Presentation Transcript

1. Enhancing Safety Across Borders: Crafting Enforceable Protection Orders NAICJA Annual National Tribal Judicial Conference October 2012Mystic Lake Resort Casino Hon. Steven D. Aycock (Ret.) Judge-In-Residence National Council of Juvenile and Family Court Judges Reno, NV
2. Learning Objectives As a result of this workshop, you will be better able to: Draft custody provisions within civil protection orders that are consistent with tribal and federal laws and that are enforceable nationwide; Apply federal full faith and credit laws to foreign protection orders; Assess personal and subject matter jurisdiction issues in the protection order context; and Identify the requirements and procedures to enforce orders to ensure compliance.
3. Idea Generation What is the purpose of a protection order? What is unique about the protection order process? What is full faith and credit?
4. Full Faith and Credit Requirements What elements must be in a protection order for it to be enforceable across jurisdictional lines?
5. Full Faith and Credit Requirements Notice and opportunity to be heard Ex parte order – will be given notice and opportunity within reasonable time Subject matter jurisdiction Personal jurisdiction Order has not expired
6. Scenario 1 Michelle Notah and Steve Lavinsky have been dating for 3 years and have lived together the full three years on tribal lands. Michelle is a member of the Tribe but Steve is not an American Indian. Steve has worked for the Tribe in their IT department for the last 18 months. Steve and Michelle recently purchased a car. Michelle registered the car in her name so they did not have to pay state sales tax or registration fees. Steve has been using the Tribal Health Center for his medical care. Steve began abusing Michelle soon after they started dating, with the abuse escalating in severity over the last year. The abuse is both physical and emotional. Michelle is pregnant with Steve’s child. Michelle has now petitioned to obtain a civil protection order from the Tribal Court.
7. Small Group Questions What should the order say about jurisdiction? What should it say about notice and hearings? What should it say about an expiration date?
8. Contents of Order FINDINGS OF FACT The Court finds that domestic abuse as defined in sec. ____ of Tribal Ordinances, has been committed or may be committed by respondent upon petitioner, IT IS ORDERED that a. __ The respondent shall refrain from committing acts of domestic abuse against the petitioner b. __ The respondent shall avoid the petitioner’s residence and/or any residence temporarily occupied by petitioner Signed
9. Contents of Order This court has jurisdiction over the subject matter and parties in this action pursuant to Section 47.62A of the tribal code. This is an ex parte order and a hearing will be scheduled for Respondent to be heard before a final hearing is held. This order is effective until further order of the Court.
10. http://www.walkingoncommonground.org/files/Project%20Passport%20Model%20Template.pdf http://www.walkingoncommonground.org/files/Project%20Passport%20Model%20Template.pdf
11. Project Passport Encourages the adoption of a recognizable first page that facilitates broader recognition and enforcement of orders of protection across tribal and state jurisdictions. Presents commonly agreed-upon data elements in a standardized format. Makes essential data readily available and easily recognizable. Courts can be more confident that a “foreign protection order” is authentic, valid, and enforceable. Identity of the respondent, relationship of the parties to the order, expiration date of the order, and weapon information all appear.
12. Learning Points Make sure orders have all the requisite elements to be enforced under VAWA Full Faith and Credit provisions. Make orders as detailed as necessary to protect victims and hold batterers accountable. Consider using Project Passport first page.
13. Enforcement Questions Can Michelle have her Tribal Court order enforced in Tribe B? What, if anything, is Michele required to do before the order can be enforced in Tribe B? Are there any defenses Steve could assert?
14. More Questions 1. Is the provision that Steve provide economic relief in the form of salmon and steelhead enforceable? 2. If the order says on its face that it is enforceable throughout the life of Michelle can Tribe B enforce it five years later? Assume that the law in Tribe B says orders are only valid for 2 years maximum. 3. If the order says that enforcement of a violation can only be by a criminal contempt proceeding and not by a criminal prosecution, can Tribe B enforce it through a criminal prosecution? 4. If Michele registers the order in Tribe B, is Steve entitled to notice?
15. Learning Points Protection orders that comply with the minimum requirements of VAWA are enforceable in every jurisdiction. Economic relief may be vitally important to the safety and security of the victim and children. Issuing court determines substantive content of the order. Enforcing court uses its own procedural mechanisms to enforce the order.
16. Resources National Council of Juvenile and Family Court Judges – www.ncjfcj.org National Center on Protection Orders and Full Faith and Credit - http://www.bwjp.org/ncffc_home.aspx Steve Aycock – steven_aycock@ncjfcj.org 775-784-4463