By Frederick G. Zundel
Over the past several years state legislatures have addressed the scourge of domestic violence by passing civil protection order statutes and adding domestic violence as a factor in their custody provisions. Idaho has joined this movement. However, the survivor of domestic may face jurisdictional challenges to securing his or her safety from an abuser. This article will summarize those challenges and possible solutions to obtaining personal jurisdiction over the abuser and subject matter jurisdiction to decide custody of the survivor’s and abuser’s children.
Most domestic violence protection order cases in Idaho will involve parties who reside in the State of Idaho, where personal jurisdiction issues will not arise. However, the practitioner may be asked to represent a petitioner in a domestic violence proceeding where the alleged survivor has relocated to the State of Idaho and the respondent resides in another state. When the victim chooses to file for a civil protection order in Idaho, the issue arises as to whether the State has personal jurisdiction over the respondent to issue a protection order against the respondent.
This issue should be distinguished from the issue as to whether the state can issue a custody order concerning the parties’ children, where the requirements for custody pursuant to the Uniform Child Custody and Jurisdiction Prevention Act (“UCCJEA”) in Idaho and the federal Parental Kidnapping Prevention Act (“PKPA”) have been satisfied but there is no personal jurisdiction over the respondent. This latter issue will be discussed in the following.
The Domestic Violence Crime Prevention Act at Idaho Code §39-6301 et.seq. does not address personal jurisdiction over the respondent. It simply provides that with regard to civil protection orders issued in the State, personal service of the order is required, unless the order itself indicates that the respondent has already received a copy or the respondent has waived service in a prior court appearance.[i]
For a foreign civil protection order to be enforced in Idaho, it must be “valid,” which means that (1) the order identified the protected person and the respondent; (2) the order is currently in effect; (3) the order “[w]as issued by a tribunal that had jurisdiction over the parties and subject matter under the law of the issuing state”; and (4) the respondent had been given reasonable notice of the foreign protection order proceeding and had an opportunity to be heard, in a manner “consistent with the rights of the respondent to due process.”[ii] This language requires the State of Idaho to enforce civil protection orders issued by other states so long as the issuing court had personal jurisdiction over the respondent-abuser.
The Idaho Supreme court has held that “[t]he proper exercise of personal jurisdiction of non-resident defendants by an Idaho court involves satisfying two criteria. (cases omitted). First, the court must determine that the non-resident defendant’s actions fall within the scope of Idaho’s long-arm statute. (case omitted). Second, the court must determine that exercising jurisdiction over the non-resident defendant comports with the constitutional standards of the Due Process Clause of the U.S. Constitution.”[iii]
As to the first criterion, Idaho’s long-arm statute is found at Idaho Code § 5-514. Acts subjecting a non-resident to the jurisdiction of an Idaho Court include (a) the transaction of any business within the state; (b) the commission of a tortious act within the state; (c) the ownership, use or possession of any real property within the state; (d) contracting to ensure any person, property or risk located within the state at the time of contracting; (e) the maintenance within the state of a matrimonial domicile at the time of the commission of any act giving rise to a cause of action for divorce or separate maintenance; and (f) the engaging in an act of sexual intercourse within the state, giving rise to the cause of action for paternity under Chapter 11, Title 7, of the Idaho Code.
As for the second criterion, “[t]he Fourteenth Amendment to the U.S. Constitution permits a state to exercise personal jurisdiction over a non-resident defendant when a defendant has met certain minimum contacts with the state such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ (case omitted). In determining the existence of minimum contacts, a court must focus on the relationship among the defendant, the forum, and the litigation (case omitted). Once a court finds the requisite minimum contact, it must then proceed to determine whether its assertion of personal jurisdiction comports with traditional notions of fair play and substantial justice.”[iv]
The most likely act subjecting an alleged perpetrator of domestic violence to personal jurisdiction would be the commission of a tortious act. Tortious causes of action for domestic violence may include: assault, battery, defamation, false imprisonment, intentional or reckless infliction of emotional distress, negligent infliction of emotional distress, intentional interference with custody or visitation, third-party negligence, tortious infliction of a sexually transmitted disease, wrongful death, defamation, libel and slander, marital rape, stalking, fraud, destruction of property, implied cause of action for violation of a criminal statute, and interference with parental rights of custody.[v] In attempting to satisfy the tortious cause of action in the long-arm statute, a petitioner could show that the act causing injury either happened in Idaho or happened in another state but injured the petitioner in Idaho.
