Full Faith and Credit: What s Old, What s New, and What you Should Know

Transcription

1 Full Faith and Credit: What s Old, What s New, and What you Should Know Monica N. Player National Center on Full Faith and Credit (800) prompt 2.

2 What s Old The Concept of Full Faith and Credit

3 Full Faith & Credit Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. U.S. Constitution, Article IV, Section 1.

4 Examples: Driver s license Marriage license Divorce Decree Birth Certificate

5 So what does this have to do with protection orders?

6 Full Faith and Credit Simply Stated: Full faith and credit for protection orders means that when a protection order that was issued by any State, Indian tribe, or territory is violated in any other jurisdiction, it must be enforced as if the order had been issued in the enforcing jurisdiction.

7 What s New Violence Against Women Act (VAWA) mandates that protection orders must be given full faith and credit. VAWA was enacted in 1994, revised in 2000, and again in Each time there have been significant changes to the full faith and credit provision.

8 Full Faith and Credit Enhancements under VAWA III The definition of protection order was updated to cover all injunctive court orders, so long as the purpose of the order is to provide safety and protection for petitioners. (18 U.S.C. 2266(5)) Law enforcement and courts are required to enforce these orders. (18 U.S.C (a)) Custody, visitation and support provisions in protection orders must receive full faith and credit (18 U.S.C. 2266(5)) Courts cannot publish information about petitioners. (18 U.S.C (d)(3))

9 Full Faith and Credit for Protection Orders

10 Intent of the Law For Petitioners Interstate protection afforded to protection orders. For Respondents Offender accountability for violation of protection orders. For Judges Judicial economy.

11 Full Faith and Credit Provision 18 U.S.C (a) Any protection order issued that is consistent with subsection (b) of this section by the court of one State, Indian tribe, or territory (the issuing State, Indian tribe, or territory) shall be accorded full faith and credit by the court of another State, Indian tribe, or territory (the enforcing State, Indian tribe, or territory) and enforced by the court and law enforcement personnel of the other State, Indian tribal government or Territory as if it were the order of the enforcing State, Indian tribe, or territory.

12 Definition of Protection Order 18 U.S.C The term protection order includes (A) Any injunction, restraining order, or any other order issued by a civil or criminal court for the purpose of preventing violent or threatening acts or harassment against, sexual violence, or contact or communication with or physical proximity to, another person, including any temporary or final order issued by a civil or criminal court whether obtained by filing an independent action or as a pendente lite order in another proceeding so long as any civil or criminal order was issued in response to a complaint, petition, or motion filed by or on behalf of a person seeking protection; and,

13 Definition of Protection Order 18 U.S.C (B) any support, child custody or visitation provisions, orders, remedies or relief issued as part of a protection order, restraining order, or injunction pursuant to State, tribal, territorial, or local law authorizing the issuance of protection orders, restraining orders, or injunctions for the protection of victims of domestic violence, sexual assault, dating violence, or stalking.

14 Jurisdiction Requirement 18 U.S.C (b)(1) A protection order issued by a State or tribal or territorial court is consistent with this subsection if -- (1) such court has jurisdiction over the parties and matter under the law of such State or Indian tribe, or territory; AND

15 Due Process Requirement 18 U.S.C (b)(2) (2) reasonable notice and opportunity to be heard is given to the person against whom the order is sought sufficient to protect that person s right to due process. In the case of ex parte orders, notice and opportunity to be heard must be provided within the time required by State, tribal or territorial law, and in any event within a reasonable time after the order is issued, sufficient to protect the respondent s due process rights.

16 Protection Order Scenario Mary and John are married. Mary files for divorce in Maryland and in her Complaint requests injunctive relief against John. The divorce decree provides that John may not abuse, threaten to abuse or harass Mary. He is not to contact her by any means and is to stay away from her home and place of employment. Mary moves to Texas. Three weeks later John shows up at her new job. Is her order enforceable? Does it matter that her injunctive relief is not in a separate order?

17 Identifying Protection Orders The order was issued to prevent violent, threatening, or harassment against another person, sexual violence, OR contact, communication or physical proximity to another person. The order was entered pursuant to a complaint, petition, or motion filed by or on behalf of a person seeking protection. The court that issued the order has personal and subject matter jurisdiction. The respondent/defendant was provided notice and an opportunity to be heard.

