2004 Regular Session
To: Judiciary, Division B
By: Senator(s) Tollison
AN ACT TO ENACT THE UNIFORM INTERSTATE ENFORCEMENT OF DOMESTIC VIOLENCE PROTECTION ORDERS ACT; TO SET FORTH DEFINITIONS; TO PROVIDE FOR THE UNIFORM ENFORCEMENT OF JUDICIAL ORDERS; TO PROVIDE FOR UNIFORM NONJUDICIAL ENFORCEMENT OF PROTECTION ORDERS; TO PROVIDE THAT THE STATE DEPARTMENT OF HUMAN SERVICES REGISTER FOREIGN PROTECTION ORDERS IN THIS STATE; TO PROVIDE CIVIL AND CRIMINAL IMMUNITY FOR THOSE PERSONS ACTING IN AN OFFICIAL CAPACITY REGARDING THE REGISTRATION OR ENFORCEMENT OF A FOREIGN PROTECTION ORDER; TO AMEND SECTIONS 93-21-13 AND 93-21-16, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Short title. The provisions of Sections 1 through 9 of this act may be cited as the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.
SECTION 2. Definitions. The following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:
(a) "Foreign protection order" means a protection order issued by a tribunal of another state.
(b) "Issuing state" means the state whose tribunal issues a protection order.
(c) "Mutual foreign protection order" means a foreign protection order that includes provisions issued in favor of both the protected individual seeking enforcement of the order and the respondent.
(d) "Protected individual" means an individual protected by a protection order.
(e) "Protection order" means an injunction or other order, issued by a tribunal under the domestic violence laws, family violence laws or anti-stalking laws of the issuing state, to prevent an individual from engaging in violent or threatening acts against, harassment of, contact or communication with, or physical proximity to another individual.
(f) "Respondent" means the individual against whom enforcement of a protection order is sought.
(g) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an American Indian tribe or band that has jurisdiction to issue protection orders.
(h) "Tribunal" means a court, agency, or other entity authorized by law to issue or modify a protection order.
SECTION 3. Judicial enforcement of order.
(1) A tribunal of this state shall enforce the terms of a valid foreign protection order, including terms that provide relief that a tribunal of this state would lack power to provide but for this section. A tribunal of this state shall enforce a valid foreign protection order issued by a tribunal, 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. A tribunal of this state may not enforce an order issued by a tribunal that does not recognize the standing of a protected individual to seek enforcement of the order. In a proceeding to enforce a foreign protection order, the tribunal shall follow the procedures of this state for the enforcement of protection orders.
(2) A tribunal of this state shall enforce the provisions of a valid foreign protection order which governs custody and visitation. The custody and visitation provisions of the order must have been issued in accordance with the jurisdictional requirements governing the issuance of custody and visitation orders in the issuing state.
(3) A tribunal of this state may not enforce under this chapter an order or provision of an order with respect to support.
(4) A protection order is valid if it:
(a) Identifies the protected individual and the respondent;
(b) Is in effect at the time enforcement is being sought;
(c) Was issued by a tribunal that had jurisdiction over the parties and matter under the law of the issuing state; and
(d) Was issued after the respondent was provided with reasonable notice and had an opportunity to be heard before the tribunal issued the order or, in the case of an order ex parte, the respondent was given notice and afforded an opportunity to be heard within a reasonable time after the issuing of the order, consistent with the rights of the respondent to due process.
(5) A person authorized under the law of this state to seek enforcement of a foreign protection order establishes a prima facie case for its validity by presenting an order valid on its face.
(6) Absence of any of the criteria for validity of a foreign protection order is an affirmative defense in an action seeking enforcement of the order.
(7) A tribunal of this state may enforce the provisions of a mutual foreign protection order which favor a respondent only if:
(a) The respondent filed a written pleading seeking a protection order from the tribunal of the issuing state; and
(b) The tribunal of the issuing state made specific findings in favor of the respondent.
SECTION 4. Nonjudicial enforcement of order.
(1) A law enforcement officer of this state, upon determining that there is probable cause to believe that a valid foreign protection order exists and that the order has been violated, shall enforce the order as if it were the order of a tribunal of this state. Presentation of a protection order that identifies both the protected individual and the respondent, and on its face is in effect at the time enforcement is being sought, constitutes probable cause to believe that a valid foreign protection order exists. For the purposes of this section, the protection order may be inscribed on a tangible medium or may have been stored in an electronic or other medium if it is retrievable in perceivable form. Presentation of a certified copy of a protection order is not required for enforcement.
(2) If the protection order is not presented, the officer may consider other information in determining whether there is probable cause to believe that a valid foreign protection order exists.
(3) If a law enforcement officer of this state determines that an otherwise valid foreign protection order cannot be enforced because the respondent has not been notified or served with the order, the officer shall inform the respondent of the order and make a reasonable effort to serve the order upon the respondent. After informing the respondent and serving the order, the officer shall allow the respondent a reasonable opportunity to comply with the order before enforcing the order.
(4) Registration or filing of an order in this state is not required for the enforcement of a valid foreign protection order under the provisions of this act.