An Idaho court may thus get personal jurisdiction over a non-resident respondent if the petitioner can show that the respondent’s actions outside of Idaho caused the petitioner to suffer emotional distress in Idaho. Some examples of acts that may cause such injuries might include threatening phone calls, letters, electronic messages via the internet or cell phones, or third party contact (e.g. messages sent through friends) from the respondent to the petitioner while residing in Idaho.
Some have argued that another emotional injury that may be sufficient for the long-arm statute to apply is the fear resulting from a batterer. Although the fear of domestic violence is often ongoing after the battered woman has left the state where the respondent resides, the petitioner may present the fear as a separate injury that occurred while the battered petitioner resided in Idaho, although the event causing the fear occurred outside of Idaho.
There are no Idaho cases that address tortious activity by a non-resident tortfeasor in a domestic violence setting. However, the Idaho Supreme Court has held that a non-resident wholesaler’s alleged fraudulent statements made during telephonic and electronic communications regarding the quality, value, and packaging of jeans sold to an Idaho resident was sufficient to satisfy the tort language of Idaho’s long-arm statute.[vi] Since the alleged fraudulent representations were directed at an Idaho resident and the injury occurred in Idaho, Idaho had personal jurisdiction over the non-resident wholesaler. This reasoning could apply to at least the torts directed against a domestic violence survivor just summarized.
The petitioner would also need to show that the non-resident respondent has sufficient minimum contacts with the petitioner’s new state. “The commission of a tort within the state is considered sufficient contact ‘to invoke the tortious act language of I.C. Section 5-514(b).’ (case omitted). This section is designed to provide a forum for Idaho residents, is remedial legislation of the most fundamental nature and should be liberally construed.”[vii]
Other states that have addressed the issue of whether personal jurisdiction is required before issuing a domestic violence civil protection order against a non-resident abuser have for the most part tried to fashion a remedy for the victim that allows for the issuance of a protection order in the refuge state.[viii]
Apart from personal jurisdictional issues, if the petitioner and respondent have any minor children, and the petitioner wants primary or sole physical custody of the children, then the petitioner must satisfy a separate set of criteria in order for an Idaho Court to have subject matter jurisdiction to issue a custody order regarding the children.
Idaho Code § 39-6306(1)(a) provides that “[t]emporary custody of the minor children of the petitioner or the parties [may] be awarded to the petitioner or respondent if exercise of such jurisdiction is consistent with the provisions of Section 32-11-204, Idaho Code, and consistent with prior custody orders entered by a court of competent jurisdiction unless grounds exist pursuant to Section 32-717, Idaho Code.” Idaho Code § 32-11-204 is the temporary emergency jurisdiction provision under the UCCJEA.
Idaho Code § 32-717 contains the factors for evaluating the custody arrangement that is in a child’s best interests. Interestingly, this language in Section 39-6306(1) is provided for the guidance of the court at the hearing on the merits in a civil protection order proceeding but is not found in Idaho Code § 39-6308, which allows the court to issue an ex parte temporary protection order on the basis of petitioner’s sworn affidavit. The legislature apparently intended that all child custody jurisdictional issues would be reserved for the hearing on the merits.
As a preliminary matter, it should be noted that although Idaho Code §39-6306 refers only to Idaho’s UCCJEA temporary emergency jurisdiction provision, the protection order judge must also consider whether the court has jurisdiction pursuant to Idaho Code § 32-11-201 in assessing initial child custody jurisdiction where there is no prior custody order.
This section evaluates the four bases under which a court may exercise jurisdiction over a child custody case: home state, significant connection, more appropriate form, and last resort or default. And this for the reason that a “child custody proceeding” pursuant to Idaho’s UCCJEA, in which legal custody, physical custody, or visitation with respect to a child is in issue, includes “protection from domestic violence.”[ix]
It should be noted that pursuant to Idaho’s UCCJEA, “. . . personal jurisdiction over a party or a child is not necessary or sufficient to make a child custody determination.”[x] Therefore, if an Idaho court does not have personal jurisdiction over the respondent to issue a protection order against the respondent, which would normally include a child custody provision if the parties have children, then the petitioner could seek a custody order through a different type of proceeding, such as filing for custody or divorce under the domestic relations laws of Idaho.
