Enforcing Domestic Violence Protection Orders Throughout the Country: New Frontiers of Protection for Victims of Domestic Violence

By Susan B. Carbon, Peter MacDonald, and Seema Zeya

[Editor’s note: The following is reprint­ed with permission of the National Council of Juvenile Family Court Judges, Family Violence Department, from 50 JUVENILE AND FAMILY COURT JOURNAL 39 (1999).]

On September 13, 1994, President William J. Clinton signed into law the Violence Against Women Act (VAWA) as Title IV of the Violent Crime Control and Law Enforcement Act of 1994. Among other purposes, the VAWA pro­vides legal protections to battered women and enhances prosecution of domestic violence crimes. One of the most important provisions of VAWA is the section that establishes nationwide enforcement of civil and criminal pro­tection orders in state, tribal, and territo­rial courts. More specifically referred to as the full-faith-and-credit provision, this section directs state, Indian tribes, and U.S. territories to honor “valid” protec-tion orders issued by sister states, tribes, and territories and to treat those foreign orders as if they were their own./1/

The full-faith-and-credit provision of the VAWA poses some serious prob­lems for those involved in the enforce­ment of orders from other jurisdictions. The VAWA is an extraordinary piece of legislation—extraordinary in its brevity and in that it affects the entire country. It does not, however, answer serious questions about procedures for the enforcement of orders across jurisdic­tional lines.

Protecting Battered Women’s Right to Travel

Section 2265 of the VAWA is extremely important not only because it identifies domestic violence as a national prob­lem but, more important, because it reaffirms a battered woman’s right to travel and recognizes the necessity of affording her protection wherever she may be found. Mobility is essential to victims of domestic violence for a vari­ety of reasons. For example, if an abused woman is establishing a house­hold independent of her batterer, she may need to travel or move to another jurisdiction to pursue employment opportunities; she also may find it nec­essary to relocate to another state, terri­tory, or tribe in order to be closer to her personal support network of family and friends. A victim may need to trav­el to protect herself from recurring vio­lence. Indeed, enhancing victim safety is the primary rationale behind passage of the federal law. In short, Section 2265 of the VAWA was enacted to enable victims of domestic violence to relocate quickly and frequently in order to protect themselves from further acts of violence and stalking behavior.

Requirements for “Validity”

As mentioned above, the full-faith-and-credit provision applies only to “valid” protection orders. An order is deemed “valid” if the court that issued it had both subject-matter jurisdiction over the case or controversy in question and personal jurisdiction over the parties. The issuing court must have given the defendant reasonable notice and an opportunity to be heard before the order was entered. In the case of ex parte orders, notice and opportunity to be heard must be afforded in the time required by the state, tribal, or territori­al law and, in any event, within a rea­sonable period of time after the order is issued sufficient to protect the defen-dant’s right to due process.

Section 2265 of the VAWA applies to “any injunction or other order, issued for the purpose of preventing violent or threatening acts or harass­ment against, or contact or communica­tion with or physical proximity to another person, including temporary and final protection orders issued by civil and criminal courts (other than support or child custody orders)….”2 In other words, the full-faith-and-credit provision covers emergency and tem­porary ex parte orders, as well as final civil or criminal protection orders, pro­vided that all such orders meet the due process and jurisdictional requirements of “validity” as set forth in the Act.

As noted above, Section 2266 defines protection orders expressly to exclude “custody and support orders.” Does this mean that custody provisions in protection orders are not entitled to interjurisdictional enforcement under the full-faith-and-credit provision of the VAWA? At present, there is a lack of consensus about whether the mandates of section 2265 extend to custody pro­visions that are included as part of relief in protection orders. On the one hand, a number of experts maintain that the plain language of the federal statute explicitly exempts custody and support provisions. On the other hand, a handful of scholars contend that Congress intended to exclude only cus­tody and support orders that are issued pursuant to custody matters filed in a separate divorce proceeding.

Since the legislative history is silent, and thus the answer remains unclear, attorneys and advocates for victims of domestic violence need to be aware of this potential problem when seeking relief under state, tribal or territorial protection order codes. Beyond that, practitioners should refer to other laws that govern whether custody awards in protection orders are entitled to full faith and credit. In particular, they should review their state Uniform Child Custody Jurisdiction Act (UCCJA) or Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the fed­eral Parental Kidnapping Prevention Act (PKPA). If the custody provisions in a protection order are consistent with the jurisdictional requirement of these laws, then theoretically they should be entitled to interstate enforcement.

Under the full-faith-and-credit provi­sion of the VAWA, mutual protection orders, which generally are denied as protection orders that include prohibi­tions against both parties, are enforce­able only on behalf of the plaintiff (or petitioner) in other states, Indian tribes, and U.S. territories, unless the defendant (or respondent) filed a cross or counter­petition seeking such an order and the court made specific findings that each party was entitled to such an order.

Enforcement of Foreign Orders

The full-faith-and-credit provision of the VAWA directs enforcing states, tribes, and territories to treat foreign protection orders as if they were their own. What does this mean for purpos­es of enforcement? Basically it means the enforcing (nonissuing) jurisdiction must follow three rules:

• It must honor the foreign protection order, even if the protected part would not have been eligible for a protection order in that jurisdiction.

• It must enforce all of the terms of the foreign protection order, even if the order provides relief that would be unavailable under the laws of the enforcing jurisdic­tion.

• It must treat the foreign protection order as if it were issued in that (nonis­suing) jurisdiction and apply whatever sanction or remedy is available under the laws of that (enforcing) state, tribe, or ter­ritory for violations of the foreign order.

Section 2265 is not self-executing. In other words, it does not prescribe the specific enforcement procedures that states, U.S. territories, and Indian tribes must adopt to comply with its mandate. In fact, pursuant to the full-faith-and-credit provision, the only requirement for interstate or interjuris­dictional enforcement of a protection order is that the foreign order be valid as that term is defined in the VAWA. Jurisdictions are free to establish their own procedures for enforcement of for­eign protection orders, provided those procedures do not frustrate or conflict with the intent of the federal law. . .

1 Violence Against Women Act, 18 U.S.C. § 2265.

2 Id. § 2266.