When a Tennessee officer is handed an out-of-state protective order requiring child custody transfer or firearm removal, does the officer have to take it to a local judge first?

Plain-English summary

The AG took three procedural questions about how Tennessee law enforcement should handle protective orders crossing jurisdictional lines or issued ex parte. The answers track the federal Violence Against Women Act (VAWA, 18 U.S.C. § 2265), Tennessee's full-faith-and-credit statute for protective orders (§ 36-3-622), and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA, §§ 36-6-201 to -243).

On out-of-state orders that include child custody provisions: an officer receiving such an order has no statutory duty to take it to a Tennessee court for registration. The custody portion may be registered under § 36-6-229(a), but registration is not a precondition to anything the officer must do on the scene of service. Affirmative enforcement of an out-of-state custody decree (actually removing the child) is accomplished through a Tennessee court order or warrant under § 36-6-234, which can include a request for the assistance of law-enforcement officials and, in urgent cases, a § 36-6-235 warrant to take physical custody when the child is immediately likely to suffer serious physical harm or be removed from the state.

On out-of-state orders directing firearm or weapon removal: no local ratification required. Tennessee gives full faith and credit to valid out-of-state protective orders under § 36-3-622(a), implementing VAWA. The officer can rely on a copy of the order from any source, and on the protected person's statement that the order remains in effect. The order is presumed valid if it appears authentic on its face. The only validity preconditions are notice and opportunity to be heard (or, for ex parte orders, notice and opportunity as soon as possible after issuance), and the absence of those is an affirmative defense to enforcement.

On ex parte Tennessee orders covering minor children: once the respondent has been served with the order or has actual knowledge of it, a violation triggers a mandatory warrantless arrest under § 36-3-611(a), (b). That includes the situation where the order forbids direct or indirect communication with a child and the respondent communicates with the child despite knowing of the order. The officer's duty does not wait on the underlying hearing. The arrested respondent must be brought before a magistrate or the court on a contempt charge under § 36-3-612(a). The opinion expressly aligns with Tenn. Att'y Gen. Op. 06-094 (May 22, 2006).

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Does the order have to be in Tennessee's central registry before an officer enforces it?
A: Under the framework of this opinion, no. Section 36-3-622(g) lets the officer rely on a copy of the order from "any source" and on the protected person's statement that the order remains in effect. Registration is helpful but not required.

Q: What if the out-of-state order grants relief broader than Tennessee orders typically grant?
A: VAWA's full-faith-and-credit clause requires the forum state to enforce a valid out-of-state order "even if it contains terms or includes parties that would be beyond the scope of an order in the forum state." The opinion quotes Emily Sack's law-review framing of that point.

Q: What protects a respondent who hasn't received notice?
A: The validity preconditions under § 36-3-622(b)(2). The out-of-state order is only entitled to full faith and credit if the respondent had reasonable notice and an opportunity to be heard before the order was issued, or, for ex parte orders, as soon as possible after issuance consistent with due process. Failure to provide that notice is an affirmative defense.

Q: When does the arrest duty kick in on an ex parte Tennessee order?
A: Once the respondent has been served with the order or has actual knowledge of it, and the officer has reasonable cause to believe the respondent has violated or is in violation of the order. Before service or actual knowledge, the ex parte order cannot be enforced by arrest (§ 36-3-611(b)).

Q: Can the officer in the field decide who gets custody of the child based on an out-of-state order?
A: Under this opinion, custody transfer should go through a Tennessee court order. The opinion describes the normal remedy as a verified petition for enforcement, with the petitioner authorized by court order to take immediate physical custody under § 36-6-234(a), and a § 36-6-235 warrant available when there is an immediate harm or flight risk.

Background and statutory framework

The federal VAWA full-faith-and-credit clause at 18 U.S.C. § 2265 set the floor in 1994 and has been refined by subsequent reauthorizations. Tennessee's statutory implementation arrived in 1997 with § 36-3-622. The opinion's structure (separate analysis for the custody piece, the firearms/weapons piece, and the ex parte arrest piece) reflects the underlying fact that protective orders frequently bundle several different kinds of relief, and the procedural posture for enforcing each piece is not identical.

The UCCJEA is the dominant interstate-custody statute, governing both registration (§ 36-6-229) and enforcement (§§ 36-6-232 through -235) of out-of-state custody decrees. Its enforcement procedure is modeled on habeas corpus: a verified petition, a summary expedited hearing, and an order that the petitioner may take immediate physical custody unless the respondent succeeds on a narrow set of validity defenses.

