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MARIAN P. OPALA, Supreme Court, Room 238, State Capitol, Oklahoma City, OK 73105, Chair

DEBORAH E. BEHR, Office of Attorney General, Department of Law, P.O. Box 110300, Juneau,

AK 99811

WANDA WILLIAMS FINNIE, Office of the Public Defender, 121 Plumstead Drive, Freehold,

NJ 07728

SHAUN P. HAAS, Legislative Council, Suite 401, 1 E. Main Street, Madison, WI 53701-2536

ROGER P. MORGAN, P.O. Box 588, Mystic, CT 06355

ANN BOWEN POULIN, Villanova University School of Law, 299 North Spring Mill Road, Garey Hall,

Villanova, PA 19085

BATTLE R. ROBINSON, 104 W. Market Street, Georgetown, DE 19947

ROBERT B. WEBSTER, 255 S. Old Woodward Avenue, 3rd Floor, Birmingham, MI 48009

ANDREW C. SPIROPOULOS, Oklahoma City University, School of Law, 2501 N. Blackwelder,

Oklahoma City, OK 73106, Reporter

GENE N. LEBRUN, P.O. Box 8250, 9th Floor, 909 St. Joseph Street, Rapid City, SD 57709, President

MARTHA T. STARKEY, 10333 N. Meridian Street, Suite 100, Indianapolis, IN 46290, Division Chair

JAMES R. RIEHL, 614 Division Street, MS-25, Port Orchard, WA 98366-4684

FRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Road, Norman,

OK 73019, Executive Director

WILLIAM J. PIERCE, 1505 Roxbury Road, Ann Arbor, MI 48104, Executive Director Emeritus

The Uniform Interstate Enforcement of Domestic Violence Orders Act ("the Act") provides a uniform mechanism for according full faith and credit to foreign domestic violence orders. The need for such a mechanism was created by the recently enacted federal Violence Against Women Act ("VAWA"), 18 U.S.C. Sec. 2265, which requires States to accord full and faith credit to the domestic violence orders of other States. VAWA, however, while mandating the grant of full faith and credit, is either silent or ambiguous regarding several important questions that must be answered in order to establish an effective system for the interstate enforcement of these orders.

First, VAWA does not sufficiently explain the meaning of core requirements of the federal law. For example, VAWA requires that States enforce the orders of other States as if they were the orders of the enforcing State. This mandate, however, does not answer the question of whether States are required to enforce provisions of foreign orders that would not be authorized by the law of the enforcing State. This question, and others, must be answered if there is to be effective uniform enforcement of protective orders. Second, VAWA does not specify the enforcement procedures States must establish to comply with the federal mandate. For example, VAWA is silent on whether individuals seeking the enforcement of a protective order must register or file the order with the enforcing State before action can be taken on their behalf.

The Act, thus, has two main purposes. First, it defines the meaning of full faith and credit in the context of the enforcement of domestics violence orders. Second, it establishes uniform procedures for the effective interstate enforcement of domestic violence orders.

The Act first defines what it means to accord full faith and credit to domestic violence orders. VAWA requires that States enforce the protective orders of other States as if they were the orders of the enforcing States. Full faith and credit must be accorded to these orders if the issuing tribunals had jurisdiction over both the parties and the matter under the law of the issuing State and if the individual against whom the order is enforced was provided reasonable notice and opportunity to be heard consistent with the right to due process. If the order was obtained ex parte, this notice and opportunity to be heard must be provided within a reasonable time.

The Act implements this core requirement of VAWA. It also, unlike VAWA, makes it clear that all the terms of the orders of the issuing States must be enforced, even if the law of the enforcing State would not authorize particular terms of the orders. The Act also provides that all protective orders, including those issued by courts as part of a criminal proceeding, satisfying the criteria of validity, must be accorded full faith and credit. Terms of orders, however, that concern support and custody matters are not enforceable under this Act. In addition, protective orders issued against a protected individual are also not enforceable if they were not issued in response to a written pleading filed by the respondent and if the issuing tribunal did not make specific findings against both parties.

The Act also provides uniform procedures for the interstate enforcement of domestic violence orders. The Act envisions that the enforcement of foreign protective orders will require law enforcement officers of enforcing States to rely on probable cause judgments that a valid order has been violated. The Act states that if officers, relying on the totality of the circumstances, determine that there is a probable cause to believe that a valid protective order has been violated, the order will be enforced. The individual against whom the order is enforced will have sufficient opportunity to demonstrate that the order is invalid when the case is brought before the enforcing tribunal. Law enforcement officers, as well as other government agents, will be encouraged to rely on probable cause judgments by the Act's inclusion of a broad immunity provision, protecting agents of the government acting in good faith.

