2006 Code of Virginia § 16.1-241 - Jurisdiction; consent for abortion
16.1-241. Jurisdiction; consent for abortion.
The judges of the juvenile and domestic relations district court elected orappointed under this law shall be conservators of the peace within thecorporate limits of the cities and the boundaries of the counties for whichthey are respectively chosen and within one mile beyond the limits of suchcities and counties. Except as hereinafter provided, each juvenile anddomestic relations district court shall have, within the limits of theterritory for which it is created, exclusive original jurisdiction, andwithin one mile beyond the limits of said city or county, concurrentjurisdiction with the juvenile court or courts of the adjoining city orcounty, over all cases, matters and proceedings involving:
A. The custody, visitation, support, control or disposition of a child:
1. Who is alleged to be abused, neglected, in need of services, in need ofsupervision, a status offender, or delinquent except where the jurisdictionof the juvenile court has been terminated or divested;
2. Who is abandoned by his parent or other custodian or who by reason of theabsence or physical or mental incapacity of his parents is without parentalcare and guardianship;
2a. Who is at risk of being abused or neglected by a parent or custodian whohas been adjudicated as having abused or neglected another child in the careof the parent or custodian;
3. Whose custody, visitation or support is a subject of controversy orrequires determination. In such cases jurisdiction shall be concurrent withand not exclusive of courts having equity jurisdiction, except as provided in 16.1-244;
5. Where the termination of residual parental rights and responsibilities issought. In such cases jurisdiction shall be concurrent with and not exclusiveof courts having equity jurisdiction, as provided in 16.1-244; and
6. Who is charged with a traffic infraction as defined in 46.2-100.
In any case in which the juvenile is alleged to have committed a violentjuvenile felony enumerated in subsection B of 16.1-269.1, and for anycharges ancillary thereto, the jurisdiction of the juvenile court shall belimited to conducting a preliminary hearing to determine if there is probablecause to believe that the juvenile committed the act alleged and that thejuvenile was 14 years of age or older at the time of the commission of thealleged offense, and any matters related thereto. In any case in which thejuvenile is alleged to have committed a violent juvenile felony enumerated insubsection C of 16.1-269.1, and for all charges ancillary thereto, if theattorney for the Commonwealth has given notice as provided in subsection C of 16.1-269.1, the jurisdiction of the juvenile court shall be limited toconducting a preliminary hearing to determine if there is probable cause tobelieve that the juvenile committed the act alleged and that the juvenile was14 years of age or older at the time of the commission of the allegedoffense, and any matters related thereto. A determination by the juvenilecourt following a preliminary hearing pursuant to subsection B or C of 16.1-269.1 to certify a charge to the grand jury shall divest the juvenilecourt of jurisdiction over the charge and any ancillary charge. In any casein which a transfer hearing is held pursuant to subsection A of 16.1-269.1,if the juvenile court determines to transfer the case, jurisdiction of thejuvenile court over the case shall be divested as provided in 16.1-269.6.
In all other cases involving delinquent acts, and in cases in which anancillary charge remains after a violent juvenile felony charge has beendismissed or a violent juvenile felony has been reduced to a lesser offensenot constituting a violent juvenile felony, the jurisdiction of the juvenilecourt shall not be divested unless there is a transfer pursuant to subsectionA of 16.1-269.1.
The authority of the juvenile court to adjudicate matters involving thecustody, visitation, support, control or disposition of a child shall not belimited to the consideration of petitions filed by a mother, father or legalguardian but shall include petitions filed at any time by any party with alegitimate interest therein. A party with a legitimate interest shall bebroadly construed and shall include, but not be limited to, grandparents,stepparents, former stepparents, blood relatives and family members. A partywith a legitimate interest shall not include any person (i) whose parentalrights have been terminated by court order, either voluntarily orinvoluntarily, (ii) whose interest in the child derives from or through aperson whose parental rights have been terminated by court order, eithervoluntarily or involuntarily, including, but not limited to, grandparents,stepparents, former stepparents, blood relatives and family members, if thechild subsequently has been legally adopted, except where a final order ofadoption is entered pursuant to 63.2-1241, or (iii) who has been convictedof a violation of subsection A of 18.2-61, 18.2-63, subsection B of 18.2-366, or an equivalent offense of another state, the United States, orany foreign jurisdiction, when the child who is the subject of the petitionwas conceived as a result of such violation. The authority of the juvenilecourt to consider a petition involving the custody of a child shall not beproscribed or limited where the child has previously been awarded to thecustody of a local board of social services.