SECTION 5. Registration of order.
(1) Any individual may register a foreign protection order in this state. To register a foreign protection order, an individual shall:
(a) Present a certified copy of the order to the chancery clerk's office of any county in this state; or
(b) Present a certified copy of the order to the Department of Human Services and request that the order be registered.
(2) Upon receipt of a protection order, the chancery clerk shall register the order in accordance with this section. After the order is registered, the chancery clerk shall furnish to the individual registering the order a certified copy of the registered order.
(3) The Department of Human Services shall be responsible for the registration of foreign protection orders, and it 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 which is inaccurate or is not in effect at the time of registration shall be corrected or removed from the registry in accordance with the law of this state.
(4) An individual registering a foreign protection order shall file an affidavit by the protected individual that, to the best of the individual's knowledge, the order is in effect at the time of the registration.
(5) A foreign protection order registered under this act may be entered in any existing state or federal registries of protection orders, in accordance with state or federal law.
SECTION 6. Immunity. This state or a local governmental agency, or a law enforcement officer, prosecuting attorney, clerk of court, or any state or local governmental official acting in an official capacity, is immune from civil and criminal liability for an act or omission arising out of the registration or enforcement of a foreign protection order or the detention or arrest of an alleged violator of a foreign protection order if the act or omission is done in good faith in an effort to comply with this act.
SECTION 7. Transitional provision. This chapter applies to any protection order issued before the effective date of this act, including any continuing action for enforcement of a foreign protection order commenced before the effective date of this act. A request for enforcement of a foreign protection order brought on or after the effective date of this act for violations of a foreign protection order occurring before the effective date of this act is governed by the provisions of this act.
SECTION 8. Other remedies. Pursuit of remedies under this chapter does not preclude a protected individual from pursuing other legal or equitable remedies against the respondent.
SECTION 9. Severability clause. If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
SECTION 10. Section 93-21-13, Mississippi Code of 1972, is amended as follows:
93-21-13. (1) A petition may be filed before the justice court judge, municipal court judge or county court judge, in an ex parte proceeding upon good cause shown, if the justice court judge, municipal court judge or county court judge deems it necessary to protect from abuse the petitioner, any minor children, or any person alleged to be incompetent. Immediate and present danger of abuse to the petitioner, any minor children, or any person alleged to be incompetent, shall constitute good cause for the purposes of this section.
(2) The justice court, municipal court and the county court shall be empowered to grant any protective order or approve any consent agreement to bring about a cessation of abuse of the petitioner, any minor children, or any person alleged to be incompetent, which relief may include:
(a) Directing the defendant to refrain from abusing the petitioner, any minor children, or any person alleged to be incompetent;
(b) Granting possession to the petitioner of the residence or household to the exclusion of the defendant by evicting the defendant and/or restoring possession to the petitioner;
(c) When the defendant has a duty to support the petitioner, any minor children, or any person alleged to be incompetent living in the residence or household and the defendant is the sole owner or lessee, granting possession to the petitioner of the residence or household to the exclusion of the defendant by evicting the defendant and/or restoring possession to the petitioner, or by consent agreement allowing the defendant to provide suitable, alternate housing; and
(d) Prohibiting the transferring, encumbering or otherwise disposing of property mutually owned or leased by the parties, except when in the ordinary course of business.
(3) Any order issued under subsection (2) of this section is temporary and shall not exceed ten (10) days and shall expire as of the date of the hearing in chancery court, at which time, the petitioner may seek a temporary order from the chancery court.
(4) The court may amend its order or agreement at any time upon subsequent petition by either party.
(5) A protection order * * * issued by a tribunal of another state to protect the applicant from abuse as defined in Section 93-21-3 shall be accorded full faith and credit by the courts of this state and enforced in this state as provided for in the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.
(6) Every order granting a protective order pursuant to this section shall set forth the reasons for its issuance, shall contain specific findings of fact regarding the existence of abuse, shall be specific in its terms and shall describe in reasonable detail the act or acts to be restrained.
SECTION 11. Section 93-21-16, Mississippi Code of 1972, is amended as follows:
93-21-16. (1) * * * A protective order from another jurisdiction issued to protect the applicant from domestic violence as defined in Section 97-3-7, or a protection order as defined in Section 2 of this act, issued by a tribunal of another state shall be accorded full faith and credit by the courts of this state and enforced in this state as provided for in the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.
(2) A protective order from another jurisdiction, or a protection order as defined in Section 2 of this act and issued by a tribunal of another state, is presumed to be valid if it meets the requirements of Section 3(d) of this act.
(3) It is an affirmative defense in any action seeking enforcement of a protective order issued in another jurisdiction, or a protection order as defined in Section 2 of this act and issued by a tribunal of another state, that any criteria for the validity of the order is absent.
SECTION 12. The provisions of Sections 1 through 9 of this act shall be codified as a separate chapter in Title 93, Mississippi Code of 1972.
SECTION 13. The provisions of this act shall take effect and be in force from and after July 1, 2004.