The Act, once again filling a gap left by VAWA, does not require individuals seeking the enforcement of a protective order to register or file the order with the enforcing State. The Act does, however, include an optional registration process. This process permits, but does not require, a protected individual to register a protective order by presenting a copy of the order to a responsible state agency or any state officer or agency. The protected individual, for the purpose of registration, may demonstrate the validity of the order by filing an affidavit that, to the best of the individual's knowledge, the order is valid. The purpose of these procedures is to make it as easy as possible for the protected individual to register the order and facilitate its enforcement.

SECTION 1. DEFINITIONS. In this [Act]:

(1) "Enforcing State" means the State whose tribunal enforces a foreign protective order.

(2) "Foreign protective order" means a protective order issued by a tribal of another State.

(3 ) "Issuing State " means the State whose tribunal issues a protective order.

(4) "Protected individual" means an individual protected by a protective order.

(5) "Protective order" means an injunction or other order issued by a tribunal to prevent violent or threatening acts or harassment by an individual against, contact or communication with, or physical proximity to another individual. The term includes temporary and final orders issued by civil and criminal courts, whether or not the order was obtained by filing an independent action or is an order pendente lite in another proceeding if a civil order was issued in response to a complaint, petition, or motion filed by or on behalf of an individual seeking protection. The term does not include an order for support or custody.

(6) "State" means a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band, or Alaskan native village, which is recognized by federal law or formally acknowledged by a State.

(7) "Tribunal" means an entity authorized by the law of a State to issue, modify, or enforce a protective order.

The definition of "protective order" is adapted from the Violence Against Women Act, 18 U.S.C. Sec. 2266, which requires States to accord full faith and credit to valid foreign protective orders. This definition includes orders issued by criminal courts in the context of a criminal case. It is not purpose of this section, or that of the federal mandate, either to surpass the constitutional restraints against States enforcing the criminal laws of other States or to disturb the normal process of interstate criminal law enforcement. Rather, these provisions are intended to facilitate the enforcement of orders issued by States which allow the equivalent of civil protective orders to be issued by a criminal court.

The definition of "protective order" specifically excludes custody and support orders. The provisions of these orders should be enforced using the process provided in the specific laws governing the issuance, modification, and enforcement of these orders, including, but not limited to, the Uniform Child Custody Jurisdiction Act, the Uniform Child Custody Jurisdiction and Enforcement Act, the federal Parental Kidnaping Prevention Act, and the Uniform Interstate Family Support Act.

In addition, the term "protective order" includes an order modifying a previous order. Thus, a modified order, is enforceable, under the Act, in the same manner as a newly issued order.

The Violence Against Women Act requires that States accord full faith and credit to tribal protective orders. Like state orders, tribal orders must satisfy the criteria for validity, as defined in Section 2, in order to qualify for interstate enforcement.

The Act uses the term "tribunal, rather than "court," in order to accommodate States that rely upon administrative or other entities to issue, modify, or enforce protective orders.

SECTION 2. ENFORCEMENT OF ORDERS.

(a) A valid foreign protective order, including an order issued before the effective date of this [Act], must be accorded full faith and credit by a tribunal of this State. A tribunal of this State shall enforce the terms of a valid foreign protective order as if the order were issued by a tribunal of this State.

(b) A protective order is valid if it:

(1) states the name of the protected individual and the individual against whom enforcement is sought;

(2) has not expired;

(3) was issued by a tribunal that had jurisdiction over the parties and matter under the law of the issuing State; and

(4) was issued after the respondent was provided with reasonable notice and had an opportunity to be heard before the tribunal issued the order or, in the case of an order ex parte, the respondent was granted notice and opportunity to be heard within a reasonable time after the issuing of the order, consistent with the rights of the respondent to due process.

(c) Proof that a foreign protective order lacked any one of the indicia of validity described in subsection (b) is an affirmative defense to any action seeking enforcement of the order.

(d) A law enforcement officer or agency of this State, upon determining that there is probable cause to believe that a valid foreign protective order has been violated, shall enforce the order as if it were the order of a tribunal of this State. In determining whether there is probable cause to believe that a valid foreign protective order has been violated, a law enforcement officer or agency may rely upon:

(1) a copy of the order, if the order is valid on its face;

(2) oral statements by the petitioner or respondent;

(3) information obtained from any state or federal registries of protective orders or through communication with law enforcement officers, agencies, or tribunals; or

(4) any other source of information relevant to determining whether there is probable cause to believe that a valid foreign protective order has been violated.