18 Protective Order in Suit for Dissolution of Marriage Tex. Fam. Code A protective order in a suit for dissolution of a marriage must be in a separate document entitled "PROTECTIVE ORDER."

19 What you should know

20 Enforcement

21 Am I enforcing State Law, Tribal Law or Federal Law? You are enforcing the laws of the jurisdiction you are in (where the violation occurred), and in doing so, you are complying with the Federal mandate.

22 Which Laws Apply? The jurisdiction that issues the order determines: who is eligible for protection all the relief the court awards how long the order is in effect The jurisdiction that enforces the order determines: how the order is enforced the arrest authority of the responding law enforcement detention and notification procedures penalties or sanctions for violation of the order

23 What if the state I am in will not enforce my order?

24 Facilitating Enforcement in Another Jurisdiction s Courts Ensure orders are clear in terms of what conduct is prohibited. Make sure they are legible. Ensure that there is a clear expiration date. Consider entry into the state registry. Include the language of the federal FFC law. Note whether service was effected. Provide contact information for issuing court. Provide contact number for the state registry (if possible).

25 States and Tribes Determine Enforcement Procedures To provide clarification to the Federal law, most state legislatures have passed their own full faith and credit laws. Enforcement is accomplished using the enforcement laws and procedures of your state/tribe that govern: Arrest Court enforcement mechanisms (e.g. civil contempt) Detention Bail/Bond Conditions of Release Victim Notification Penalties and Sanctions

26 Enforcement Scenario Mary is granted a lifetime order of protection by state A. Four (4) years later, she relocates to state B where the maximum duration of an order is one (1) year. Is her order enforceable? If so, how long?

27 Enforcement Scenario Jane obtains a protection order against her same-sex abuser in State A. She then flees to State B, where same-sex partners are not eligible for orders of protection. Is her order entitled to full faith and credit in state B?

28 Current Texas Laws

29 Full Faith and Credit in Texas Uniformed Interstate Enforcement of Domestic Violence Protection Order Act Tex. Fam. Code et. seq.

30 Definitions Tex. Fam. Code (1) "Foreign protective order" means a protective order issued by a tribunal of another state. (2) "Issuing state" means the state in which a tribunal issues a protective order. (3) "Mutual foreign protective order" means a foreign protective order that includes provisions issued in favor of both the protected individual seeking enforcement of the order and the respondent. (4) "Protected individual" means an individual protected by a protective order. (5) "Protective order" means an injunction or other order, issued by a tribunal under the domestic violence or family violence laws or another law of the issuing state, to prevent an individual from engaging in violent or threatening acts against, harassing, contacting or communicating with, or being in physical proximity to another individual. (6) "Respondent" means the individual against whom enforcement of a protective order is sought. (7) "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, or a territory or insular possession subject to the jurisdiction of the United States. The term includes a military tribunal of the United States, an Indian tribe or band, and an Alaskan native village that has jurisdiction to issue protective orders. (8) "Tribunal" means a court, agency, or other entity authorized by law to issue or modify a protective order.

31 Judicial Enforcement of Order Tex. Fam. Code (a) A tribunal of this state shall enforce the terms of a foreign protective order, including a term that provides relief that a tribunal of this state would not have power to provide but for this section. The tribunal shall enforce the order regardless of whether the order was obtained by independent action or in another proceeding, if the order is an order issued in response to a complaint, petition, or motion filed by or on behalf of an individual seeking protection. In a proceeding to enforce a foreign protective order, the tribunal shall follow the procedures of this state for the enforcement of protective orders.

32 Judicial Enforcement of Order Tex. Fam. Code (b) A tribunal of this state shall enforce the provisions of the foreign protective order that govern the possession of and access to a child if the provisions were issued in accordance with the jurisdictional requirements governing the issuance of possession and access orders in the issuing state.

33 Judicial Enforcement of Order Tex. Fam. Code 88.03(c) A tribunal of this state may enforce a provision of the foreign protective order relating to child support if the order was issued in accordance with the jurisdictional requirements of Chapter 159 and the federal Full Faith and Credit for Child Support Orders Act, 28 U.S.C. Section 1738B, as amended.