B. The admission of minors for inpatient treatment in a mental healthfacility in accordance with the provisions of Article 16 ( 16.1-335 et seq.)of this chapter and the involuntary admission of a person with mental illnessor judicial certification of eligibility for admission to a training centerfor persons with mental retardation in accordance with the provisions ofChapters 1 ( 37.2-100 et seq.) and 8 ( 37.2-800 et seq.) of Title 37.2.Jurisdiction of the involuntary admission and certification of adults shallbe concurrent with the general district court.
C. Except as provided in subsections D and H hereof, judicial consent to suchactivities as may require parental consent may be given for a child who hasbeen separated from his parents, guardian, legal custodian or other personstanding in loco parentis and is in the custody of the court when suchconsent is required by law.
D. Judicial consent for emergency surgical or medical treatment for a childwho is neither married nor has ever been married, when the consent of hisparent, guardian, legal custodian or other person standing in loco parentisis unobtainable because such parent, guardian, legal custodian or otherperson standing in loco parentis (i) is not a resident of the Commonwealth,(ii) has his whereabouts unknown, (iii) cannot be consulted with promptness,reasonable under the circumstances, or (iv) fails to give such consent orprovide such treatment when requested by the judge to do so.
E. Any person charged with deserting, abandoning or failing to providesupport for any person in violation of law.
F. Any parent, guardian, legal custodian or other person standing in locoparentis of a child:
1. Who has been abused or neglected;
3. Who has been adjudicated in need of services, in need of supervision, ordelinquent, if the court finds that such person has by overt act or omissioninduced, caused, encouraged or contributed to the conduct of the childcomplained of in the petition.
G. Petitions filed by or on behalf of a child or such child's parent,guardian, legal custodian or other person standing in loco parentis for thepurpose of obtaining treatment, rehabilitation or other services that arerequired by law to be provided for that child or such child's parent,guardian, legal custodian or other person standing in loco parentis.Jurisdiction in such cases shall be concurrent with and not exclusive of thatof courts having equity jurisdiction as provided in 16.1-244.
H. Judicial consent to apply for a work permit for a child when such child isseparated from his parents, legal guardian or other person standing in locoparentis.
I. The prosecution and punishment of persons charged with ill-treatment,abuse, abandonment or neglect of children or with any violation of law thatcauses or tends to cause a child to come within the purview of this law, orwith any other offense against the person of a child. In prosecution forfelonies over which the court has jurisdiction, jurisdiction shall be limitedto determining whether or not there is probable cause.
J. All offenses in which one family or household member is charged with anoffense in which another family or household member is the victim and alloffenses under 18.2-49.1.
In prosecution for felonies over which the court has jurisdiction,jurisdiction shall be limited to determining whether or not there is probablecause. Any objection based on jurisdiction under this subsection shall bemade before a jury is impaneled and sworn in a jury trial or, in a nonjurytrial, before the earlier of when the court begins to hear or receiveevidence or the first witness is sworn, or it shall be conclusively waivedfor all purposes. Any such objection shall not affect or be grounds forchallenging directly or collaterally the jurisdiction of the court in whichthe case is tried.
K. Petitions filed by a natural parent, whose parental rights to a child havebeen voluntarily relinquished pursuant to a court proceeding, to seek areversal of the court order terminating such parental rights. No suchpetition shall be accepted, however, after the child has been placed in thehome of adoptive parents.
L. Any person who seeks spousal support after having separated from hisspouse. A decision under this subdivision shall not be res judicata in anysubsequent action for spousal support in a circuit court. A circuit courtshall have concurrent original jurisdiction in all causes of action underthis subdivision.