(e) If a law enforcement officer or agency of this State determines that an otherwise valid foreign protective order cannot be enforced because the respondent has not been notified or served with the order, the officer or agency shall notify the respondent of the terms and conditions of the order and make a reasonable effort to serve the order upon the respondent.

(f) Registration or filing an order with the enforcing State is not required for the enforcement of valid foreign protective orders pursuant to this [Act].

Subsection (a) implements the core purpose of the federal full faith and credit mandate of the Violence Against Women Act, 18 U.S.C. Sec. 2265(a). This section requires tribunals of enforcing States to enforce the terms of protective orders of other States as if they were the orders of the enforcing State. This provision means that the tribunals of enforcing States should enforce the specific terms of a foreign protective order even if their state law would not allow the relief in question. For example, if the law of the issuing State allows protective orders to remain effective for a longer period than is allowed by the enforcing State, the tribunal of the enforcing State should enforce the order for the time allowed by the issuing State.

In order to facilitate the interstate enforcement of foreign protective orders, States should strongly consider requiring tribunals that issue protective orders to state clearly that these orders are entitled to full faith and credit under both federal and state law and, thus, will be enforced in other States. In addition, States should consider adopting a standard certification or confirmation form stating the protective order issued by their tribunals satisfies the criteria for validity articulated in subsection (b), thus qualifying the protective order for interstate enforcement.

As provided in subsection (a), the enforcement mechanisms established by the Act apply to orders that were issued before the effective date of the Act. This provision is not an unconstitutional ex post facto law because, under the Full Faith and Credit Clause of the Constitution of the United States, valid foreign protective orders have always been entitled to full faith and credit enforcement. Both the federal Violence Against Women Act and this Act only ensure that States carry out their constitutional responsibility to enforce these orders.

The enforcement procedures in subsection (d) rely on the sound exercise of the judgment of law enforcement officers and agencies to determine whether there exists probable cause to believe that a valid foreign protective order has been violated. These procedures anticipate that there will be many instances in which the protected individual does not have, or cannot, under the circumstances, produce a paper copy of the foreign protective order. In these instances, law enforcement officers and agencies are expected, after assuming control over the parties, to obtain information from all available sources, including interviewing the parties, contacting other law enforcement agencies, and examining copies of any orders, to determine whether there is a valid protective order in effect. If the officer or agency finds, after considering the totality of the circumstances, that there is probable cause to believe that a valid foreign protective order has been violated, he or she, if the enforcing State's laws permit arrest, should arrest the respondent. If it is later determined that no such order was in place or the order was otherwise unenforceable, law enforcement officers, agencies, or other state officials will be protected by the immunity provision of Section 5 for actions taken in good faith.

The respondent's rights to due process are protected by the law enforcement officer or agency's probable cause inquiry and by the opportunity to raise defenses in the enforcement proceeding, as provided in subsection (c). If, for example, the respondent was not provided with reasonable notice and opportunity to be heard by the tribunal of the State issuing the protective order, the enforcing tribunal shall not enforce the order. Thus, the interstate enforcement of a valid foreign protective order, even without a prior hearing, does not deprive the respondent of any rights to due process because the respondent was provided with reasonable notice and opportunity to be heard when the order was issued.

The enforcement mechanisms established by the Act do not require the presentation by the petitioner of an authenticated copy of the foreign protective order. While States, as required by the Constitution and federal statutory law, including 28 U.S.C. Sec. 1738, must accord properly authenticated foreign judgments full faith and credit enforcement, they may choose to provide full faith and credit to foreign orders they would not be required to enforce under the provisions of the Constitution or other federal law. By adopting this Act, States have chosen to give that extra measure of full and faith credit to foreign protective orders.

Subsection (e) provides that if a law enforcement officer or agency discovers in the course of a probable cause investigation that the respondent has not been notified of the issuance of or served with an otherwise valid foreign protective, the officer or agency should then notify the respondent of the terms and conditions of the protective order and make a reasonable effort to serve the respondent with the order. Once served, the respondent must obey the protective order.

Subsection (f) makes clear that, if a State adopts either its own process for the registration or filing of foreign protective orders or adopts the process provided in Section 3, the State shall not require the registration or filing of a foreign protective order for enforcement.

[SECTION 3. REGISTRATION OF ORDERS.

(a) A protected individual, or someone acting the individual's behalf, may register a foreign protective order with this State. To register a foreign protective order for enforcement by the tribunals of this State, a protected individual shall:

(1) present a copy of the order to the state agency responsible for the registration of such orders; or

(2) present a copy of the foreign protective order to any law enforcement officer or agency in the State and request that the order be registered with the agency responsible for the registration of such orders.