34 Judicial Enforcement of Order Tex. Fam. Code (d) A foreign protective order is valid if the order: (1) names the protected individual and the respondent; (2) is currently in effect; (3) was rendered by a tribunal that had jurisdiction over the parties and the subject matter under the law of the issuing state; and (4) was rendered after the respondent was given reasonable notice and an opportunity to be heard consistent with the right to due process, either: (A) before the tribunal issued the order; or (B) in the case of an ex parte order, within a reasonable time after the order was rendered.

35 Judicial Enforcement of Order Tex. Fam. Code (e),(f) (e) A protected individual seeking enforcement of a foreign protective order establishes a prima facie case for its validity by presenting an order that is valid on its face. (f) It is an affirmative defense in an action seeking enforcement of a foreign protective order that the order does not meet the requirements for a valid order under Subsection (d).

36 Judicial Enforcement of Order Tex. Fam. Code (g) A tribunal of this state may enforce the provisions of a mutual foreign protective order that favor a respondent only if: (1) the respondent filed a written pleading seeking a protective order from the tribunal of the issuing state; and (2) the tribunal of the issuing state made specific findings in favor of the respondent.

37 Nonjudicial Enforcement of Order Tex. Fam. Code 88.04(a) A law enforcement officer of this state, on determining that there is probable cause to believe that a valid foreign protective order exists and that the order has been violated, shall enforce the foreign protective order as if it were an order of a tribunal of this state. A law enforcement officer has probable cause to believe that a foreign protective order exists if the protected individual presents a foreign protective order that identifies both the protected individual and the respondent and on its face, is currently in effect.

38 Nonjudicial Enforcement of Order Tex. Fam. Code 88.04(b),(c) (b) For the purposes of this section, a foreign protective order may be inscribed on a tangible medium or may be stored in an electronic or other medium if it is retrievable in a perceivable form. Presentation of a certified copy of a protective order is not required for enforcement. (c) If a protected individual does not present a foreign protective order, a law enforcement officer may determine that there is probable cause to believe that a valid foreign protective order exists by relying on any relevant information.

39 Nonjudicial Enforcement of Order Tex. Fam. Code 88.04(d) A law enforcement officer of this state who determines that an otherwise valid foreign protective order cannot be enforced because the respondent has not been notified or served with the order shall inform the respondent of the order and make a reasonable effort to serve the order on the respondent. After informing the respondent and attempting to serve the order, the officer shall allow the respondent a reasonable opportunity to comply with the order before enforcing the order.

40 Nonjudicial Enforcement of Order Tex. Fam. Code 88.04(e) The registration or filing of an order in this state is not required for the enforcement of a valid foreign protective order under this chapter.

41 Immunity from Civil and Criminal Liability Tex. Fam. Code A state or local governmental agency, law enforcement officer, prosecuting attorney, clerk of court, or any state or local governmental official acting in an official capacity is immune from civil and criminal liability for an act or omission arising from the registration or enforcement of a foreign protective order or the detention or arrest of a person alleged to have violated a foreign protective order if the act or omission was done in good faith in an effort to comply with this chapter.

42 Other Remedies Tex. Fam. Code A protected individual who pursues a remedy under this chapter is not precluded from pursuing other legal or equitable remedies against the respondent.

43 Understanding VAWA No Fee Certification Requirements

44 VAWA No Fee Provisions Jurisdictions receiving STOP grants & Arrest grants MUST certify that: their laws, policies, and practices do NOT require, in connection with the prosecution of any misdemeanor or felony domestic violence offense, or in connection with the filing, issuance, registration, or service of a protection order, or a petition for a protection order, to protect a victim of domestic violence, stalking, or sexual assault, that the victim bear the costs associated with the filing of criminal charges against the offender, or the costs associated with the filing, issuance, registration, or service of a warrant, protection order, petition for a protection order, or witness subpoena, whether issued inside or outside the State, tribal, or local jurisdiction.

45 What does this mean? Petitioners may not be forced to pay Filing fees Other fees associated with issuance of a protection order Registration fees Service of process fees (e.g. fees for certified copies, motions to withdraw, modify, or dismiss appeal) for a protection order, petition for a protection order or witness subpoena in both the civil and criminal law systems.

