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Abuse Laws
North Dakota
2001
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auto-scrolling links by statute.
North
Dakota Century Code
TITLE 14 DOMESTIC RELATIONS AND PERSONS
CHAPTER 14-07.1 DOMESTIC VIOLENCE
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14-07.1-01.
Definitions.
1. "Department" means the state department of health.
2.
"Domestic violence" includes physical harm, bodily injury, sexual
activity compelled by physical force, assault, or the infliction
of fear of imminent physical harm, bodily injury, sexual activity
compelled by physical force, or assault, not committed in self-defense,
on the complaining family or household members.
3.
"Domestic violence sexual assault organization" means a private,
nonprofit organization whose primary purpose is to provide emergency
housing, twenty-four hour crisis lines, advocacy, supportive
peer counseling, community education, and referral services
for victims of domestic violence and sexual assault.
4.
"Family or household member" means a spouse, family member,
former spouse, parent, child, persons related by blood or marriage,
persons who are in a dating relationship, persons who are presently
residing together or who have resided together in the past,
persons who have a child in common regardless of whether they
are or have been married or have lived together at any time,
and, for the purpose of the issuance of a domestic violence
protection order, any other person with a sufficient relationship
to the abusing person as determined by the court under section
14-07.1-02.
5.
"Health officer" means the state health officer of the department.
6.
"Law enforcement officer" means a public servant authorized
by law or by a government agency to enforce the law and to conduct
or engage in investigations of violations of law.
7.
"Willfully" means willfully as defined in section 12.1-02-02.
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14-07.1-02.
Domestic violence protection order.
1. An action for a protection order commenced by a verified
application alleging the existence of domestic violence may
be brought in district court by any family or household member
or by any other person if the court determines that the relationship
betweenthat person and the alleged abusing person is sufficient
to warrant the issuance of a domestic violence protection order.
An action may be brought under this section, regardless of whether
a petition for legal separation, annulment, or divorce has been
filed.
2.
Upon receipt of the application, the court shall order a hearing
to be held not later than fourteen days from the date of the
hearing order.
3.
Service must be made upon the respondent at least five days
prior to the hearing. If service cannot be made, the court may
set a new date.
4.
Upon a showing of actual or imminent domestic violence, the
court may enter a protection order after due notice and full
hearing. The relief provided by the court may include any or
all of the following:
a.
Restraining any party from threatening, molesting, injuring,
harassing, or having contact with any other person.
b.
Excluding either the respondent or any person with whom the
respondent lives from the dwelling they share, from the residence
of another person against whom the domestic violence is occurring,
or from a domestic violence care facility, if this exclusion
is necessary to the physical or mental well-being of the applicant
or others.
c.
Awarding temporary custody or establishing temporary visitation
rights with regard to minor children.
d.
Recommending or requiring that either or both parties undergo
counseling with a domestic violence program or other agency
that provides professional services that the court deems appropriate.
The court may request a report from the designated agency
within a time period established by the court. The costs of
the court-ordered initial counseling assessment and subsequent
reports must be borne by the parties or, if indigent, by the
respondent's county of residence.
e.
Requiring a party to pay such support as may be necessary
for the support of a party and any minor children of the parties
and reasonable attorneys' fees and costs.
f.
Awarding temporary use of personal property, including motor
vehicles, to either party.
g.
Requiring the respondent to surrender for safekeeping any
firearm or other specified dangerous weapon, as defined in
section 12.1-01-04, in the respondent's immediate possession
or control or subject to the respondent's immediate control,
if the court has probable cause to believe that the respondent
is likely to use, display, or threaten to use the firearm
or other dangerous weapon in any further acts of violence.
If so ordered, the respondent shall surrender the firearm
or other dangerous weapon to the sheriff, or the sheriff's
designee, of the county in which the respondent resides or
to the chief of police, or the chief's designee, of the city
in which the respondent resides.
5.
A court of competent jurisdiction may issue a dual protection
order restricting both parties involved in a domestic violence
dispute if each party has commenced an action pursuant to subsection
1 and the court, after a hearing, has made specific written
findings of fact that both parties committed acts of domestic
violence and that neither party acted in self-defense. The order
must clearly define the responsibilities and restrictions placed
upon each party so that a law enforcement officer may readily
determine which party has violated the order if a violation
is alleged to have occurred.
6.
