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THE UNIFORM INTERSTATE ENFORCEMENT OF DOMESTIC VIOLENCE PROTECTION
ORDERS ACT (UIEDVPOA) 2004 House
Judiciary Committee 2001-2002
Kansas Legislative Session TESTIMONY
OF RONALD W. NELSON Suppporting The Uniform Interstate Enforcement
of Domestic Violence Protection Orders Act (UIEDVPA) – 2004HB 2697 Mr. Chairman and Members of the Committee: Good afternoon. My name is Ronald W. Nelson. I am a lawyer
practicing exclusively in the area of domestic relations law in Overland
Park. I am also the current chair of the Family Law Section of the Kansas Bar
Association. My clientele is fairly evenly split
between representation of men and women and I have handled a significant
number of matters, both in the trial and appellate courts regarding issues
surrounding protection orders. Today I am testifying in favor of passage of the Uniform
Interstate Enforcement of Domestic Violence Protection Orders Act (UIEDVPA),
which is the subject of House Bill No. 2697. The Uniform Act is an important bill to provide a uniform
method by which the states can meet the requirements of federal law (as found
in the Federal Violence Against Women Act of 1994) for registration and
enforcement of protection orders issued in other states. At the current time,
there is no easy method by which the orders of other states may be registered
or enforced in the state of Kansas and, as a result, persons seeking to
enforce those orders must use other provisions of Kansas law that are
ill-suited to the specific facts existing in these cases, such as the Uniform
Enforcement of Foreign Judgments Act (K.S.A. 60-3001 et seq., which relates
to enforcement of money judgments). Provision of an easy
manner by which orders from other states may be registered and enforced is an
improtant advance for victims of domestic violence.
Too often victims are required to seek multiple orders by filing multiple
actions in various states because they are not provided with a simple method
by which the orders they have obtained elsewhere may be enforced. The Uniform
Act provides that simple method and guidelines by which the courts may
evaluate which orders should be granted enforcement under federal law and
procedural guidelines set by the states. One of the important goals of
legislation in this area is clarity and direction to those parties who will
be using the Act. In this increasingly complex area in which federal law
intersects with state law, it is best to provide a roadmap in the statutes by
which correct procedures can be completed. Having said that, my review of the
House Bill indicates that it is not the Uniform Act and that there are
important provisions of the Uniform Act (as that Act was amended in 2002)
lacking from the bill. I urge that the Committee, and the legislature, adopt
the Uniform Act as it has been amended in 2002, and that kansas not adopt a
“non-uniform” version of the Act. The advantages of passing a purely uniform
act are manifest: in interpreting the act a court
may look to interpretations made by courts of other states under the same or
similar circumstances and there is little danger that the court will interprete the act in an improper manner using its
non-uniform nature as a reason for that deviation. The Uniform Act has had a
thorough airing nationally and it is best to take advantage of that fact in
consideration of this legislation. Those areas of HB2697
that are different from the Uniform Act and which should be modified back to
that language are:Restore
the Short Title. 1.
Section 1(e) should read: (e) “Protection
order” means any injunction or other temporary or final order,
issued for the purpose of preventing violent or threatening acts against,
harassment of, contact or communication with or physical proximity to another
individual. American case law has generally prohibited the enforcement
in one state the criminal laws and penalties of another state. The way in
which this bill is presently worded would significantly alter current law. 3. The first sentence of Section 3(a) of
the Uniform Act should be reinserted before the existing language in New Sec.
2(a) to read: A person authorized by the law of
this State to seek enforcement of a protection order may seek enforcement of
a valid foreign protection order in a tribunal of this State. The tribunal shall enforce the
terms of the order, including terms that provide relief that a tribunal of
this State would lack power to provide but for this section. The tribunal
shall enforce the order, whether the order was obtained by independent action
or in another proceeding, if it is an order issued in response to a
complaint, petition, or motion filed by or on behalf of an individual seeking
protection. In a proceeding to enforce a foreign protection order, the
tribunal shall follow the procedures of this State for the enforcement of
protection orders. The first sentence of the uniform act is left out of the
present bill and its omission makes clouds the meaning of the paragraph,
since the rest of the sentence relies on the first as its object. 4. Section
3(b) of the Uniform Act should be restored after New Sec. 2(a), which reads: “A
tribunal of this State may not enforce a foreign protection order issued by a
tribunal of a State that does not recognize the standing of a protected
individual to seek enforcement of the order.” This section provides that only those persons who
were granted standing to enforce the protection order in the state in which
that order was issued may seek enforcement of the order. Thus, if a state
obtained the order, only the state can enforce that order, unless that order
provides the provision may be enforced by the individual seeking to enforce
it. 5. The bill removes the uniform procedure for enforcement.
That procedure should be restored to the bill. A major purpose of the bill is
registration of foreign court
orders. Without a provision stating how those orders are to be registered,
the bill leaves open to interpretation how that is to be accomplished. No
other Kansas statute provides an adequate method by which foreign protection
orders may be filed – the Uniform Enforcement of Foreign Judgments Act
relates to money judgments and it is ill suited to the specific needs of
orders of protection (e.g. confidentiality provisions, immediate enforceability
of orders, provision that orders to be registered be final). Neither the
UCCJEA nor the UIFSA provide any method for registration of orders not
covered by their specific terms (i.e. custody and support). While a protected individual is not required to register a
valid foreign protection order in order for it be
enforced, it is highly desirable that the state provide an manner by which
that registration may be accomplished. The procedure set forth in the Uniform
Act provides a clear and simple procedure to accomplish that registration. The
purpose of these procedures is to make it as easy as possible for the
protected individual to register the protection order and thus facilitate its
enforcement. It also makes clear that there is no fee required to register
those orders. The following should be inserted into the bill at an
appropriate place: SECTION
5. REGISTRATION OF ORDER. (a) Any individual may register a foreign
protection order in this State. To register a foreign protection order, an
individual shall present a certified copy of the order to the district court. (b) Upon receipt of a foreign protection
order, the district court shall register the order in accordance with this
section. After the order is registered, the district court clerk shall
furnish to the individual registering the order a certified copy of the
registered order. (c) The district court shall register an
order upon presentation of a copy of a protection order
which has been certified by the issuing State. A registered foreign
protection order that is inaccurate or is not currently in effect must be
corrected or removed from the registry in accordance with the law of this
State. (d) An individual registering a foreign
protection order shall file an affidavit by the protected individual stating
that, to the best of the protected individual's knowledge, the order is
currently in effect. (e) A foreign protection order registered
under this Act may be entered in any existing state or federal registry of
protection orders, in accordance with applicable law. (f) A
fee may not be charged for the registration of a foreign protection order. These changes would enhance the bill and provide a
simplified manner by which these important orders may be enforced, consistent
with federal law and requirements.
___________________________________ Ronald W. Nelson Suite 117; 11900 West 87th
Street Parkway Lenexa, Kansas 66215-4715 Telephone: (913) 312-2500 Email: ron@ronaldnelsonlaw.com |
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