2013 Kentucky Revised Statutes CHAPTER 403 - DISSOLUTION OF MARRIAGE -- CHILD CUSTODY 403.761 Substantial violation of domestic violence order -- Hearing -- Imposition of global positioning monitoring in lieu of imprisonment -- Cost to be paid by respondent -- Exceptions -- Violation of global positioning monitoring requirements.
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403.761 Substantial violation of domestic violence order -- Hearing -Imposition of global positioning monitoring in lieu of imprisonment -Cost to be paid by respondent -- Exceptions -- Violation of global
positioning monitoring requirements.
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As used in this section, "substantial violation" means a violation of a domestic
violence order that has resulted in one (1) or more of the following acts by the
respondent against the petitioner, minor child of a petitioner, family member, or
member of an unmarried couple protected in the order:
(a) An assault prohibited by KRS Chapter 508;
(b) Menacing as prohibited by KRS 508.050;
(c) Terroristic threatening as prohibited by KRS Chapter 508;
(d) Stalking as prohibited by KRS Chapter 508;
(e) Wanton endangerment as prohibited by KRS Chapter 508;
(f) Kidnapping or a related offense as prohibited by KRS Chapter 509;
(g) A sexual offense as prohibited by KRS Chapter 510 other than indecent
exposure;
(h) Burglary as prohibited by KRS Chapter 511;
(i) Destruction or damage to property as prohibited by KRS Chapter 512;
(j) Theft as prohibited by KRS Chapter 514;
(k) Harassment or harassing communications as prohibited by KRS Chapter
525; or
(l) Any felony offense against the petitioner, minor child of the petitioner,
family member, or member of an unmarried couple protected in the order.
Following a report of an alleged substantial violation of a domestic violence
order by a respondent and prior to any civil hearing on the alleged violation of
the order, the court shall obtain an updated report of the respondent's Kentucky
criminal history from the Administrative Office of the Courts or the Department
of Kentucky State Police and shall obtain from the Administrative Office of the
Courts the history of Kentucky Emergency Protective Orders and Domestic
Violence Orders against the respondent, together with any violations of those
orders.
Following an alleged substantial violation of a domestic violence order, the
court shall hold a hearing to determine if the violation occurred, and if the
violation occurred, what sanctions the court may apply. At the hearing the court
shall explain the sanctions which may be imposed to the petitioner and the
respondent. The court shall explain to the petitioner that the court may require
a respondent who has committed a substantial violation of the domestic
violence order to wear a global positioning monitoring system device in lieu of
imprisoning the respondent and, except as provided in this section, to pay the
costs associated with operating that system in relation to the respondent and
the costs associated with operating the system in relation to the petitioner if the
petitioner elects to participate.
Before imposing global positioning monitoring, the court shall provide to the
petitioner information regarding:
(a)
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The petitioner's right to participate in a global positioning monitoring
system or to refuse to participate in that system and the procedure for
requesting that the court terminate the petitioner's participation;
(b) The manner in which the global positioning monitoring system technology
functions and the risks and limitations of that technology, and the extent
to which the system will track and record the respondent's location and
movements;
(c) Any locations that the respondent is ordered to refrain from going into or
near and the minimum distances, if any, that the respondent shall
maintain from those locations;
(d) Any sanctions that the court may impose on the respondent for violating,
in the future, a condition of the domestic violence order imposed under
this section;
(e) The procedure that the petitioner is to follow, and support services
available to assist the petitioner, including but not limited to a designated
person or office to notify if the respondent violates a condition of the
domestic violence order or if the global positioning monitoring equipment
of the respondent or of the petitioner fails; and
(f) Community services available to assist the petitioner in obtaining shelter,
counseling, education, child care, legal representation, and other
assistance available to address the consequences of domestic violence.
Prior to ordering the respondent to wear a global positioning monitoring system
device the court shall provide the respondent an opportunity to controvert the
information provided by the petitioner or any other source and to provide to the
court the respondent's reasons why the respondent should not be ordered to
wear a global positioning monitoring system device.
If the court orders the respondent to wear a global positioning monitoring
system device, in addition to the information described in subsection (4) of this
section, the court shall provide to the petitioner who participates in a global
positioning monitoring system under this section, the name and telephone
number of an appropriate local law enforcement agency in the county in which
the order is issued whom the petitioner may call to request immediate
assistance if the respondent violates a condition of the domestic violence order
imposed pursuant to KRS 403.750 and this section. If the local law
enforcement agency does not provide service twenty-four (24) hours per day,
seven (7) days per week, the petitioner shall be instructed to call the local
public safety answering point using the 911 telephone number.
