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Enforcing Domestic Violence Orders Across Country Lines

Enforcing Domestic Violence Orders Across Country Lines. Linda D. Elrod, Richard S. Righter Distinguished Professor of Law, Director of Children and Family Law Center, Washburn University School of Law, June 20, 2014. History of Interstate Order Enforcement Full faith and credit

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Enforcing Domestic Violence Orders Across Country Lines

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  1. Enforcing Domestic Violence Orders Across Country Lines Linda D. Elrod, Richard S. Righter Distinguished Professor of Law, Director of Children and Family Law Center, Washburn University School of Law, June 20, 2014

  2. History of Interstate Order Enforcement • Full faith and credit • Uniform Enforcement of Foreign Judgments Act • Uniform Interstate Family Support Act • Full Faith and Credit to Child Support Orders Act • Parental Kidnapping Prevention Act • Uniform Child Custody Jurisdiction and Enforcement Act (as amended 2013 for U.S. implementation of Hague Convention on Protection of Children)

  3. Enforcement of Protection Orders • 1994 Violence Against Women Act, Pub. L. No. 103-322, 108 Stat. 1902-55 (VAWA), last reenacted 2013 • Full faith and credit to protection orders of other states. 18 U.S.C. § 2265. • Uniform Interstate Enforcement of Domestic Violence Protection Orders Act (2000) (last amended in 2002) (UIEDVPOA) • 9 U.L.A. 28 (Supp. 2003) • See E. Sack, Domestic Violence Across State Lines: The Full Faith and Credit Clause, Congressional Power, and the Interstate Enforcement of Protection Orders, 98 Northwestern U. L. Rev. 827 (2004).

  4. VAWA – Immigrant Victim of Abuse • VAWA self-petitions for immigrants battered or subjected to extreme cruelty by U.S. citizen or lawful residence spouse or parent or child over age 21, INA § 204(a)(1)(A)(iii-v) • VAWA cancellation of removal and VAWA suspension of deportation • U visas - immigrant victims - INA § 101(a)(15)(U) • T visas - immigrant victims of either sex or labor trafficking (INA §101(a)(15)(T)(ii))

  5. International Cooperation • Comity • Hague Conventions on • Civil Aspects of International Child Abduction (1980) • Intercountry Cooperation with Respect of International Adoption (1993) • Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996) • Protection of Adults (2000) • International Enforcement of Child Support and Other Forms of Family Maintenance (2007)

  6. A New Hague Convention? • 2011 Council of Hague Conference on Private International Law - feasibility study • March 2012 - Recognition and Enforcement of Foreign Civil Protection Orders: A Preliminary Note • February 2014 – Report of the Meeting of the Experts’ Group on the Recognition and Enforcement of Civil Protection Orders • April 2014 - Council will continue to investigate and gather more statistics

  7. Uniform Law Commission of Canada • 2011 – Uniform Enforcement of Canadian Judgments and Decrees Act (UECJDA) • facilitates recognition and enforcement of United States and other protection orders if certain requirements are met • Unless foreign state of origin has been excluded expressly from the provisions of the act.

  8. Recognition and Enforcement of Canadian Domestic Violence Protection Orders • 2013 - Uniform Law Commission appointed drafting committee • Meetings - October, 2013; March, 2014 • First reading, July 2014; possible adoption July 2015 • For most current drafts, see www.uniformlaws.org

  9. Similarities • Both recognize DV protection orders without requiring the party seeking enforcement to register the order • Both require a law enforcement agency or court to respect a facially valid order until successfully challenged after the request for emergency relief has passed.

  10. Nonjudicial Enforcement of Order Sec. 3 • Law enforcement officer of this State, upon determination of probable cause to believe that a valid Canadian protection order exists and has been violated, shall enforce the order as if it were an order of a tribunal of this State.

  11. Other similarities • Focus on emergency protection • Only applies to court orders • Recognizes and enforces only the parts of the Canadian protection order requiring no contact • Only applies to Canadian civil orders, not criminal

  12. Optional Registration, Sec. 5 • Present certified copy to [state agency responsible for registration of such orders]; or • Present a certified copy of the order to [an agency designated by the State] and request that the order be registered with [state agency responsible for registration of such orders].

  13. Attached Sources • Current Draft of Recognition and Enforcement of Canadian Domestic Violence Protection Orders • Excerpt from March 19, 2014 Memo from Merle H. Weiner to Drafting Committee on RECDVPO • Hague Conference on Private International Law, Report of the Meeting of the Experts’ Group on the Recognition and Enforcement of Foreign Civil Protection Orders

  14. Some additional reading • Shani M. King, The Hague Convention and Domestic Violence: Proposals for Balancing the Policies of Discouraging Child Abduction and Protecting Children from Domestic Violence, 47 Fam. L. Q. 299 (2013) • Merle H. Weiner, International Child Abduction and the Escape from Domestic Violence, 69 Fordham L. Rev. 593 (2000)

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