46 No Fee for Applicant Tex. Fam. Code An applicant for a protective order or an attorney representing an applicant may not be assessed a fee, cost, charge, or expense by a district or county clerk of the court or a sheriff, constable, or other public official or employee in connection with the filing, serving, or entering of a protective order or for any other service described by this subsection, including: (1) a fee to dismiss, modify, or withdraw a protective order; (2) a fee for certifying copies; (3) a fee for comparing copies to originals; (4) a court reporter fee; (5) a judicial fund fee; (6) a fee for any other service related to a protective order; or (7) a fee to transfer a protective order.

47 Common Fee Issue Service: The VAWA fee prohibition requires law enforcement to serve protection orders on respondents without any payment of service, filing and copying fees by petitioners both within the issuing jurisdictions and in enforcing states, tribal land and territories. Solution: Cost associated with protection orders may be assessed against the respondent/offenders.

48 Fees and Costs Paid by Party Found to Have Committed By Family Violence Tex. Fam. Code (a),(b) (a) Except on a showing of good cause or of the indigence of a party found to have committed family violence, the court shall require in a protective order that the party against whom the order is rendered pay the $ 16 protective order fee, the standard fees charged by the clerk of the court in a general civil proceeding for the cost of serving the order, the costs of court, and all other fees, charges, or expenses incurred in connection with the protective order. (b) The court may order a party against whom an agreed protective order is rendered under Section to pay the fees required in Subsection (a).

49 Registration/Filing

50 No Federal Registration Requirement 18 U.S.C. 2265(d)(2) No prior registration or filing as prerequisite for enforcement. Any protection order that is otherwise consistent with this section shall be accorded full faith and credit, notwithstanding failure to comply with any requirement that the order be registered or filed in the enforcing State, tribal, or territorial jurisdiction.

51 Registration Process TEXAS

52 Registration of Orders Tex. Fam. Code (a) (a) An individual may register a foreign protective order in this state. To register a foreign protective order, an individual shall: (1) present a certified copy of the order to a sheriff, constable, or chief of police responsible for the registration of orders in the local computer records and in the statewide law enforcement system maintained by the Texas Department of Public Safety; or (2) present a certified copy of the order to the Department of Public Safety and request that the order be registered in the statewide law enforcement system maintained by the Department of Public Safety.

53 Registration of Orders Tex. Fam. Code (b),(c) (b) On receipt of a foreign protective order, the agency responsible for the registration of protective orders shall register the order in accordance with this section and furnish to the individual registering the order a certified copy of the registered order. (c) The agency responsible for the registration of protective orders shall register a foreign protective order on presentation of a copy of a protective order that has been certified by the issuing state. A registered foreign protective order that is inaccurate or not currently in effect shall be corrected or removed from the registry in accordance with the law of this state.

54 Registration of Orders Tex. Fam. Code (d),(e),(f) (d) An individual registering a foreign protective order shall file an affidavit made by the protected individual that, to the best of the protected individual's knowledge, the order is in effect. (e) A foreign protective order registered under this section may be entered in any existing state or federal registry of protective orders, in accordance with state or federal law. (f) A fee may not be charged for the registration of a foreign protective order.

55 Why File an Out-of-State Order in a New Jurisdiction? The victim is in the new state or tribe on a temporary or permanent basis (vacation, visiting family, moved here permanently). Provides notice to law enforcement and courts of the existence of the order and the presence of the victim in the state or tribe. Facilitates enforcement by law enforcement and the courts, should it be necessary. May stop future firearms purchases under the Brady Act.

56 Is there a determination of validity at the time of Filing? No- the Court should not make a determination as to whether an order is valid. This determination should only be made in the event that enforcement is necessary.

57 Advantages of Registering Protection Orders Although not required under 18 U.S.C. 2265(d), registration may be demanded for enforcement in state/tribal law or local practice. May facilitate enforcement in the new jurisdiction, as well as other jurisdictions if entered into NCIC POF. May stop future firearm purchases.

