NASJE: National Association of State Judicial Educators
 

 

NASJE Editorial
FALL 2003: Index | News | Resources | Manager's Briefcase | Comments?
Resources
Adult Ed: Designing Complex Curricula
Family Courts: One Judge - One Family
Domestic and Family Violence: Full Faith and Credit for POs
A Community of Practice is About Oneness
Tech Corner: List Servers
Conference Recap: Teaching, Learning, and Thinking Outside the Box
Conference Recap: How to Develop a Course
Conference Recap: Preventing Death by Lecture
Conference Recap: Developing Curricula for Challenging Topics
Conference Recap: Economics and Judicial Education
Conference Recap: Leadership Principles in Collaborative Settings
Resources: Domestic & Family Violence
Full Faith & Credit for Protection Orders

In 1994, Congress enacted the Violence Against Women Act (VAWA). The VAWA includes a provision that requires all states, tribes (note 1), and U.S. territories to afford one another's protection orders (note 2) full faith and credit. Congress amended this and other provisions of the VAWA in 2000 to clarify certain provisions and better provide for safety across jurisdictional borders. (18 U.S.C. § 2265.) What follows is an explication of the information judges need about issuing enforceable orders and enforcing the orders of other jurisdictions.

The full faith and credit provision requires state, tribal, and territorial law enforcement officers and courts to enforce protection orders from these other jurisdictions ("foreign" protection orders) as though they were issued by a court within the enforcing jurisdiction. Federal law defines "protection order" very broadly to include all civil and criminal, emergency, temporary, and permanent orders. [18 U.S.C. § 2266(5)]. In addition to orders issued pursuant to domestic violence or stalking protection order statutes, this definition encompasses divorce and separation orders containing protective provisions and conditional release orders.

The statute includes due process protections for the respondent subject to the protection order. Specifically, the issuing court must have had subject matter and personal jurisdiction under its laws, and the respondent must have had reasonable notice and an opportunity to be heard. [18 U.S.C. § 2265(b)]. The federal law also specifies that ex parte protection orders are entitled to full faith and credit, provided the respondent has received notice of the order and will have an opportunity to be heard within the time required by the issuing jurisdiction's laws, "and in any event, within a reasonable time after the order is issued, sufficient to protect the respondent's due process rights" (Id.).

Two critically important safety amendments Congress made in 2000 prohibit jurisdictions from requiring registration (also commonly referred to as "filing," or "domestication") as a pre-requisite to enforcement and from notifying the respondent that an order has been registered, unless the protected party requests notification [18 U.S.C. § 2265(d]). These amendments were designed to stop practices that were endangering survivors.

In practice, the issuing court determines all terms of relief, the duration of the order, and which parties are eligible for and entitled to protection under the order. The enforcing jurisdiction then determines enforcement mechanisms such as the arrest authority of responding law enforcement officers, pretrial detention policies, sanctions for violation, and post-conviction consequences (e.g. probation, parole).

Common Full Faith & Credit Challenges for Judges

Judges must be adequately prepared to respond to several of the common challenges foreign protection orders raise. For example, as with all other provisions of a foreign protection order, judges must also enforce any firearm possession prohibitions issued in accordance with the issuing jurisdiction's laws (note 3).

Another common challenge is the lack of due process. Statutorily, many jurisdictions place the burden on the respondent to raise due process infirmities as an affirmative defense to a protection order violation. Judges must then be prepared to determine whether the issuing court had personal and subject matter jurisdiction, whether the respondent was afforded an opportunity to be heard, and whether the respondent was properly served according to the laws of the issuing jurisdiction.

A judge might also have to consider a request to enforce a "mutual protection order (note 4)” against the party that initially sought protection from the abuse. Federal law prohibits such enforcement against the petitioner except in very limited circumstances sufficient to protect the petitioner's due process rights. Specifically, the respondent must have cross-filed a written pleading for a protection order and the issuing court must have made specific findings that both parties abused each other and were entitled to protection from further abuse. [(18 U.S.C. § 2265(c)].

Child custody provisions within protection orders pose a unique challenge to judges; the topic is therefore covered in a forthcoming article. However judges enforcing foreign protection orders must also be prepared to enforce economic relief provisions such as child or spousal support and temporary property divisions or restrictions so as not to compromise the petitioner's safety or financial security by requiring a return to the jurisdiction from which the petitioner fled further abuse. Judges may need to consult their jurisdiction's Uniform Interstate Family Support Act.

