Public Awareness
OPDV Bulletin:
NYS Full Faith and Credit Legislation
On September 23, 1998, upon recommendation of the Office of Court Administration, New York State enacted enabling legislation to promote implementation of the full faith and credit provision of the Violence Against Women Act, 18 U.S.C. 2265. The legislation became effective December 23, 1998.
Although the federal provision preempts state law, it was felt that incorporation of the federal full faith and credit mandate into relevant state statutes would enhance statewide awareness and facilitate enforcement of valid civil and criminal protection orders issued by foreign jurisdictions. New York law provides that "a valid order of protection or temporary order of protection issued by a court of competent jurisdiction in another state, territorial or tribal jurisdiction shall be accorded full faith and credit and enforced as if it were issued by a court within the state for as long as the order remains in effect in the issuing jurisdiction in accordance with sections 2265 and 2266 of Title 18 of the United States Code."
To constitute a valid order of protection, the court issuing the order must have had personal jurisdiction over the parties and over the subject matter of the case in accordance with the law of the issuing jurisdiction. The person against whom the order was issued must have been provided with reasonable notice and an opportunity to be heard prior to issuance of the order, sufficient to protect the person's right to due process. Ex parte orders of protection are entitled to full faith and credit if reasonable notice and an opportunity to be heard are scheduled within the time frame provided by the law of the issuing state, territorial or tribal jurisdiction, and in any event, within a reasonable period of time after issuance of the order. In the case of mutual orders of protection issued against both petitioner/complainant and defendant/respondent, the order or portion of the order sought to be enforced must have been supported by a petition, cross-petition, complaint, or other pleading requesting the order, and a specific judicial finding that the person seeking the order was entitled to the order of protection.
In addition to delineating the federal full faith and credit requirement, the New York legislation extends the mandatory arrest provisions and enhanced menacing and criminal contempt provisions to a violation of an order of protection that was issued by another state, territorial or tribal jurisdiction.
The legislation also specifically authorizes a person entitled to protection under a valid order of protection issued by a court in another state, territorial or tribal jurisdiction to file the order with a court clerk, without a fee, for entry into the Statewide Registry of Orders of Protection and warrants. Notices of filing are not sent to the respondent/defendant. Entry into the statewide computerized registry is not a requirement for enforcement of the order.
All valid protection orders must be enforced according to the terms of the order, even though the order may seem to be invalid in the enforcing jurisdiction (i.e. order of longer duration than is valid in the enforcing jurisdiction, order against a same sex couple that is invalid in the enforcing jurisdiction). If the order appears valid on its face, the enforcing jurisdiction determines how the order is enforced, the arrest authority, and the specific crimes to be charged for violation of the order.
The new law provides a good faith immunity for officers making arrests and it is best to err on the side of safety for the victim. Law enforcement should presume an order of protection is valid if the order correctly names the parties, has not expired, names the issuing court and is signed by a judicial officer.
Therefore, if the order appears valid and there is probable cause that the order has been violated, an arrest should be made. In the event a victim cannot produce a valid copy of an order issued by a foreign jurisdiction, the officer should take steps to ensure the safety of all involved, then attempt to verify the terms and validity of the order through the national or state registries with the issuing jurisdiction.