58 Disadvantages to Registering Inconvenience: Inability to access the court. Improper Disclosure to Abuser: Possibility that notice will be sent to the abuser (although contrary to 18 U.S.C. 2265(d)(1)). Improper Public Disclosure: Registration may make the document a searchable public record. (But see, Limits on Internet Publication)

59 Should the Respondent be Notified that the Order was Filed in a New Jurisdiction? NO- this is not a new case. The Respondent was notified of the petition, and had an opportunity to respond at a hearing(or will have that opportunity, in the case of an ex parte order). Additionally

60 Notification 18 U.S.C. 2265(d)(1) A State, Indian tribe, or territory according full faith and credit to an order by a court of another State, Indian tribe, or territory shall not notify or require notification of the party against whom a protection order has been issued that the protection order has been registered or filed in that enforcing State, tribal, or territorial jurisdiction unless requested to do so by the party under such order.

61 Why not just get a new order? Risk of future violence/disclosure of new location: If the victim moves to another jurisdiction to escape the abuser and the violence, filing for a new order of protection in the jurisdiction would require the abuser to be given notice of the filing. A new filing would require her to disclose her new state. This could further endanger the victim. Jurisdiction: The court in a new jurisdiction may not have personal or subject matter jurisdiction over the case. Judicial Economy: The case has already been litigated, and a court in another jurisdiction has ruled that the victim is entitled to the order.

62 Limits on Internet Publication 18 U.S.C. 2265(d)(3) Limits on internet publication of registration information. A State, Indian tribe, or territory shall not make available publicly on the Internet any information regarding the registration, filing of a petition for, or issuance of a protection order, restraining order or injunction [, restraining order, or injunction] in either the issuing or enforcing State, tribal or territorial jurisdiction, if such publication would be likely to publicly reveal the identity or location of the party protected under such order. A State, Indian tribe or territory may share courtgenerated and law enforcement-generated information contained in secure, government registries for protection order enforcement purposes.

63 Confidentiality of Certain Information Tex. Fam. Code (a) On request by a person protected by an order or member of the family or household of a person protected by an order, the court may exclude from a protective order the address and telephone number of: (1) a person protected by the order, in which case the order shall state the county in which the person resides; (2) the place of employment or business of a person protected by the order; or (3) the child-care facility or school a child protected by the order attends or in which the child resides. (b) On granting a request for confidentiality under this section, the court shall order the clerk to: (1) strike the information described by Subsection (a) from the public records of the court; and (2) maintain a confidential record of the information for use only by the court.

64 Specific Types of Protection Orders What you need to know

65 Enforcing Specific Types of Protection Orders Reference Guide Ex parte orders (18 U.S.C. 2265(b)(2)) Mutual orders (18 U.S.C. 2265(c)) Criminal protection orders (18 U.S.C. 2266(5)) Consent orders (18 U.S.C. 2265(b)) Custody provisions (18 U.S.C. 2266(5)) Enforcement of civilian protection orders on military bases (10 U.S.C. 1561a) Military protection order enforcement (not afforded FFC) Tribal protection orders (18 U.S.C. 2265(e))

66 Ex Parte Orders

67 Ex Parte Scenario On May 28, 2008, Janet Jones comes to court seeking a temporary restraining order. After a hearing reviewing the allegations in her complaint, you grant the request and set a hearing date for 14 days later. Janet s husband Jason appears to be evading service. On May 30, 2008, Jason shows up at Janet s job demanding to speak to her. He has a copy of the ex parte order in his hand. She calls the police. Is her order enforceable? Does it matter that John has a copy of the order?

68 Ex Parte Orders 18 U.S.C. 2265(b)(2) In the case of ex parte orders, notice and opportunity to be heard must be provided within the time required by State or tribal law, and in any event within a reasonable time after the order is issued, sufficient to protect the respondent s due process rights. Thus, an ex parte order is entitled to full faith and credit as long as the respondent has notice of the order, even if the hearing has not yet been held.

69 Mutual Protection Orders

70 Mutual Orders Scenario Two local police officers respond to a domestic call at a local soccer game at an elementary school in Addison, Texas to find Mary and John yelling at each other. The officers interview the parties separately. Mary produces a protection order from State X that lists both parties as the petitioner and the respondent. The order provides that neither party is to abuse or threaten to abuse the other and they are to stay 500 feet away from each other. Mary states that she filed for the petition for protection. John states that he requested at the hearing that Mary not bother him. The court granted the parties a mutual order based on Mary s petition. Is the order enforceable, and if so, against whom?

