We are Never Ever Getting Back Together: Domestic Violence Victims, Defendants and Due Process
Seton Hall University School of Law
October 2, 2013
Cardozo Law Review, Vol. 35, No. 141, 2013
Seton Hall Public Law Research Paper No. 2014-2
In our mobile society, victims of domestic violence are fleeing from abuse across state lines with increasing frequency. When a victim then seeks a civil protection order (CPO) in her state of refuge, courts must consider difficult questions relating to personal jurisdiction over the nonresident defendant. In some cases, interstate communications (e.g. a harassing text message or threatening You-Tube video) enable the state of refuge to assume personal jurisdiction over the out-of-state defendant pursuant to the state’s long-arm statute. However, in many instances, communications across state lines will not resolve the challenging jurisdictional questions raised by interstate flight domestic violence cases.
Courts with no personal jurisdiction over a nonresident defendant in a CPO case should consider an alternative ground for jurisdiction, specifically the status exception to personal jurisdiction utilized in other family law contexts including divorce and child welfare cases. Although not well known outside of the area of family law, the status exception is a well established mechanism, recognized by the U.S. Supreme Court, which allows states to offer limited relief to citizens in family law in matters involving out-of-state defendants. State courts have begun to grapple with the potential use of the status exception in CPO cases which requires states must balance the victim’s constitutional right to bodily integrity and the state’s own interest in protecting domestic violence victims against the constitutional due process rights of nonresident defendants. However, only seven states have reported decisions on point and their opinions offer a variety of approaches with some states utilizing the status exception, but in different ways, and other states rejecting the application of the status exception to CPO cases. Only one other scholar has addressed this topic in a student note which rejected the use of the status exception in CPO cases in a particular state.
This Article proposes an intermediate solution which requires neither ignoring nor absolutely prioritizing the interests of nonresident defendants while still offering some protection to victims. Specifically, it recommends that courts employ a status determination to enter a temporary, renewable civil protection order providing limited relief consistent with that available in other status exception cases. By respecting the rights of both victims and defendants, this solution offers the best opportunity to achieve greater clarity in the law and promote some protection for victims without trampling the rights of defendants.
Number of Pages in PDF File: 63
Keywords: Domestic Violence, Protection Orders, Personal Jurisdiction
JEL Classification: K00, K30, K42
Date posted: January 10, 2014