The court may amend its order or agreement at any time upon
subsequent petition filed by either party.
7.
No order or agreement under this section affects title to any
real property in any matter.
8.
The petition for an order for protection must contain a statement
listing each civil or criminal action involving both parties.
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14-07.1-02.1.
Allegation of domestic violence - Effect.
If
the court finds that a party's allegation of domestic violence
in a domestic violence protection order proceeding, divorce
proceeding, child custody proceeding, child visitation proceeding,
separation proceeding, or termination of parental rights proceeding
is false and not made in good faith, the court shall order the
party making the false allegation to pay court costs and reasonable
attorney's fees incurred by the other party in responding to
the allegation.
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14-07.1-02.2.
Foreign domestic violence protection orders - Full faith
and credit recognition and enforcement.
Subject
to subsection 1, a domestic violence protection order issued
by a court of competent jurisdiction of another state, Indian
tribe, the District of Columbia, or a commonwealth, territory,
or possession of the United States must be accorded full faith
and credit by the courts of this state and enforced as if the
order was issued by a court in this state.
1.
A foreign domestic violence protection order is enforceable
in this state if all of the following are satisfied:
a.
The respondent received notice of the order in compliance
with requirements of the issuing jurisdiction;
b.
The order is in effect in the issuing jurisdiction;
c.
The issuing court had jurisdiction over the parties and the
subject matter;
d.
The respondent was afforded reasonable notice and opportunity
to be heard sufficient to protect that person's right to due
process. In the case of ex parte orders, notice and opportunity
to be heard must have been provided within the time required
by the law of the issuing jurisdiction, and in any event within
a reasonable time after the order was issued, sufficient to
protect the respondent's due process rights. Failure to provide
reasonable notice and opportunity to be heard is an affirmative
defense to any prosecution for violation of the foreign protection
order or any process filed seeking enforcement of the order;
and
e.
If the order also provides protection for the respondent,
a petition, application, or other written pleading was filed
with the issuing court seeking such an order and the issuing
court made specific findings that the respondent was entitled
to the order.
2.
A person entitled to protection under a foreign domestic violence
protection order may file the foreign order in the office of
any clerk of district court in this state. The person filing
the order shall also file with the clerk of district court an
affidavit certifying the validity and status of the foreign
order and attesting to the person's belief that the order has
not been amended, rescinded, or superseded by any orders from
a court of competent jurisdiction. If a foreign order is filed
under this subsection, the clerk of district court shall transmit
a copy of the order to the appropriate local law enforcement
agency as provided under section 14-07.1-03. Filing of a foreign
order under this subsection is not a prerequisite to the order's
enforcement in this state. A fee for filing the foreign order
may not be assessed.
3.
A law enforcement officer may rely upon any foreign domestic
violence protection order that has been provided to the officer
by any source. The officer may make arrests for violation of
the order in the same manner as for violation of a protection
order issued in this state. A law enforcement officer may rely
on the statement of the person protected by the order that the
order is in effect and that the respondent was personally served
with a copy of the order. A law enforcement officer acting in
good faith and without malice in enforcing a foreign protection
order under this section is immune from civil or criminal liability
for any action arising in connection with the enforcement of
the protection order.
4.
Any person who intentionally provides a law enforcement officer
with a copy of a foreign domestic violence protection order
known by that person to be false or invalid, or who denies having
been served with a protection order when that person has been
served with such an order, is guilty of a class A misdemeanor.
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14-07.1-03.
Temporary protection order - Copy to law enforcement agency.
1. If an application under section 14-07.1-02 alleges an immediate
and present danger of domestic violence to the applicant, based
upon an allegation of a recent incident of actual domestic violence,
the court may grant an ex parte temporary protection order,
pending a full hearing, granting such relief as the court deems
proper.
2.
An ex parte temporary protection order may include:
a.
Restraining any party from having contact with or committing
acts of domestic violence on another person.
b.
Excluding the respondent or any person with whom the respondent
lives from the dwelling they share, from the residence of
another person, or from a domestic violence shelter care facility.
c.
Awarding temporary custody or establishing temporary visitation
rights with regard to minor children.
d.
Requiring the respondent to surrender for safekeeping any
firearm or other specified dangerous weapon, as defined in
section 12.1-01-04, in the respondent's immediate possession
or control or subject to the respondent's immediate control,
if the court has probable cause to believe that the respondent
is likely to use, display, or threaten to use the firearm
or other dangerous weapon in any further acts of violence.