71 Separate Protective Orders Required Tex. Fam. Code (a) A court that renders separate protective orders that apply to both parties and require both parties to do or refrain from doing acts under Section shall render two distinct and separate protective orders in two separate documents that reflect the appropriate conditions for each party. (b) A court that renders protective orders that apply to both parties and require both parties to do or refrain from doing acts under Section shall render the protective orders in two separate documents. The court shall provide one of the documents to the applicant and the other document to the respondent. (c) A court may not render one protective order under Section that applies to both parties.

72 Mutual Orders 18 U.S.C. 2265(c) A protection order issued by a State, tribal or territorial court against one who has petitioned, filed a complaint, or otherwise filed a written pleading for protection against abuse by a spouse or intimate partner is not entitled to full faith and credit if no cross or counter petition, complaint, or other written pleading was filed seeking such a protection order; or a cross or counter petition has been filed and the court did not make specific findings that each party was entitled to such an order.

73 Criminal Protection Orders

74 Criminal Scenario Two Albany, Texas police officers respond to a call at a local salon where they find Linda Thompson lying on the floor, clearly injured, with a bloodied lip and nose. Linda tells the officer that Mark, her exboyfriend attacked her and ran down the street. She also stated he was recently arrested for assaulting her and that a judge issued a no contact order during the bail hearing. She indicates that she was never given a paper document from the court, but the prosecutor told her Mark wasn t supposed to be contacting her. Mark was located down the street. Is Linda s order enforceable?

75 Criminal Protection Orders 18 U.S.C. 2266(5)(A) Under the federal law, protection orders issued by criminal courts are entitled to full faith and credit. Criminal protection orders include those found in pre-trial release orders, conditional releases orders, bond conditions or probation orders.

76 Consent Protection Orders

77 Consent or Agreed Orders Scenario Karen Jones goes to the local police department in Calvert, Texas where she is now living. She explains that her estranged and soon-to-be ex-husband, Sam Jones, is calling her at work and sending her s constantly, begging her to return and give him another chance, in violation of her protection order from a Washington state court. Sam waived his right to a hearing on the protection order and agreed to have it entered against him. Is her order enforceable? What if Sam fails to show up for the hearing?

78 Agreed Order Tex. Fam. Code (a) To facilitate settlement, the parties to a proceeding may agree in writing to the terms of a protective order as provided by Section An agreement under this subsection is subject to the approval of the court. (b) To facilitate settlement, a respondent may agree in writing to the terms of a protective order as provided by Section , subject to the approval of the court. The court may not approve an agreement that requires the applicant to do or refrain from doing an act under Section The agreed order is enforceable civilly or criminally. (c) If the court approves an agreement between the parties, the court shall render an agreed protective order that is in the best interest of the applicant, the family or household, or a member of the family or household. (d) An agreed protective order is not enforceable as a contract. (e) An agreed protective order expires on the date the court order expires.

79 Default Orders Tex. Fam. Code (a) A court may render a protective order that is binding on a respondent who does not attend a hearing if the respondent received service of the application and notice of the hearing. (b) If the court reschedules the hearing under Chapter 84, a protective order may be rendered if the respondent does not attend the rescheduled hearing.

80 Consent or Agreed Orders 18 U.S.C. 2265(5) Protection orders issued based upon consent agreements between the parties are entitled to full faith and credit, provided they satisfy the requirements of 18 U.S.C. 2265(b). Thus, if the court had subject matter jurisdiction and personal jurisdiction and the respondent had the opportunity to be heard, a consent order must be enforced as if it had been issued in the enforcing jurisdiction.

81 Custody Provisions

82 Custody Provisions Scenario Pam and Jim have a one child in common, named Tina. Pursuant to the protection order, they are to exchange custody of Tina at the local IHOP restaurant in Clifton, Texas. Pam has been waiting for two hours for her ex-husband Jim to return their daughter from an overnight visit with him. Anxious from the wait, and unable to reach Jim on her cell phone, Pam calls her mother-in-law Mary to locate Jim and Tina. Pam hears Tina and Jim in the background. Mary states Jim is not home. Jim calls Pam and ask her to meet him at the local park. Pam calls 911 for assistance. Local police arrive. Pam shows them a copy of her protection order from Oklahoma that clearly indicates that Jim has to return the child to Pam no later than 5:00 pm on the day after he as overnight visitation. It is now 8:30 pm and there is no sign of Jim. What can the officers do?