N. Any person who escapes or remains away without proper authority from aresidential care facility in which he had been placed by the court or as aresult of his commitment to the Virginia Department of Juvenile Justice.
O. Petitions for emancipation of a minor pursuant to Article 15 ( 16.1-331et seq.) of this chapter.
P. Petitions for enforcement of administrative support orders enteredpursuant to Chapter 19 ( 63.2-1900 et seq.) of Title 63.2, or by anotherstate in the same manner as if the orders were entered by a juvenile anddomestic relations district court upon the filing of a certified copy of suchorder in the juvenile and domestic relations district court.
Q. Petitions for a determination of parentage pursuant to Chapter 3.1 (20-49.1 et seq.) of Title 20.
R. Petitions for the purpose of obtaining an emergency protective orderpursuant to 16.1-253.4.
T. Petitions to enforce any request for information or subpoena that is notcomplied with or to review any refusal to issue a subpoena in anadministrative appeal regarding child abuse and neglect pursuant to 63.2-1526.
U. Petitions filed in connection with parental placement adoption consenthearings pursuant to 63.2-1233. Such proceedings shall be advanced on thedocket so as to be heard by the court within 10 days of filing of thepetition, or as soon thereafter as practicable so as to provide the earliestpossible disposition.
V. Petitions filed by a juvenile seeking judicial authorization for aphysician to perform an abortion if a minor elects not to seek consent of anauthorized person.
After a hearing, a judge shall issue an order authorizing a physician toperform an abortion, without the consent of any authorized person, if hefinds that (i) the minor is mature enough and well enough informed to makeher abortion decision, in consultation with her physician, independent of thewishes of any authorized person, or (ii) the minor is not mature enough orwell enough informed to make such decision, but the desired abortion would bein her best interest.
If the judge authorizes an abortion based on the best interests of the minor,such order shall expressly state that such authorization is subject to thephysician or his agent giving notice of intent to perform the abortion;however, no such notice shall be required if the judge finds that such noticewould not be in the best interest of the minor. In determining whether noticeis in the best interest of the minor, the judge shall consider the totalityof the circumstances; however, he shall find that notice is not in the bestinterest of the minor if he finds that (i) one or more authorized personswith whom the minor regularly and customarily resides is abusive orneglectful, and (ii) every other authorized person, if any, is either abusiveor neglectful or has refused to accept responsibility as parent, legalguardian, custodian or person standing in loco parentis.
The minor may participate in the court proceedings on her own behalf, and thecourt may appoint a guardian ad litem for the minor. The court shall advisethe minor that she has a right to counsel and shall, upon her request,appoint counsel for her.
Notwithstanding any other provision of law, the provisions of this subsectionshall govern proceedings relating to consent for a minor's abortion. Courtproceedings under this subsection and records of such proceedings shall beconfidential. Such proceedings shall be given precedence over other pendingmatters so that the court may reach a decision promptly and without delay inorder to serve the best interests of the minor. Court proceedings under thissubsection shall be heard and decided as soon as practicable but in no eventlater than four days after the petition is filed.
An expedited confidential appeal to the circuit court shall be available toany minor for whom the court denies an order authorizing an abortion withoutconsent or without notice. Any such appeal shall be heard and decided nolater than five days after the appeal is filed. The time periods required bythis subsection shall be subject to subsection B of 1-210. An orderauthorizing an abortion without consent or without notice shall not besubject to appeal.
No filing fees shall be required of the minor at trial or upon appeal.
If either the original court or the circuit court fails to act within thetime periods required by this subsection, the court before which theproceeding is pending shall immediately authorize a physician to perform theabortion without consent of or notice to an authorized person.
Nothing contained in this subsection shall be construed to authorize aphysician to perform an abortion on a minor in circumstances or in a mannerthat would be unlawful if performed on an adult woman.
A physician shall not knowingly perform an abortion upon an unemancipatedminor unless consent has been obtained or the minor delivers to the physiciana court order entered pursuant to this section and the physician or his agentprovides such notice as such order may require. However, neither consent norjudicial authorization nor notice shall be required if the minor declaresthat she is abused or neglected and the attending physician has reason tosuspect that the minor may be an abused or neglected child as defined in 63.2-100 and reports the suspected abuse or neglect in accordance with 63.2-1509; or if there is a medical emergency, in which case the attendingphysician shall certify the facts justifying the exception in the minor'smedical record.
