Posted On: April 22, 2012 by Stephen Bilkis

Court Determines Jurisdiction in Domestic Violence Case

Domestic violence cases are not stationary crimes. Frequently, one party will flee to a different state, when that happens it is important that the court orders that are in effect follow them. Prior to 1994, that was not the case. The federal government stepped in and issued the Violence Against Women Act of 1994 which requires that the states give full faith and credit to any order of protection issued by a court in any state. There are some restrictions though. Article IV, Section 1 of the Constitution of the United States of America requires that Full Faith and Credit is given to the public acts, records, and judicial proceedings of all of the states. Congress is required to prescribe the manner in which the orders of the states are to be proved and given effect. With these orders, Congress made their intent to protect women who cross state lines, obvious.

Whenever a situation arises where the New York courts must make a determination regarding a domestic violence order from another state, they must take all of this into consideration. It is not enough to have a protection order in place from a different jurisdiction. The victim must also be able to prove that the person whom the order is against has been given due process under the law. That can be tricky. A New York Criminal Lawyer said when a person obtains an order of protection, it becomes important that they ensure that the court personnel handle all of the paperwork correctly. If the paperwork does not demonstrate that the person was served correctly and given the opportunity to address the order in court, there is not proof of due process and the order may not be valid.

In one case out of Richmond County, in April 7, 1997, a woman was in Staten Island when she noticed that her estranged father was following her. There was a protection order in place in New Jersey stating that her father was not allowed to harass, stalk, or follow her mother or any other member of the family pursuant to a domestic violence problem within the home. Her mother took out the order, but she was named as a secondary party of the protection order.

The question before the court was whether the order from New Jersey could be enforced in the New York venue. Several problems presented themselves. A New York Criminal Lawyer said the first problem was that the crime committed was different in New York than the one that would have been committed if the man had committed his offense in New Jersey. The crime that was named on the protection order was the one that he would have been guilty of in New Jersey.

When addressing this issue the New York court decided that according to the federal statute, New York could enforce the order that was written in New Jersey. However, the crime would have to be the one that the elements of his actions made him guilty of in New York. That information aside, in order to charge the man with anything, they would need to ensure that New Jersey had afforded due process. However, when they reviewed the paperwork, the section on return of service was not completely filled out. It had been marked that he had been served in person; however, the information on who had served the paperwork had been left empty. Ultimately, the court could not determine that due process had been afforded in this case and the court dismissed the charges. The prosecutor contacted New Jersey and obtained an affidavit of validity. He then re-filed the charges and the case was accepted. The man was arrested for the offense.

Stephen Bilkis & Associates have lawyers are well versed in the intricacies of enforcing orders of protection. We have convenient offices throughout New York and Metropolitan area. Do not risk your life! Our Family lawyers will help you protect your family from domestic violence, sex crimes or assault.