(b) Upon receipt of a protective order, the responsible agency shall register the order in accordance this section. After the order is registered, the responsible agency shall provide the petitioner a certified copy of the registered order.

(c) The agency of this State responsible for the registration of foreign protective orders shall register a valid foreign protective order for enforcement. Presentation of a certified or true copy of a foreign protective order is not required as a condition for registration under this [Act], unless a conflicting certified copy is presented by the respondent or the individual against whom enforcement is sought. With the permission of the petitioner, the agency of this State responsible for the registration of foreign protective orders may communicate with the appropriate agency of the issuing State to determine whether a particular order was issued against and served upon the respondent.

(d) A protected individual may demonstrate that a foreign protective order is valid by filing an affidavit that, to the best of that individual's knowledge, the order is valid.

(e) All foreign protective orders registered under this [Act] must be entered in any existing state or federal registries of protective orders.

[(f) A fee may not be charged for the registration of a foreign protective order.]]

This section is bracketed because States may prefer to use their existing systems of registration to register foreign protective orders. While a protected individual is not required to register a valid foreign protective order in order for it be enforced, it is highly desirable that States provide an optional registration process. A registration system supplies law enforcement officers and agencies more accurate information, more quickly, about both the existence and status of foreign protective orders and their terms and conditions. An enforcing State may facilitate the collection and dissemination of this information either by establishing a central registry or by providing a process by which information regarding registered orders is distributed to law enforcement officers and agencies across the State. In implementing a registration system, however, enforcing States should strongly consider keeping these protective orders under seal. The purpose of more effectively protecting victims of domestic violence will be undermined if respondents can use the process of registration to locate the very people who are trying to escape from them.

If an order is registered under this section, the petitioner is expected to inform the enforcing State of any modifications to the registered protective order.

Subsection (f) is bracketed because some States may wish to charge a fee for registration.

SECTION 4. CROSS-PETITION OR COUNTER PETITION. A foreign protective order issued against a protected individual seeking enforcement of a protective order under this [Act] is not entitled to full faith and credit unless:

(1) the respondent filed a cross-petition or counter petition, complaint, or other written pleading seeking a protective order; and

(2) the issuing tribunal made specific findings against both the petitioner and the respondent.

This section, adapted from the federal Violence Against Women Act, 18 U.S.C. Sec. 2265(c), addresses foreign protective orders issued against both the petitioner and the respondent. Such a foreign protective order will not be enforced against a protected individual when the respondent did not file a cross-petition, counter petition, complaint, or any other written pleading seeking a protective order. If a respondent can prove that he or she made a specific request for relief and that the issuing tribunal made specific findings that the respondent was entitled to the requested relief, the protective orders will be enforced against the petitioner, in the same manner as against the respondent.

SECTION 5. IMMUNITY. This State or a local government entity or a law enforcement officer, law enforcement agency, prosecuting attorney, clerk of court, or any state or local government official acting in an official capacity is immune from civil and criminal liability for acts or omissions arising out of a decision related to the registration of a foreign protective order or to the detention or arrest of an alleged violator of a foreign protective order if the act or omission is done in good faith in an effort to comply with the provisions of this [Act].

States may, if they wish, substitute their own immunity provisions, so long as law enforcement officers, agencies, or other officials involved in the enforcement of foreign protective orders, under the immunity scheme chosen, are not dissuaded from enforcing such orders because of the fear of potential liability. This immunity provision includes States, local government entities, and all state and local government officials acting in their official capacity in order to prevent those seeking the imposition of criminal and civil liability for acts or omissions done in good faith in an effort to comply with the provisions of this Act from circumventing this immunity provision.

SECTION 6. OTHER REMEDIES. Pursuit of the remedies provided in this [Act] does not preclude the petitioner from pursuing other legal or equitable remedies against the respondent.

This section clarifies that the protective orders enforced under the Act are not the only means of protection available to victims of domestic violence. Custody orders, for example, are often used to provide protection for victims of domestic violence. Petitioners are entitled to, and should, use the remedies available under statutes such as the Uniform Child Custody Jurisdiction Act, the Uniform Child Custody Jurisdiction and Enforcement Act, and the federal Parental Kidnaping Prevention Act. The specific procedures of those laws should govern questions arising under them. In addition to these statutory remedies, other remedies, such as tort actions and criminal prosecution, are left undisturbed by this Act.

SECTION 7. EFFECTIVE DATE. This [Act] takes effect on ____________________ .