The petition initiating such a proceeding could also provide for the kind of injunctive relief found in a civil protection order proceeding but without the criminal remedies available for violation of a domestic violence protection order. The only remedy available in that case would be a motion for contempt.
Idaho Code § 32-11-201 establishes four bases under which a court may exercise jurisdiction over a child custody case: home state, significant connection, more appropriate forum, and last resort or default. In addition to these bases, Idaho Code § 32-11-204 permits a court to exercise temporary emergency jurisdiction under certain circumstances. The UCCJEA’s jurisdictional bases are set forth as a hierarchy, with home-state jurisdiction given the highest priority.
Therefore, if there is a state with home-state jurisdiction, only this state may decide the custody case, unless the state declines to exercise jurisdiction, as explained below. If there is no state with home-state jurisdiction or if the home state declines to exercise its jurisdiction, a state having significant-connection jurisdiction may decide a custody case. If all states having home-state jurisdiction or significant-connection jurisdiction decline to exercise jurisdiction in favor of another state, then that state may exercise more appropriate forum jurisdiction. Finally, last resort or default jurisdiction is available when no state satisfies the jurisdictional criteria described above.[xi]
The UCCJEA’s inconvenient forum provision allows a court in the state with home-state or significant-connection jurisdiction to decline to exercise jurisdiction if it determines that it is an inconvenient forum and there is a more appropriate forum.[xii] This provision can be of great use where a victim of domestic violence has fled from the home state or the significant-connection state to escape abuse. The UCCJEA explicitly directs courts to consider domestic violence in determining whether to decline jurisdiction. The first among eight statutory factors that the court must consider is “whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.”[xiii] In making an inconvenient forum analysis, the court is required to consider all relevant factors, including the eight explicit factors set forth in the statute.
The lead case in making an inconvenient form analysis in a domestic violence setting is Stoneman v. Drollinger.[xiv] In this case, the parties and their four minor children had lived in Montana for several years, and there was no question that Montana was the home state. There had been extensive litigation in Montana between the parties, resulting in a case file that was then in its 13th volume.[xv] However, there was persuasive evidence that the father had repeatedly battered the mother during the marriage and that the mother had obtained several court-issued orders of protection during their multiple separations.
The father had pled guilty to partner and family member assault in 1990, 1991, 1994, 1996, and had violated the mother’s protection orders on numerous occasions.[xvi] The mother finally relocated from Montana to Washington with the four children, and the Washington trial court issued a permanent protection order. The mother then filed a motion in Montana requesting that the Montana court decline jurisdiction under the UCCJEA in the party’s pending custody case in Montana.
The trial court denied the motion, and the Montana Supreme Court reversed and ordered the trial court to communicate with the Washington court and to decline jurisdiction based on inconvenient forum.[xvii] The Montana Supreme Court urged the trial court “to give priority to the safety of victims of domestic violence when considering jurisdictional issues under the UCCJEA.”[xviii]
The expanded temporary emergency jurisdiction under the UCCJEA at Idaho Code § 32-11-204 is another valuable tool for attorneys representing domestic violence victims who flee to Idaho. A court may exercise temporary emergency jurisdiction when “it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected or threatened with mistreatment or abuse.”[xix] Pursuant to the same section, to exercise emergency jurisdiction, the court must determine that there is an emergency and that the child is present in the state.
Where another state has child custody jurisdiction under Idaho Code § 32-11-201 (4 jurisdictional bases), 32-11-202 (has exclusive continuing jurisdiction), or 32-11-203 (Idaho has no authority to modify the other state’s custody order), and that state has not declined to exercise its jurisdiction, then jurisdiction under the UCCJEA may be exercised but is temporary only for a set period of time. The Idaho court exercising emergency jurisdiction is required to communicate with the foreign court with proper jurisdiction to resolve the emergency, protect the parties and the child, and determine the duration of the emergency order.[xx]
It would, therefore, be incorrect for anyone to advise a survivor of domestic violence that they may not file for custody in a refuge state until they have been there for six months. The emergency jurisdiction provision is designed for exactly this kind of situation, in which a parent or child is in danger and the parent and child have escaped to a safer jurisdiction.