For purposes of this subsection:
"Authorization" means the minor has delivered to the physician a notarized,written statement signed by an authorized person that the authorized personknows of the minor's intent to have an abortion and consents to such abortionbeing performed on the minor.
"Authorized person" means (i) a parent or duly appointed legal guardian orcustodian of the minor or (ii) a person standing in loco parentis, including,but not limited to, a grandparent or adult sibling with whom the minorregularly and customarily resides and who has care and control of the minor.Any person who knows he is not an authorized person and who knowingly andwillfully signs an authorization statement consenting to an abortion for aminor is guilty of a Class 3 misdemeanor.
"Consent" means that (i) the physician has given notice of intent toperform the abortion and has received authorization from an authorizedperson, or (ii) at least one authorized person is present with the minorseeking the abortion and provides written authorization to the physician,which shall be witnessed by the physician or an agent thereof. In eithercase, the written authorization shall be incorporated into the minor'smedical record and maintained as a part thereof.
"Medical emergency" means any condition which, on the basis of thephysician's good faith clinical judgment, so complicates the medicalcondition of the pregnant minor as to necessitate the immediate abortion ofher pregnancy to avert her death or for which a delay will create a seriousrisk of substantial and irreversible impairment of a major bodily function.
"Notice of intent to perform the abortion" means that (i) the physician orhis agent has given actual notice of his intention to perform such abortionto an authorized person, either in person or by telephone, at least 24 hoursprevious to the performance of the abortion; or (ii) the physician or hisagent, after a reasonable effort to notify an authorized person, has mailednotice to an authorized person by certified mail, addressed to such person athis usual place of abode, with return receipt requested, at least 72 hoursprior to the performance of the abortion.
"Unemancipated minor" means a minor who has not been emancipated by (i)entry into a valid marriage, even though the marriage may have beenterminated by dissolution; (ii) active duty with any of the Armed Forces ofthe United States; (iii) willingly living separate and apart from his or herparents or guardian, with the consent or acquiescence of the parents orguardian; or (iv) entry of an order of emancipation pursuant to Article 15 (16.1-331 et seq.) of this chapter.
W. Petitions filed pursuant to Article 17 ( 16.1-349 et seq.) of thischapter relating to standby guardians for minor children.
The ages specified in this law refer to the age of the child at the time ofthe acts complained of in the petition.
Notwithstanding any other provision of law, no fees shall be charged by asheriff for the service of any process in a proceeding pursuant tosubdivision 3 of subsection A, except as provided in subdivision A 6 of 17.1-272, or subsection B, D, M or R of this section.
Notwithstanding the provisions of 18.2-71, any physician who performs anabortion in violation of subsection V shall be guilty of a Class 3misdemeanor.
(Code 1950, 16.1-158; 1956, c. 555; 1960, c. 388; 1968, c. 225; 1970, cc.232, 600; 1973, c. 440; 1976, cc. 42, 324; 1977, cc. 525, 559; 1978, c. 648;1979, cc. 597, 605, 628; 1980, cc. 527, 529; 1981, cc. 454, 475, 488, 491,501, 502, 510; 1982, c. 46; 1983, c. 280; 1984, cc. 631, 645, 651, 665, 669;1985, c. 270; 1986, cc. 59, 506; 1987, c. 632; 1988, cc. 797, 906; 1989, cc.368, 733; 1990, cc. 704, 975; 1991, cc. 511, 715; 1992, cc. 585, 742; 1994,cc. 575, 719, 813, 859, 949; 1995, cc. 7, 665, 772, 826, 852; 1996, cc. 755,914; 1997, cc. 690, 708; 1998, c. 829; 1999, cc. 697, 721, 1028; 2000, c.830; 2003, cc. 229, 960, 962; 2004, c. 588; 2005, cc. 716, 839, 890.)
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