83 Custody Provisions Protection orders often include terms to award temporary custody of the minor children to the victim. Non-issuing courts and law enforcement must enforce custody provisions within protection orders. Full Faith and Credit applies to: any support, child custody or visitation provisions, orders, remedies or relief issued as part of a protection order, restraining order, or injunction pursuant to State, tribal, territorial or local law authorizing the issuance of protection orders, restraining order or injunctions for the protection of victims of domestic violence, sexual assault, dating violence or stalking. 18 U.S.C. 2266(5)(B).

84 Military Protection Orders

85 Military Protection Order Scenario Sandy and her husband Pete reside on Andrew s Air Force Base in Maryland. Pete is an active duty member of the Air Force. After a particularly violent event, Sandy seeks help from a local domestic violence advocacy program and obtains a civil protection order. Sandy is shopping at the BX on base, Pete jumps out of his car and attacks Sandy. Sandy leaves the shopping center and calls the police. Pete is gone when the police arrive. Sandy produces her protection order. Is the protection order enforceable? What if local law enforcement respond? What if military police respond?

86 Military Protection Orders Most military protection orders do not meet the requirements for inter-jurisdictional enforceability because they are usually issued by a commanding officer and the respondent is not accorded due process. Not specifically named in FFC statute. Therefore, not required to enforcement pursuant to Federal law.

87 Enforcement of Civilian Orders on Military Installations Federal law allows for civil protection orders to be enforced on military bases Civilian Orders of Protection: Shall have the same force and effect on military installations as they do in the issuing jurisdiction. 10 U.S.C. 1561a Civilian Order of Protection is defined the same as the definition used in 18 U.S.C. 2266(5)

88 Tribal Protection Order Scenario In March 2008, Grace moved to Eagle Lake, Texas from Washington State. Grace has a protection order from the Makah Tribal Council in Washington State that restrains Paul from contacting either her or their children. On April 23, Paul arrives in Eagle Lake at the home of Grace. Paul states that he would like to speak to Grace. Grace asks Paul to leave, he refuses. The police are called and Grace produces a copy of her tribal protection order. Is the order enforceable? Does it matter if the order is handwritten? What about provisions that are unique to Native American courts?

89 How do states enforce a protection order issued from a Tribal Court?

90 Tribal Protection Orders States and territories must enforce Tribal Protection Orders. 18 U.S.C applies to tribal court orders.

91 18 U.S.C Tribal courts have authority to issue protection orders that will be afforded full faith and credit by states and territories. Tribal court must have subject matter and personal jurisdiction.

92 Can a Tribal Court enforce a foreign order?

93 Tribal Protection Order Scenario What if Grace was on Makah tribal land and Paul violated the civil protection order? Grace is a member of the Makah tribe. Paul is not a member of the Makah tribe.

94 18 U.S.C. 2265(e) 18 U.S.C (e) TRIBAL COURT JURISDICTION For purposes of this section, a tribal court shall have full civil jurisdiction to enforce protection orders, including authority to enforce any orders through civil contempt proceedings, exclusion of violators from Indian lands, and other appropriate mechanisms, in matters arising within the authority of the tribe.

95 Enforcement Issues Violators who are members of federally recognized tribes: maximum penalty under ICRA up to 1 year and $5000 No criminal jurisdiction over non-indians (incl. Indians from Canada, Mexico, etc.) Right to counsel under ICRA firearms, etc. Reality: jail space Creative civil remedies

96 Creative Civil Remedies in Tribal Orders Enforceable? In addition to the usual (restitution, stay away, etc): Banishment/Exclusion Tribal Housing Custom and Tradition (chop logs, dig ditches, hunt deer and provide meat, ceremonies, etc.) Employment, holding office, firearms (no 2 nd Amendment right) etc.

97 Tribal Court Recognition of Foreign Protection Orders Enforcement of civil protection orders on tribal lands can be very complex. For more information regarding enforcement of protection orders on tribal land please contact the Southwest Center for Law and Policy (SWCLP) (520) or Tribal Law and Policy Institute (TLPI) at (651)

98 National Center on Full Faith and Credit For assistance, please call: (800) prompt 2. Informational Materials & Brochures Technical Assistance & Problem-Solving (On-Site) Individualized Training / Education

99 Thank You!