Intake; petition; investigation.
A. All matters alleged to be within the jurisdiction of the court shall be
commenced by the filing of a petition, except as provided in subsection
FH of this section and in § 16.1-259. The form and
content of the petition shall be as provided in § 16.1-262. No individual
shall be required to obtain support services from the Department of Social
Services prior to filing a petition seeking support for a child. Complaints,
requests and the processing of petitions to initiate a case shall be the
responsibility of the intake officer. However, (i) the attorney for the
Commonwealth of the city or county may file a petition on his own motion with
the clerk, (ii) the Department of Social Services may file support petitions on
its own motion with the clerk, and (iii) any attorney may file petitions on
behalf of his client with the clerk except petitions alleging that the subject
of the petition is a child alleged to be in need of services, in need of
supervision or delinquent. Complaints alleging abuse or neglect of a child
shall be referred initially to the local department of public welfare or social
services in accordance with the provisions of Chapter 12.1 (§ 63.1-248.1
et seq.) of Title 63.1. Motions and other subsequent pleadings in a case shall
be filed directly with the clerk. The intake officer or clerk with whom the
petition or motion is filed shall inquire whether the petitioner is receiving
child support services or public assistance. No individual who is receiving
support services or public assistance shall be denied the right to file a
petition or motion to establish, modify or enforce an order for support of a
child. If the petitioner is seeking or receiving child support services or
public assistance, the clerk, upon issuance of process, shall forward a copy of
the petition or motion together with notice of the court date to the Division
of Child Support Enforcement.
B. The appearance of a child before an intake officer may be by (i) personal appearance before the intake officer or (ii) use of two-way electronic video and audio communication. If two-way electronic video and audio communication is used, an intake officer may exercise all powers conferred by law. All communications and proceedings shall be conducted in the same manner as if the appearance were in person, and any documents filed may be transmitted by facsimile process. The facsimile may be served or executed by the officer or person to whom sent, and returned in the same manner, and with the same force, effect, authority, and liability as an original document. All signatures thereon shall be treated as original signatures. Any two-way electronic video and audio communication system used for an appearance shall meet the standards as set forth in subsection B of § 19.2-3.1.
C. When the court service unit of any court receives a complaint alleging facts which may be sufficient to invoke the jurisdiction of the court pursuant to § 16.1-241, the unit, through an intake officer, may proceed informally to make such adjustment as is practicable without the filing of a petition or may authorize a petition to be filed by any complainant having sufficient knowledge of the matter to establish probable cause for the issuance of the petition. The intake officer shall accept and file a petition in which it is alleged that (i) the custody, visitation or support of a child is the subject of controversy or requires determination, (ii) a person has deserted, abandoned or failed to provide support for any person in violation of law, or (iii) a child or such child's parent, guardian, legal custodian or other person standing in loco parentis is entitled to treatment, rehabilitation or other services which are required by law. If any such complainant does not file a petition, the intake officer may file it. In cases in which a child is alleged to be abused, neglected, in need of services, in need of supervision or delinquent, if the intake officer believes that probable cause does not exist, or that the authorization of a petition will not be in the best interest of the family or child or that the matter may be effectively dealt with by some agency other than the court, he may refuse to authorize the filing of a petition.
C. D. Prior to the filing of any petition alleging that a
juvenile is in need of supervision, the matter shall be reviewed by an intake
officer who shall determine whether the petitioner and the juvenile alleged to
be in need of supervision have utilized or attempted to utilize treatment and
services available in the community and have exhausted all appropriate
nonjudicial remedies which are available to them. When the intake officer
determines that the parties have not attempted to utilize available treatment
or services or have not exhausted all appropriate nonjudicial remedies which
are available, he shall refer the petitioner and the child alleged to be in
need of supervision to the appropriate agency, treatment facility or individual
to receive treatment or services, and a petition shall not be filed. Only after
the intake officer determines that the parties have made a reasonable effort to
utilize available community treatment or services, may he permit the petition
to be filed.
D. E. If the intake officer refuses to authorize a
petition relating to an offense that if committed by an adult would be
punishable as a Class 1 misdemeanor or as a felony, the complainant shall be
notified in writing at that time of the complainant's right to apply to a
magistrate for a warrant. If a magistrate determines that probable cause
exists, he shall issue a warrant returnable to the juvenile and domestic
relations district court. The warrant shall be delivered forthwith to the
juvenile court, and the intake officer shall accept and file a petition founded
upon the warrant. If the court is closed and the magistrate finds that the
criteria for detention or shelter care set forth in § 16.1-248.1 have been
satisfied, the child may be detained pursuant to the warrant issued in
accordance with this subsection. If the intake officer refuses to authorize a
petition relating to a child in need of services or in need of supervision, a
status offense, or a misdemeanor other than Class 1, his decision is final.
