The Full Faith and Credit (FF&C) mandate requires states to honor and enforce (or give FF&C to) the orders of protection and to stop stalking issued by other states. The FF&C clause of the U.S. Constitution (article IV, § 1) and the statute, 28 U.S.C. § 1738, require every state to honor and enforce the public records and judicial decisions of other states as if they had issued them themselves. Thus a marriage certificate, driver’s license, or divorce decree granted in one state will be honored by every other state unless the responding party was not afforded due process, particularly if the party was not notified of the action or given the right to contest it in court. States also need not give FF;C when the official action or court decision is against public policy, which is why states refused to give FF;C to polygamous marriages when they were legal in Utah.
A state may also opt through the principle of comity to enforce judgments of another state or country, even when it is not required to do so by the FF;C mandate. Comity is based on the same need for finality of legal proceedings as is FF;C, and also the legal principles of res judicata and issue preclusion, which prevent the same parties from relit gating the same case or claim previously decided by a court.
Need for FF;C
Some of the most violent and coercive batterers and stalkers drive their victims away, often forcing them to seek safety in other states. Many other battered victims travel temporarily across state lines for work or health care or to see family, shop, or vacation. Since abusers generally escalate their violence when their victims leave them or show any independence, victims of domestic violence need immediate police protection in the new state if their abusers threaten them. Yet most cannot obtain new orders of protection in a new state unless there is abuse in that state, and even then there are often long delays and difficulties in serving the abusers with court papers, assuming the victim has access to the courts in the new state. Furthermore, states may not be able to order sufficient protection when the abuser does not reside in the new state. Some abusers keep forcing their victims to flee to ever new states. The clear solution for victims who already have an order of protection from one state is for other states to honor and enforce the previously enacted order, without requiring them to go to court to register the order.
Traditionally U.S. court decisions held that because judicial determinations (such as injunctions and child custody or support orders) were not final judgments and could be modified, they were not entitled to FF;C. Orders of protection and restraining orders to stop domestic violence and stalking are injunctions, which were seen to fall under this exception. Ex parte orders (those that courts give in an emergency before the respondent is given notice or a chance to contest the order) were particularly seen as not entitled to FF;C because they gave the respondent no due process.
The U.S. Supreme Court reversed this train of decisions in Baker v. General Motors Corporation, which held that equitable decrees (which include injunctions such as protective orders) are entitled to FF;C, even though they may not be final and may be modified in the state that issued them. Also supporting this new trend, orders of protection are not concerned with competing orders and are not against public policy.
New Hampshire, West Virginia, Kentucky, and Oregon voluntarily chose to provide comity to some protective orders of other states, but they were the exception and the procedures were generally cumbersome, were little known, and did not cover all orders.
Model for Custody Cases
Until recently child custody orders were not given FF;C because (a) they could always be modified and (b) two or more states could issue conflicting orders. Moving the child to another state was usually grounds for modifying a custody order. This actually encouraged someone who lost custody to abduct the child and shop for a more favorable forum in a new state in the hope of winning custody there. To prevent child abductions and forum shopping, the National Conference of Commissioners of State Laws (NCCUSL), which drafts model legislation for states to adopt, drafted an act to determine when a state must (a) decline custody cases and (b) agree to honor and enforce the custody orders of other states. Because some states were slow in adopting the model legislation or changed it, Congress enacted a law to accomplish the same goals. The federal law was slightly different, and, as federal law, it preempted inconsistent parts of any state’s law. It also spurred the remaining states to enact consistent legislation. Congress took a similar approach so that states would have to give FF&C to the child support orders of other states.
Knowing that FF&C for preexisting protective orders would solve many of these problems, Congress provided language in the Violence Against Women Act (VAWA) I requiring states to give FF&C for orders of protection and/or to stop stalking that were issued by other states, similar to what it did for child custody and child support orders. The FF&C mandate for protective orders was enacted in 1994 and codified at 18 U.S.C. §§ 2265–2266, and covers protective provisions issued as part of other types of actions, such as divorce, paternity, and custody and juvenile cases.
The mandate also includes orders issued to Native Americans by tribal courts. Few tribes had domestic violence and stalking laws when VAWA was first enacted, but many have since enacted such laws.
Another part of VAWA also provided that no state may charge for a protective order if the state receives federal money under that part of the act. Every state accepts this money and certifies that it does not charge for orders of protection. Some states or counties still charge for orders, or order the respondent to pay on the theory that the orders are free to victims.
Police in some states are supposed to give FF&C to any order of protection or to stop stalking that is in effect if the respondent was given notice and an opportunity to be heard, and to honor and enforce it without requiring that the victim first have the order registered in the new state. This is true for ex parte orders as well.
VAWA I included language for FF&C for all protective orders except those that violated due process, namely (a) orders when no notice or opportunity to be heard had been afforded to the respondent, including ex parte orders, and (b) mutual orders unless the respondent had filed a pleading, the original petitioner had been given notice and opportunity to be heard, and the court had made findings that both parties were legally entitled to be given orders. The exception for mutual orders given to respondents is because many courts automatically enter them or encourage the parties to agree to them, even though they usually deny the petitioning party’s due process rights and are more dangerous to victims than no order at all. Congress made clear it did not mean to exempt the part of mutual orders given to the petitioner if notice and opportunity had been given to the respondent, but only the part of such orders given to the respondent without due process.
Many states in their domestic violence statutes prohibit mutual orders or strongly discourage their use, often including similar due process guarantees. Some also require the court to decide if one party was the primary aggressor, the one who caused most of the domestic terror (but not necessarily the one who started the abuse), and not issue an order to that party even if some abuse had been mutual.
Although VAWA I excluded coverage for child custody and child support provisions in protective orders, VAWA II and III made clear that the FF;C mandate included child custody and child support provisions in protective orders.
In 2002 NCCUSL issued another model act for states to give FF;C to other states’ protective orders. Although federal law makes clear that protective provisions in other types of civil and criminal cases are covered by law, and that child custody and child support provisions in protective orders are covered, NCCUSL’s Uniform Interstate Enforcement of Domestic-Violence Protection Orders Act is inconsistent with many of these federal provisions. Almost a third of states have enacted this act, thwarting some domestic violence and stalking victims from receiving the full protection in other states that Congress intended them to get.
- Baker v. General Motors Corporation, 522 U.S. 222 (1998). Goelman, D. M. (2004). Shelter from the storm: Using jurisdictional statutes to protect victims of domestic violence after the Violence Against Women Act of 2000. Columbia Journal of Gender and Law, 13, 101–168.
- Klein, C. F. (1995). Full faith and credit: Interstate enforcement of protection orders under the Violence Against Women Act of 1994. Family Law Quarterly, 29, 253–271.
- Sack, E. J. (2004). Domestic violence across state lines: The Full Faith and Credit clause, congressional power, and interstate enforcement of protection orders. Northwestern University Law Review, 98, 827–906.
- Uniform Interstate Enforcement of Domestic-Violence Protection Orders Act. Retrieved from http://www.nccusl.org/Update/ActSearchResults.asp
- VAWA I, eventually enacted in 1994 as part of the Crime Bill, Pub. L. No. 103-322108 Stat. 1796. 18 U.S.C. §§ 2265–2266.