The UCCJEA also has provisions permitting interstate discovery in cases where traveling to another jurisdiction to try a party’s case would be unsafe or too difficult for the party. The party may offer the testimony of witnesses located in another state, or a court may order testimony to be taken elsewhere.[xxi] Out-of-state depositions, as well as testimony by telephone, audio/visual means, or other electronic means before a designated court or other location in the foreign state, may be conducted to keep domestic violence survivors safe.[xxii] [xxiii]
[i] Idaho Code § 39-6308(5) and 6310 (1).
[ii] Idaho Code § 39-6306 A (3) (d) (emphasis added). Idaho Code § 39-6306 (A) is Idaho’s adoption of the Uniform Enforcement of Domestic Violence Protection Orders Act. See Uniform Laws Annotated, Master Edition, Vol. 9, Pt. IB.
[iii] Blimka v. My Web Wholesaler, 143 Idaho 723, 726, 152 P.3d 594 (2007).
[iv] Id. at 727.
[v] See TP: Solo Law Trends and News-Family Law Vol. 1, No. 4 (August 2005) (www.americanbar.org/newsletter/publications/law_trends_news_practice_area_e_n…); “The Rule of Thumb’: Plaintiffs’ Domestic Violence Tort Actions”, www.plaintiffmagazine.com(November 2009, January 2010, April 2010), and “Domestic Violence Torts”. Jennifer Wriggins, Southern California Law Review, Vol. 75:121 (2001).
[vi] Blimka v. My Web Wholesaler, 143 Idaho 723, 152 P.3d 594 (2007).
[vii] McAnally v Bonjac Inc., 137 Idaho 488, 491, 50 P.3d 983 (2002). For a fuller discussion of a minimum contacts analysis, see St. Alphonsus Regional Medical Center v. State of Washington, 123 Idaho 739, 743-744, 852 P.2d 491 (1993).
[viii] Bartsh v. Bartsch, 636 N.W. 2d 3, 6 (Iowa 2001) (personal jurisdiction not required for a protected status); Shah v. Shah, 875 A.2d 931 (N.J. 2005) (if no personal jurisdiction, protection order can only provide prohibitory relief), which is followed by Spencer v. Spencer, 191 S.W. 3d 14, 19 (Ky. Ct. App 2006) and Caplan v Caplan, 879 N.E. 2d 117,123 (Mass. 2008). For an excellent review of the cases on the issue of whether a court needs personal jurisdiction over a non-resident defendant to issue a civil protection, see “Comment: ‘Til Death Do Us Part: Why Personal Jurisdiction Is Required to Issue Victim Protection Orders Against Nonresident Abusers.” Bevan J, Graybill, 63 Okla. L. Rev. 821 (2001).
[ix] Idaho Code § 32-11-102(d).
[x] Idaho Code § 32-11-201(c) (emphasis added).
[xi] Idaho Code § 32-11-201.
[xii] Idaho Code § 32-11-207.
[xiii] Idaho Code § 32-11-207 (b).
[xiv] 314 Montana 139, 64 P.3d 997 (2003).
[xv] Id. at 153.
[xvi] Id. at 143.
[xvii] Id. at 151.
[xviii] Id. at 148-149.
[xix] Idaho Code § 32-11-204 (a) (emphasis added).
[xx] Idaho Code § 32-11-204 (d).
[xxi] Idaho Code § 32-11-1111.
[xxii] Id. at (b).
[xxiii] The author has drawn heavily upon the more detailed treatment found in “Look Both Ways Before You Cross State Lines: Using the Uniform Child Custody Jurisdiction and Enforcement Act to Assist Domestic-Violence Survivors,” 43 Clearinghouse Review 346 (November/December 2009). See also “Shelter from the Storm: Using Jurisdictional Statutes to Protect Victims of Domestic Violence after the Violence Against Women Act of 2000”, 13 Colum. J. Gender & L. 101 (2004), and “Protecting Victims of Domestic Violence under the UCCJEA,” Deborah Golman and Darren Mitchell, Juvenile and Family Court Journal 61, No. 4 (2010).
Fred G. Zundel is an attorney in the Pocatello Office of Idaho Legal Aid Services. He received his law degree from the J. Reuben Clark Law School at Brigham Young University and his B.A. from the University of California at Davis. He is currently a member of the Bannock County Sexual Assault and Domestic Violence Task Force and serves as an at-large member of the Idaho State Bar’s Family Law Section. He is licensed to practice law on the Shoshone-Bannock Reservation.