The full faith and credit provision explicitly requires states to recognize and enforce tribal and territorial protection orders just as they must recognize and enforce orders from other states. The statute also explicitly recognizes the full civil jurisdictional authority tribes have to enforce protection orders against non-Indians who violate foreign protection orders on tribal lands. [18 U.S.C. § 2265(e)]. It is consistent with tribes' sovereign rights to enforce foreign protection orders to provide safety for Indian survivors of domestic violence. To do so, tribes may choose to use comity principles or to enact full faith and credit enabling legislation as part of their tribal code.

Criminal and military protection orders each pose an additional set of challenges for enforcing judges. When a criminal defendant violates a criminal protection order such as a bond condition, it is often left to the two jurisdictions to arrange for the offender's extradition. Some states, however, have created separate provisions of their criminal code for violation of a foreign criminal protection order, facilitating full faith and credit enforcement of such orders in compliance with the federal mandate.

In general, military protection orders do not satisfy the due process requirements for full faith and credit. Typically the respondent has no opportunity to be heard to contest entry of the order, which is issued by the commanding officer, not a court. However, commanding officers in all branches of the military may accord full faith and credit to a protection order issued against service personnel by a state, tribe or territory.

Best Practices - Suggestions for Judges

Issuance for Enforcement Elsewhere
When crafting protection orders, judges should always provide both oral and written notice of the full faith and credit provisions of state, territorial or tribal and federal law, explaining that the order is entitled to national enforcement.

At a bare minimum, the order should contain the following:

  • name and contact information for the issuing court;
  • a citation to the relevant state, territorial or tribal code that forms the basis of authority for granting the order;
  • a clear statement of compliance with the jurisdictional and due process requirements of the VAWA;
  • name and contact information for the state, territorial or tribal registry;
  • expiration date, if any, or other duration of the order (e.g. lifetime);
  • other relevant numerical identifiers for entry into both the state, territorial or tribal and national (National Crime Information Center Protection Order File (NCIC POF)) registries; and
  • a clear indication of the parties' relationship to one another in order to facilitate enforcement of the federal firearms prohibitions, prohibiting unlawful purchases and transfers. [18 U.S.C. §§ 922(g)(8) and 921(a)(32]).

As a matter of good practice, judges should:

  • provide free, certified copies of the order and any modifications;
  • whenever possible, have the respondent sign acknowledgement of service on the face of the order itself;
  • indicate that custody provisions within protection orders comply with the governing state custody jurisdictional law (Uniform Child Custody Jurisdiction Act or Uniform Child Custody Jurisdiction and Enforcement Act) and the federal Parental Kidnapping Prevention Act (PKPA);
  • question both parties about the existence of any other orders or ongoing proceedings, review any such orders and, if necessary consult with the other court(s) to avoid issuing orders that would conflict with existing orders; and
  • develop, implement, and educate court staff on court rules, policies, and procedures pertaining to full faith and credit.

Enforcement of Foreign Protection Orders
Judges apply the criminal law of their jurisdictions to enforcement proceedings, not that of the issuing jurisdiction. Nonetheless, judges must decide due process challenges by applying the issuing jurisdiction's laws. Judges should readily admit evidence from the issuing jurisdiction (in accordance with the enforcing jurisdiction's evidentiary rules) to substantiate a protection order's validity. Judges must also understand which party bears what burden of proof, remembering that facially valid orders generally may be presumed valid while challenges generally are affirmative defenses.

Judges must recognize that a defendant who already has crossed jurisdictional lines to commit acts of abuse likely poses an increased flight risk and enhanced danger for the survivor of that abuse. For enforcement purposes, judges should conduct a dangerousness or lethality assessment (note 5) for the following reasons:

  • to determine the propriety of bail, and if so the proper amount for bail;
  • to help determine whether to order discretionary firearms prohibitions;
  • in conjunction with the defendant's criminal history information, to help determine the most appropriate sentence.

At sentencing, judges should also permit survivors of domestic violence to make statements related both to the risk of further violence and to the impact of past domestic violence and respect any requests for specific protective provisions and compensation. At the conclusion of the enforcement proceeding, the judge should either inform the issuing court of the case disposition, or should order the prosecutor to do so.

For further information regarding full faith and credit and the enforcement of protection orders, please contact the National Center on Full Faith & Credit at (800) 256-5883 x 2.
The Center is available to provide technical assistance, including judicial education, on these issues.