If the petitioner has requested that the respondent be ordered to wear a global
positioning monitoring system device, the court shall, prior to ordering the
respondent to wear a global positioning monitoring system device under this
section:
(a) Consider the likelihood that without the utilization of a global positioning
monitoring system the respondent will seek to kill, assault, stalk, harass,
menace, or otherwise threaten the petitioner, minor child of the petitioner,
family member, or member of an unmarried couple protected in the order;
and
(b)
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Enter a determination of findings of fact and reasons as to why the
petitioner's request for the respondent to be ordered to participate in
global positioning monitoring is being granted or denied.
A petitioner may request that the court terminate the petitioner's participation in
a global positioning monitoring system at any time.
(a) When a court determines that the respondent shall wear a global
positioning monitoring system device, the court shall notify the
respondent, the petitioner, and the entity providing global positioning
monitoring system services of:
1.
The fact that global positioning monitoring system participation has
been ordered;
2.
The cost that the respondent is to pay to the entity providing the
global positioning monitoring system services, including but not
limited to the amount to be paid, the frequency of the payments, the
location to which the payments shall be sent, and the duration of the
payments;
3.
The cost of the administrative fee that the respondent is to pay to
the county or counties providing the monitoring service;
4.
The restrictions on the respondent with regard to locations which the
respondent is not to go into or near and the specific distances
contained in the order;
5.
The permitted exceptions to the restrictions on the respondent
which relate to permitted travel by the respondent which may bring
the respondent near or into a location where the respondent
normally would be prohibited from going into or near;
6.
The duration of time that the respondent shall wear the device which
shall not exceed the duration of the underlying domestic violence
order but which may be shorter than the underlying domestic
violence order. The date of expiration of the requirement to wear the
device shall be specified in the order;
7.
The notifications to be made in the event that the respondent
violates the domestic violence order; and
8.
Such other information as the court deems appropriate.
(b) If the court determines that a respondent is indigent, the court may,
based on a sliding scale established by the Supreme Court of Kentucky
by rule, require the respondent to pay the costs imposed under this
section in an amount that is less than the full amount of the costs
associated with operating the global positioning monitoring system in
relation to the respondent or providing the petitioner with an electronic
receptor device.
(c) If a respondent pays to an entity that operates a global positioning
monitoring system the amount ordered by the court under this subsection,
the entity shall accept the amount as payment in full. Neither the
Commonwealth, nor the Court of Justice nor the county, urban-county,
charter county, or consolidated local government shall be responsible for
payment of any costs associated with operating the global positioning
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monitoring system in relation to an indigent respondent or petitioner.
(d) A court that imposes a condition described by this section shall order the
entity that operates the global positioning monitoring system to
immediately notify the petitioner, the court, and the appropriate local law
enforcement agency named in the order if a respondent violates a
condition of the domestic violence order imposed under this section or
KRS 403.750.
The provisions of this section do not limit the authority of a court to impose any
other reasonable conditions authorized by KRS 403.740, 403.750, or 403.747.
(a) A respondent who has been ordered by a court to wear a global
positioning monitoring system monitoring device pursuant to this section
shall not, without written permission from the court issuing the order or a
higher court to which the issuance of the order has been appealed:
1.
Fail to wear the device;
2.
Remove a device that the respondent has been ordered to wear; or
3.
Tamper with or destroy a device that the respondent has been
ordered to wear.
(b) A respondent who violates paragraph (a) of this subsection shall be guilty
of a Class D felony.
(c) The provisions of this section shall not apply to a respondent who, upon
the expiration of the order that required the respondent to wear the global
positioning monitoring system device, permits the entity providing the
monitoring to remove the device.
A person, county, or other organization may voluntarily agree to pay all or a
portion of a defendant's monitoring costs specified in this section.
(a) The provisions of this section shall not prohibit a court from imposing any
other authorized sanction for a substantial violation of a domestic violence
order.
(b) The provisions of this section shall not prohibit a court from imposing any
authorized sanction, other than ordering the respondent to wear a global
positioning system monitoring device, for a violation of a domestic
violence order which does not constitute a substantial violation as defined
in this section.
Effective:July 15, 2010
History: Created 2010 Ky. Acts ch. 170, sec. 7, effective July 15, 2010.
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