Upon delivery to the juvenile court of a warrant issued pursuant to subdivision 3 of § 16.1-256, the intake officer shall accept and file a petition founded upon the warrant.
E. F. The intake officer shall notify the attorney for
the Commonwealth of the filing of any petition which alleges facts of an
offense which would be a felony if committed by an adult.
E1. G. After a petition is filed
alleging that a juvenile committed an act which would be a crime if committed
by an adult, the intake officer shall, as soon as practicable, provide notice
by telephone of the filing of the petition and the nature of the offense to the
superintendent of the school division in which the petitioner alleges the
juvenile is or should be enrolled, provided the violation involves:
1. The unlawful purchase, possession or use of a weapon pursuant to Article 4 (§ 18.2-279 et seq.) of Chapter 7 of Title 18.2;
2. Homicide, pursuant to Article 1 (§ 18.2-30 et seq.) of Chapter 4 of Title 18.2;
3. Felonious assault and bodily wounding, pursuant to Article 4 (§ 18.2-51 et seq.) of Chapter 4 of Title 18.2;
4. Criminal sexual assault, pursuant to Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2;
5. Manufacture, sale, gift, distribution or possession of Schedule I or II controlled substances, pursuant to Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2;
6. Manufacture, sale or distribution of marijuana pursuant to Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2;
7. Arson and related crimes, pursuant to Article 1 (§ 18.2-77 et seq.) of Chapter 5 of Title 18.2; or
8. Burglary, pursuant to § 18.2-89.
Promptly after filing a petition the intake officer shall also mail notice, by first class mail, to the superintendent. The failure to provide information regarding the school in which the juvenile who is the subject of the petition may be enrolled shall not be grounds for refusing to file a petition.
The information provided to a division superintendent pursuant to this section may be disclosed only as provided in § 16.1-305.2.
F. H. The filing of a petition
shall not be necessary:
1. In the case of violations of the traffic laws, including offenses involving bicycles, hitchhiking and other pedestrian offenses, game and fish laws or a violation of the ordinance of any city regulating surfing or any ordinance establishing curfew violations or animal control violations. In such cases the court may proceed on a summons issued by the officer investigating the violation in the same manner as provided by law for adults. Additionally, an officer investigating a motor vehicle accident may, at the scene of the accident or at any other location where a juvenile who is involved in such an accident may be located, proceed on a summons in lieu of filing a petition.
2. In the case of seeking consent to apply for the issuance of a work permit pursuant to subdivision H of § 16.1-241.
3. In the case of a violation of § 18.2-266 or § 29.1-738, or the commission of any other alcohol-related offense, provided the child is released to the custody of a parent or legal guardian pending the initial court date. The officer releasing a child to the custody of a parent or legal guardian shall issue a summons to the child and shall also issue a summons requiring the parent or legal guardian to appear before the court with the child. Disposition of the charge shall be in the manner provided in § 16.1-278.8 or § 16.1-278.9. If the child so charged with a violation of § 18.2-266 or § 29.1-738 refuses to provide a sample of blood or breath or samples of both blood and breath for chemical analysis pursuant to §§ 18.2-268.1 through 18.2-268.12 or § 29.1-738.2, the provisions of these sections shall be followed except that the magistrate shall authorize execution of the warrant as a summons. The summons shall be served on a parent or legal guardian and the child, and a copy of the summons shall be forwarded to the court in which the violation of § 18.2-266 or § 29.1-738 is to be tried.
4. In the case of offenses which, if committed by an adult would be punishable as Class 3 or Class 4 misdemeanor. In such cases the court may direct that an intake officer proceed as provided in § 16.1-237 on a summons issued by the officer investigating the violation in the same manner as provided by law for adults provided that notice of the summons to appear is mailed by the investigating officer within five days of the issuance of the summons to a parent or legal guardian of the juvenile.
G. I. Failure to comply with the
procedures set forth in this section shall not divest the juvenile court of the
jurisdiction granted it in § 16.1-241.
§ 16.1-260. (Delayed effective date - See notes) Intake; petition; investigation.