If so ordered, the respondent shall surrender the firearm
or other dangerous weapon to the sheriff, or the sheriff's
designee, of the county in which the respondent resides or
the chief of police, or the chief's designee, of the city
in which the respondent resides.
3.
An ex parte temporary protection order remains in effect, in
the court's discretion, for not more than thirty days, unless
otherwise terminated by the court.
4.
A full hearing as provided by section 14-07.1-02 must be set
for not later than fourteen days from the issuance of the temporary
order. The respondent must be served forthwith with a copy of
the ex parte order along with a copy of the application and
notice of the date set for the hearing.
5.
The clerk of court shall transmit a copy of each temporary protection
order, or extension, modification, or termination thereof, by
the close of the business day on which the order was granted
to the local law enforcement agency with jurisdiction over the
residence of the applicant or over the residence at which the
actual domestic violence that is the subject of the temporary
protection order has occurred, or is likely to occur, if requested
by the applicant and approved by the court. Each appropriate
law enforcement agency may make available information as to
the existence and current status of any temporary protection
order issued pursuant to this section, through an existing verification
system, to any law enforcement officer responding to the scene
of reported domestic violence.
6.
Fees for filing and service of process may not be assessed to
the petitioner for any proceeding seeking relief under chapter
14-07.1.
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14-07.1-03.1.
Notification of stalking law.
When
an order is issued under section 14-07.1-02 or 14-07.1-03, the
order must include or have attached to it a copy of section
12.1-17-07.1.
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14-07.1-04.
Assistance of law enforcement officer in service or execution.
When
an order is issued upon request of the applicant under section
14-07.1-02 or 14-07.1-03, the court shall order the sheriff
or other appropriate law enforcement officer to accompany the
applicant and assist in placing the applicant in possession
of the dwelling or residence, or otherwise assist in execution
or service of the protection order, which may include assistance
in referral to a domestic violence shelter care facility.
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14-07.1-05.
Right to apply for relief.
A
person's right to apply for relief under section 14-07.1-02
or 14-07.1-03 is not affected if the person leaves the residence
or dwelling to avoid domestic violence. The court may not require
security or bond from any party unless the court deems it necessary
in exceptional cases.
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14-07.1-05.1.
Appointment of guardian ad litem for minor.
The
court, upon the request of either party or upon its own motion,
may appoint a guardian ad litem in an action for a protection
order to represent a minor concerning custody, support, or visitation
if either party or the court has reason for special concern
as to the immediate future of the minor. The guardian ad litem
may be appointed at the time of a temporary protection order
or at any time before the full hearing. The role of the guardian
ad litem consists of investigation and making a recommendation
and report to the court. At no time may the involvement of the
guardian ad litem alter the requirements set forth in section
14-07.1-03. The appointment of the guardian ad litem expires
immediately after the full hearing unless the court retains
the right, upon specific finding of need, to continue the appointment
of a guardian ad litem to participate in visitation. The guardian
ad litem shall have access to records before the court except
as otherwise provided by law. The court may direct either or
both parties to pay the guardian ad litem fees established by
the court. If neither party is able to pay the fees, the court,
after notice to the state's attorney of the county of venue,
may direct the fees to be paid, in whole or in part, by the
county of venue. The court may direct either or both parties
to reimburse the county, in whole or in part, for the payment.
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14-07.1-06.
Penalty for violation of a protection order.
Whenever
a protection order is granted under section 14-07.1-02 or 14-07.1-03
and the respondent or person to be restrained has been served
a copy of the order, a violation of the order is a class A misdemeanor
and also constitutes contempt of court. A second or subsequent
violation of a protection order is a class C felony. Violation
of a foreign protection order entitled to full faith and credit
recognition under section 14-07.1-02.2 is a class A misdemeanor.
A second or subsequent violation of such an order is a class
C felony.
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14-07.1-07.
Nonexclusive remedy.
Any
proceeding under sections 14-07.1-01 through 14-07.1-08 is in
addition to any other civil or criminal remedies.
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14-07.1-08.
Emergency relief.
When
the court is unavailable an application may be filed before
a local magistrate, as defined by subsection 3 of section 29-01-14,
who may grant relief in accordance with section 14-07.1-03,
upon good cause shown in an ex parte proceeding, if it is deemed
necessary to protect the applicant or others from domestic violence.
