FULL FAITH AND CREDIT OF OUT OF STATE ORDERS in dv

FULL FAITH AND CREDIT OF OUT OF STATE ORDERS in dv

7.1 FEDERAL STATUTORY OVERVIEW

7.1.1 The Full Faith and Credit provision of the Violence Against Women Act (VAWA),

18 U.S.C.A. 2265, et seq., requires states and Indian tribes to enforce protection

orders issued by other states and Indian tribes as if the orders had been issued by the

non-issuing/enforcing state or Indian tribe. In addition, an enforcing state must

enforce a protection order from another state even if the petitioner would not be

eligible for a protection order in the enforcing state.

7.1.2 Additionally, all orders of protection shall have the same force and effect on military

installations as such order has within the jurisdiction of the court that issued the order

under the Armed Forces Domestic Security Act, 10 U.S.C. 1561a.

7.2 PROTECTION ORDERS COVERED BY §2265

7.2.1 Definition of Protection Order - The Full Faith and Credit provision applies to any

injunction or other order issued for the purpose of preventing violent or threatening

acts, or harassment against, contact or communication with, or physical proximity to

another person, including any temporary or final order issued by a civil and criminal

court whether obtained by filing an independent action or as a pendente lite order in

another proceeding so long as any civil order was issued in response to a complaint,

petition or motion filed by or on behalf of a person seeking the protection. In other

words, it extends to temporary and final, civil and criminal protection orders (e.g.,

stay away or no-contact orders that are part of a defendant’s conditions of release or

bail).

7.2.2 Final and Ex Parte Orders

A. Every state, subdivision thereof, and Indian tribe must accord full faith and

credit to both final and ex parte protection orders.

B. In terms of final protection orders, the statute provides that a final order must

be enforced if:

1. It was issued by a court that had personal and subject matter

jurisdiction to issue the order, and

2. The respondent was provided with reasonable notice and the

opportunity to be heard sufficient to protect that person’s right to due

process.

C. 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 period of time after the order is issued, sufficient to

protect the opposing party’s right to due process.

7.2.3 Mutual Protection Orders - Should the issuing court enter a protection order with

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prohibitions against both the respondent and the petitioner, only the provisions in

favor of the petitioner (those constraining the respondent) are entitled to enforcement

in another state, tribe, or territory unless:

A. the respondent filed a separate petition or pleading seeking such an order,

and

B. the court made specific findings that both parties were entitled to such a

protection order.

Pursuant to §2265, a court in a jurisdiction other than the jurisdiction that

issued the order shall not enforce a mutual order against a petitioner unless the

portions that impose prohibitions on the petitioner meet the above legal criteria.

7.3 NEW JERSEY LAW AND PROCEDURE

7.3.1 In May 2000, the New Jersey Judiciary adopted procedures to implement the

registration of out of state orders (Appendix 21). The procedures include:

A. Procedures for Family Division staff to follow to register the orders.

B. FACTS codes and procedures (part of the FACTS FV Docket User’s Guide

distributed by the Automated Trial Court Systems Unit).

C. Certification forms for incoming orders and for outgoing New Jersey orders.

7.3.2 The procedures accommodate the out-of-state order’s expiration date in FACTS and

the practice of other states concerning certification for Restraining Orders. The

primary benefit to registration for the victim is that the order will be on the statewide

DVCR to which police throughout the state have access on an immediate, round-theclock

basis.

7.3.3 These procedures:

A. Establish these registered cases without adding new cases to the Family

Division statistical report;

B. Accommodate the expiration date of out-of-state orders;

C. Identify out-of-state orders to users, particularly law enforcement users of the

DVCR;

D. Prohibit an out-of-state order to be reopened or modified; and

E. Continue to require that Full Faith and Credit be honored by law enforcement

and the courts on those orders that have not been registered.

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7.4 PROCESS

7.4.1 The victim (plaintiff) who elects to register an out-of-state restraining order will

present the order at a county Family Division Intake Domestic Violence Unit. The

plaintiff will complete a Victim Information Sheet and complete an Out-of-State

certification form (See Appendix 21).

7.4.2 The Domestic Violence Unit will review the order, certification and Victim

Information Sheet. The staff member will call the issuing court immediately or

within one business day. The staff member will send by facsimile the order and

certification form to the issuing court and request confirmation of the order as

presented by return fax. The Family Division Manager or the Domestic Violence

Team Leader may review the contact with the issuing court to resolve questions

concerning confirmation.

7.4.3 Upon confirmation, the staff member will complete the confirmation form, which

will allow for the establishment and docketing of the case on FACTS.

7.4.4 The establishment process will include:

A. A new initiating document, the OUT-OF-STATE DV RO, entered in the

initiating document field, will be combined with a case status reason code

that identifies the case as an Out-of-State Order;

B. The field MUNICIPALITY OF OFFENSE becomes a required field with a

change from numeric to alphanumeric to allow the state to be identified, e.g.

A9901 for an Out-of-State order from Pennsylvania;

C. All OUT-OF-STATE DV RO initiating document cases would be ignored in

the statistical count and cannot be reopened.

7.4.5 The expiration date will be identified in the system and appear on the registry based

on the use of a relief code that is unique to this case type. The expiration date will be

entered by the user and appear in the registry in the COMMENTS field.

7.4.6 Upon completion of case establishment, the order will be stamped with a statement

confirming that it has been verified and registered as of the case establishment date

and providing the New Jersey docket number. The victim/plaintiff should be

provided with the order, a copy faxed to the police departments identified by the

plaintiff, and a copy placed in the Family Division file that was created when the

system assigned the New Jersey number as part of the registration process.

7.4.7 The Attorney General’s guidelines to law enforcement officers state that the

registration of an order is not required to enforce the order. The Division of

Criminal Justice has assured that Full Faith and Credit will be emphasized in all

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police training to continue protection of all victims, regardless of whether they have

sought the additional assurance of recording their out-of-state order with New Jersey.