A. All matters alleged to be within the jurisdiction of the court shall be
commenced by the filing of a petition, except as provided in subsection
FH of this section and in § 16.1-259. The form and
content of the petition shall be as provided in § 16.1-262. No individual
shall be required to obtain support services from the Department of Social
Services prior to filing a petition seeking support for a child. Complaints,
requests and the processing of petitions to initiate a case shall be the
responsibility of the intake officer. However, (i) the attorney for the
Commonwealth of the city or county may file a petition on his own motion with
the clerk, (ii) the Department of Social Services may file support petitions on
its own motion with the clerk, and (iii) any attorney may file petitions on
behalf of his client with the clerk except petitions alleging that the subject
of the petition is a child alleged to be in need of services, in need of
supervision or delinquent. In addition, all cases for divorce, annulment or
affirmation of marriage, separate maintenance, equitable distribution based on
a foreign decree, adoption, change of name, amendment of a record of birth and
judicial review of school board actions and of hearing officer decisions shall
be filed directly with the clerk. Complaints alleging abuse or neglect of a
child shall be referred initially to the local department of public welfare or
social services in accordance with the provisions of Chapter 12.1 (§
63.1-248.1 et seq.) of Title 63.1. Motions and other subsequent pleadings in a
case shall be filed directly with the clerk. The intake officer or clerk with
whom the petition or motion is filed shall inquire whether the petitioner is
receiving child support services or public assistance. No individual who is
receiving support services or public assistance shall be denied the right to
file a petition or motion to establish, modify or enforce an order for support
of a child. If the petitioner is seeking or receiving child support services or
public assistance, the clerk, upon issuance of process, shall forward a copy of
the petition or motion together with notice of the court date to the Division
of Child Support Enforcement.
B. The appearance of a child before an intake officer may be by (i) personal appearance before the intake officer or (ii) use of two-way electronic video and audio communication. If two-way electronic and audio communication is used, an intake officer may exercise all powers conferred by law. All communications and proceedings shall be conducted in the same manner as if the appearance were in person, and any documents filed may be transmitted by facsimile process. The facsimile may be served or executed by the officer or person to whom sent, and returned in the same manner, and with the same force, effect, authority, and liability as an original document. All signatures thereon shall be treated as original signatures. Any two-way electronic video and audio communication system used for an appearance shall meet the standards as set forth in subsection B of § 19.2-3.1.
C. When the court service unit of any court receives a complaint alleging facts which may be sufficient to invoke the jurisdiction of the court pursuant to § 16.1-241, the unit, through an intake officer, may proceed informally to make such adjustment as is practicable without the filing of a petition or may authorize a petition to be filed by any complainant having sufficient knowledge of the matter to establish probable cause for the issuance of the petition. The intake officer shall accept and file a petition in which it is alleged that (i) the custody, visitation or support of a child is the subject of controversy or requires determination, (ii) a person has deserted, abandoned or failed to provide support or separate maintenance for any person in violation of law, or (iii) a child or such child's parent, guardian, legal custodian or other person standing in loco parentis is entitled to treatment, rehabilitation or other services which are required by law. If any such complainant does not file a petition, the intake officer may file it. In cases in which a child is alleged to be abused, neglected, in need of services, in need of supervision or delinquent, if the intake officer believes that probable cause does not exist, or that the authorization of a petition will not be in the best interest of the family or child or that the matter may be effectively dealt with by some agency other than the court, he may refuse to authorize the filing of a petition.
C. D. Prior to the filing of any petition alleging that a
juvenile is in need of supervision, the matter shall be reviewed by an intake
officer who shall determine whether the petitioner and the juvenile alleged to
be in need of supervision have utilized or attempted to utilize treatment and
services available in the community and have exhausted all appropriate
nonjudicial remedies which are available to them. When the intake officer
determines that the parties have not attempted to utilize available treatment
or services or have not exhausted all appropriate nonjudicial remedies which
are available, he shall refer the petitioner and the child alleged to be in
need of supervision to the appropriate agency, treatment facility or individual
to receive treatment or services, and a petition shall not be filed. Only after
the intake officer determines that the parties have made a reasonable effort to
utilize available community treatment or services, may he permit the petition
to be filed.
D. E. If the intake officer refuses to authorize a
petition relating to an offense which if committed by an adult would be
punishable as a Class 1 misdemeanor or as a felony, the complainant shall be
notified in writing at that time of the complainant's right to apply to a
magistrate for a warrant. If a magistrate determines that probable cause
exists, he shall issue a warrant returnable to the family court. The warrant
shall be delivered forthwith to the family court, and the intake officer shall
accept and file a petition founded upon the warrant. If the court is closed and
the magistrate finds that the criteria for detention or shelter care set forth
in § 16.1-248.1 have been satisfied, the child may be detained pursuant to
the warrant issued in accordance with this subsection. If the intake officer
refuses to authorize a petition relating to a child in need of services or in
need of supervision, a status offense, or a misdemeanor other than Class 1, his
decision is final.
Upon delivery to the family court of a warrant issued pursuant to subdivision 3 of § 16.1-256, the intake officer shall accept and file a petition founded upon the warrant.
E. F. The intake officer shall notify the attorney for
the Commonwealth of the filing of any petition which alleges facts of an
offense which would be a felony if committed by an adult.