Immediate and present danger of domestic violence to the applicant
or others constitutes good cause for purposes of this section.
Any order issued under this section expires seventy-two hours
after its issuance, unless continued by the court, or the local
magistrate in the event of continuing unavailability of the
court. At that time, the applicant may seek a temporary order
from the court. Any order issued under this section and any
documentation in support of the order must be immediately certified
to the court. The certification to the court has the effect
of commencing proceedings under section 14-07.1-02.
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14-07.1-09.
Immunity from liability - Penalty for false reports.
Repealed
by S.L. 1989, ch. 589, § 16.
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14-07.1-10.
Arrest procedures.
1. If a law enforcement officer has probable cause to believe
that a person has committed a crime involving domestic violence,
whether the offense is a felony or misdemeanor, and whether
or not the crime was committed in the presence of the officer,
the law enforcement officer shall presume that arresting the
person is the appropriate response.
2.
A law enforcement officer investigating a crime involving domestic
violence may not threaten, suggest, or otherwise indicate, for
the purpose of discouraging requests for law enforcement intervention,
that family or household members will be arrested. When complaints
are received from two or more family or household members, the
officer shall evaluate each complaint separately, including
the comparative severity of injuries involved, to determine
whether to seek an arrest warrant.
3.
An individual arrested for a crime involving domestic violence
may not be released on bail or on the individual's personal
recognizance unless the individual has made a personal appearance
before a magistrate pursuant to rule 5 of the North Dakota Rules
of Criminal Procedure.
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14-07.1-11.
Arrest without warrant.
1. A law enforcement officer shall arrest a person without a
warrant if the person has committed the offense of violating
a protection order under section 14-07.1-06, whether or not
the violation was committed in the presence of the officer.
2.
A law enforcement officer may arrest a person without a warrant
if the arrest is made within twelve hours from the time the
officer determines there is probable cause to arrest for an
assault of a family or household member as defined in section
14-07.1-01, whether or not the assault took place in the presence
of the officer. After twelve hours has elapsed, the officer
must secure an arrest warrant before making an arrest. A law
enforcement officer may not arrest a person pursuant to this
subsection without first observing that there has been recent
physical injury to, or impairment of physical condition of,
the alleged victim.
3.
A law enforcement officer may not be held criminally or civilly
liable for making an arrest pursuant to this section if the
officer acts in good faith on probable cause and without malice.
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14-07.1-12.
Reports.
A
law enforcement officer shall make a written report of the investigation
of any allegation of domestic violence regardless of whether
an arrest was made. The officer shall submit the report to the
officer's supervisor or to any other person to whom the officer
is required to submit similar reports.
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14-07.1-13.
Order prohibiting contact - Penalty.
1. If a person charged with or arrested for a crime involving
domestic violence is released from custody before arraignment
or trial, the court authorizing the release of the person shall
consider and may issue, if there is no outstanding restraining
or protection order prohibiting the person from having contact
with the victim, an order prohibiting the person from having
contact with the victim. The order must contain the court's
directives and must inform the person that any violation of
the order constitutes a criminal offense. The court shall provide
a copy of the order to the victim. The court shall determine
at the time of the person's arraignment whether an order issued
pursuant to this section will be extended. If the court issues
an order pursuant to this section prior to the time the person
is charged, the order expires at the person's arraignment or
within seventy-two hours of issuance if charges against the
person are not filed.
2.
If the court has probable cause to believe that the person charged
or arrested is likely to use, display, or threaten to use a
firearm or dangerous weapon as defined in section 12.1-01-04
in any further acts of violence, the court shall require that
the person surrender for safekeeping any firearm or specified
dangerous weapon in the person's immediate possession or control,
or subject to the person's immediate possession or control,
to the sheriff of the county or chief of police of the city
in which the person resides.
3.
Whenever an order prohibiting contact is issued, modified, extended,
or terminated under this section, the clerk of court shall forward
a copy of the order on or before the next business day to the
appropriate law enforcement agency specified in the order. Upon
receipt of the copy of the order, the law enforcement agency
shall enter the order for one year or until the date of expiration
specified by the order into any information system available
in the state that is used by law enforcement agencies to list
outstanding warrants. The order is enforceable in any jurisdiction
in this state.
4.