E1. G. After a petition is filed
alleging that a juvenile committed an act which would be a crime if committed
by an adult, the intake officer shall, as soon as practicable, provide notice
by telephone of the filing of the petition and the nature of the offense to the
superintendent of the school division in which the petitioner alleges the
juvenile is or should be enrolled, provided the violation involves:
1. The unlawful purchase, possession or use of a weapon pursuant to Article 4 (§ 18.2-279 et seq.) of Chapter 7 of Title 18.2;
2. Homicide, pursuant to Article 1 (§ 18.2-30 et seq.) of Chapter 4 of Title 18.2;
3. Felonious assault and bodily wounding, pursuant to Article 4 (§ 18.2-51 et seq.) of Chapter 4 of Title 18.2;
4. Criminal sexual assault, pursuant to Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2;
5. Manufacture, sale, gift, distribution or possession of Schedule I or II controlled substances, pursuant to Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2;
6. Manufacture, sale or distribution of marijuana pursuant to Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2;
7. Arson and related crimes, pursuant to Article 1 (§ 18.2-77 et seq.) of Chapter 5 of Title 18.2; or
8. Burglary, pursuant to § 18.2-89.
Promptly after filing a petition the intake officer shall also mail notice, by first class mail, to the superintendent. The failure to provide information regarding the school in which the juvenile who is the subject of the petition may be enrolled shall not be grounds for refusing to file a petition.
The information provided to a division superintendent pursuant to this section may be disclosed only as provided in § 16.1-305.2.
F. H. The filing of a petition
shall not be necessary:
1. In the case of violations of the traffic laws, including offenses involving bicycles, hitchhiking and other pedestrian offenses, game and fish laws or a violation of the ordinance of any city regulating surfing or any ordinance establishing curfew violations or animal control violations. In such cases the court may proceed on a summons issued by the officer investigating the violation in the same manner as provided by law for adults. Additionally, an officer investigating a motor vehicle accident may, at the scene of the accident or at any other location where a juvenile who is involved in such an accident may be located, proceed on a summons in lieu of filing a petition.
2. In the case of seeking consent to apply for the issuance of a work permit pursuant to subdivision H of § 16.1-241.
3. In the case of a violation of § 18.2-266 or § 29.1-738, or the commission of any other alcohol-related offense, provided the child is released to the custody of a parent or legal guardian pending the initial court date. The officer releasing a child to the custody of a parent or legal guardian shall issue a summons to the child and shall also issue a summons requiring the parent or legal guardian to appear before the court with the child. Disposition of the charge shall be in the manner provided in § 16.1-278.8 or § 16.1-278.9. If the child so charged with a violation of § 18.2-266 or § 29.1-738 refuses to provide a sample of blood or breath or samples of both blood and breath for chemical analysis pursuant to §§ 18.2-268.1 through 18.2-268.12 or § 29.1-738.2, the provisions of these sections shall be followed except that the magistrate shall authorize execution of the warrant as a summons. The summons shall be served on a parent or legal guardian and the child, and a copy of the summons shall be forwarded to the court in which the violation of § 18.2-266 or § 29.1-738 is to be tried.
4. In cases of divorce, annulment or affirmation of marriage, separate maintenance, equitable distribution based on a foreign decree, and judicial review of school board actions and of hearing officer decisions.
5. In the case of offenses which, if committed by an adult would be punishable as Class 3 or Class 4 misdemeanor. In such cases the court may direct that an intake officer proceed as provided in § 16.1-237 on a summons issued by the officer investigating the violation in the same manner as provided by law for adults provided that notice of the summons to appear is mailed by the investigating officer within five days of the issuance of the summons to a parent or legal guardian of the juvenile.
G. I. Failure to comply with the
procedures set forth in this section shall not divest the family court of the
jurisdiction granted it in § 16.1-241.
§ 19.2-3.1. Personal appearance by two-way electronic video and audio communication; standards.
A. Where an appearance is required or permitted before a magistrate, intake officer or, prior to trial, before a judge, the appearance may be by (i) personal appearance before the magistrate, intake officer or judge or (ii) use of two-way electronic video and audio communication. If two-way electronic video and audio communication is used, a magistrate, intake officer or judge may exercise all powers conferred by law and all communications and proceedings shall be conducted in the same manner as if the appearance were in person, and any documents filed may be transmitted by electronically transmitted facsimile process. The facsimile may be served or executed by the officer or person to whom sent, and returned in the same manner, and with the same force, effect, authority, and liability as an original document. All signatures thereon shall be treated as original signatures.
B. Any two-way electronic video and audio communication system used for an appearance shall meet the following standards:
1. The persons communicating must simultaneously see and speak to one another;
2. The signal transmission must be live, real time;
3. The signal transmission must be secure from interception through lawful means by anyone other than the persons communicating; and
4. Any other specifications as may be promulgated by the Chief Justice of the Supreme Court.