A person who willfully violates a court order issued under this
section is guilty of a class A misdemeanor.
5.
A law enforcement officer shall arrest a person without a warrant
if the officer determines there is probable cause that the person
has committed the offense of violating an order prohibiting
contact under this section, whether or not the violation was
committed in the presence of the officer. A law enforcement
officer who acts in good faith on probable cause and without
malice is immune from any civil or criminal liability for making
an arrest under this subsection.
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14-07.1-14.
Law enforcement guidelines and training.
1. Every law enforcement agency shall develop and implement,
with assistance from the criminal justice training and statistics
division, specific operational guidelines for arrest policies
and procedures in crimes involving domestic violence. The guidelines
must include procedures for the conduct of criminal investigations,
procedures for arrests and victim assistance by law enforcement
officers, procedures concerning the provision of services to
victims, and any additional procedures as may be necessary to
carry out sections 14-07.1-02 through 14-07.1-14.
2.
The peace officers standards and training board shall establish,
in conjunction with the state's attorneys association, an education
and training program for law enforcement officers and state's
attorneys concerning the handling of crimes involving domestic
violence. The training must stress the enforcement of criminal
laws in domestic violence cases and the use of community resources.
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14-07.1-15.
Domestic violence and sexual assault prevention fund established.
The domestic violence and sexual assault prevention fund is
a special fund in the state treasury. The moneys accumulated
in the fund are allocated to the department for distribution
as provided by this chapter and within the limits of legislative
appropriation. The fund is not subject to section 54-44.1-11.
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14-07.1-16.
Grants - Eligibility - Conditions - Limitation.
The
department shall administer moneys in the domestic violence
and sexual assault prevention fund for grants to domestic violence
sexual assault organizations as defined in section 14-07.1-01.
Up to ten percent of the fund may be allocated to the state
domestic violence sexual assault coalition, as recognized by
the state department of health. A direct service provider agency
that is an eligible entity must receive at least twenty-five
percent of its funding from one or more local, municipal, or
county sources, either in cash or in kind. Grants are renewable
within the limits of legislative appropriation, if the applicant
continues to meet the eligibility criteria established by this
section and rules adopted by the department. Grant application
deadlines may be included in any rules adopted to implement
this section.
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14-07.1-17.
Duties of health officer.
The
health officer shall:
1.
Respond to all applicants within sixty days after the deadline
for receipt of applications, whether or not the applicant is
eligible for funds.
2.
Ensure that no more than ten percent of the moneys allocated
to the domestic violence prevention fund in any biennium is
expended for departmental administration of the grant program.
3.
Distribute grants to eligible applicants in accordance with
the purposes of sections 14-07.1-15 through 14-07.1-18.
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14-07.1-18.
Domestic violence or sexual assault program records - Confidentiality
-Exceptions - Penalty.
1. All agents, employees, and volunteers participating in a
domestic violence or sexual assault program shall maintain the
confidentiality of the:
a.
Address, telephone number, and other identifying information
of a shelter, safe home, and place of emergency safe housing; b.
Name, address, telephone number, personally identifying information,
and case file or history of any client receiving services
from a domestic violence or sexual assault program; and
c.
Name, address, telephone number, and other identifying information
of an agent, employee, or volunteer providing services under
a domestic violence or sexual assault program.
2.
The information described in subsection 1 is not subject to
section 44-04-18 and may not be disclosed unless:
a.
A client consents to the release of information that relates
only to that client or the client's dependents; b.
The agent, employee, or volunteer operating a domestic violence
or sexual assault program determines the disclosure of the
information necessary for the efficient and safe operation
of a domestic violence or sexual assault program; or for the
protection of the safety of an employee, agent, volunteer,
or client of a domestic violence or sexual assault program;
or for the protection of a third party reasonably thought
to be in need of protection;
c.
A court of competent jurisdiction orders the disclosure after
an in-camera review and a written finding by the court that
the information directly and specifically relates to a determination
of child abuse and neglect under chapter 50-25.1 or termination
of parental rights under sections 14-15-19, 27-20-44, 27-20-45,
27-20-46, 27-20-47, and 27-20-48; or
d.
An agent, employee, or volunteer working with a domestic violence
or sexual assault program has knowledge or reasonable cause
to suspect a child has been abused or neglected as defined
by section 50-25.1-02. 3. Any person who violates this section
is guilty of an infraction.
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