Citations and references

Statutes:

• Tenn. Code Ann. §§ 36-6-201 to -243 (UCCJEA)
• Tenn. Code Ann. § 36-6-205(3), (4) (child-custody determination and proceeding definitions)
• Tenn. Code Ann. § 36-6-229(a), (a)(3), (c)(1) (registration)
• Tenn. Code Ann. § 36-6-232(a), (b), (d) (enforcement petition; registration not required)
• Tenn. Code Ann. § 36-6-234(a), (b) (enforcement order; law-enforcement assistance)
• Tenn. Code Ann. § 36-6-235 (warrant to take physical custody)
• Tenn. Code Ann. § 36-3-611(a), (b) (warrantless arrest; ex parte rule)
• Tenn. Code Ann. § 36-3-612(a) (post-arrest procedure)
• Tenn. Code Ann. § 36-3-622(a), (b)(1)-(3), (c), (g) (full faith and credit; validity; reliance on order from any source)
• 18 U.S.C. § 2265 (federal VAWA full faith and credit)

Earlier AG opinion relied on:

• Tenn. Att'y Gen. Op. 06-094 (May 22, 2006) (warrantless arrest on served ex parte order)

Secondary source:

• Emily J. Sack, Domestic Violence Across State Lines: The Full Faith and Credit Clause, Congressional Power, and Interstate Enforcement of Protection Orders, 98 Nw. U. L. Rev. 827 (2004)

Subject

Opinion No. 14-101, Enforcement of Out-of-State and Ex Parte Orders of Protection, November 26, 2014

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-101.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
November 26, 2014
Opinion No. 14-101
Enforcement of Out-of-State and Ex Parte Orders of Protection

QUESTIONS

1. When an out-of-state order of protection is received for service and the order directs a law-enforcement officer to take custody of a minor child or children, does the officer have any obligation or responsibility to take the out-of-state order to the local court and request that the order be ratified regarding custody of the minor child or children?

2. When an out-of-state order of protection directs a law-enforcement officer to remove firearms and/or weapons, does the officer have any responsibility to take the out-of-state order to local court and request that it be ratified before removing and taking possession of the firearms or weapons?

3. When serving a Tennessee ex parte order of protection that includes a minor child or children as a protected party or parties, should the respondent be charged with a violation for contempt if the respondent violates the order by having direct or indirect communication with the child or children before having an opportunity for a hearing?

OPINIONS

1. Under the Uniform Child Custody Jurisdiction and Enforcement Act, Tenn. Code Ann. §§ 36-6-201 to -243, an out-of-state order of protection that provides for custody of a minor child may be registered in a Tennessee court, but law-enforcement officials receiving such an order for service have no obligation to submit the order for registration. Enforcement of an out-of-state custody order, however, is accomplished by an enforcement order or warrant issued by a Tennessee court.

2. No. Tennessee law-enforcement officers must give full faith and credit to all provisions of an out-of-state order, and there is no requirement that the out-of-state order be ratified by the local court before officers comply with it.

3. If a respondent has been served with a copy of an ex parte order of protection or has actual knowledge of it, a law-enforcement officer shall arrest the respondent without a warrant if the officer has reasonable cause to believe that the respondent has violated or is in violation of the order since receiving service or acquiring actual knowledge of it.

ANALYSIS

1. Tennessee's Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), Tenn. Code Ann. §§ 36-6-201 to -243, makes provision for the recognition and enforcement of an out-of-state order providing for the custody of a minor child. Under Tenn. Code Ann. § 36-6-229(a), a "child-custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement." A "child custody determination" under the UCCJEA means a "judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child," including a temporary or initial order, Tenn. Code Ann. § 36-6-205(3). So the UCCJEA would apply to a custody determination made as part of an order of protection. See also id. § 36-6-205(4) (defining "child custody proceeding" to include a proceeding for protection from domestic violence). A registered child-custody determination is "enforceable as of the date of the registration in the same manner as a determination issued by a court of this state." Id. § 36-6-229(c)(1). But registration of an out-of-state child-custody determination is not required, see id. § 36-6-232(b), (d), and there is no requirement in the UCCJEA that law-enforcement officials initiate the registration of such an order when they have received it for service. See id. § 36-6-229(a)(3) (providing that the order may be registered by sending a request for registration to the appropriate court along with "the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody . . . in the child-custody determination sought to be registered").

Under Tenn. Code Ann. § 36-6-232(a), a proceeding for enforcement of a child-custody determination is commenced by filing a verified petition. "This section provides the normal remedy that will be used in interstate cases: the production of the child in a summary, remedial process based on habeas corpus." Id. § 36-6-232, Comments to Official Text. Upon a finding that a petitioner is entitled to immediate physical custody of the child, the court shall order that the petitioner may take immediate physical custody of the child unless the respondent succeeds in challenging the validity of the child-custody determination. Id. § 36-6-234(a). The court may also grant additional relief, including a request for the assistance of law-enforcement officials. Id. § 36-6-234(b); see also id. § 36-6-235 (making provision, at the enforcement-petition stage, for the issuance of a warrant to take physical custody of the child "if the child is immediately likely to suffer serious physical harm or be removed from this state").

2. Tenn. Code Ann. § 36-3-622(a) provides that "[a]ny valid protection order related to abuse, domestic abuse, or domestic or family violence, issued by a court of another state, tribe or territory shall be afforded full faith and credit by the courts of this state and enforced as if it were issued in this state." This provision was enacted by the General Assembly in 1997, following the enactment of the federal Violence Against Women Act (VAWA), which requires that each jurisdiction give full faith and credit to abuse-protection orders entered by courts of other jurisdictions. See 18 U.S.C. § 2265.

Under the VAWA full faith and credit provision, a state must recognize a valid protection order issued by another state and enforce it just as if it were issued in-state. If the order is valid under the terms of the issuing state, the forum state must enforce it, even if it contains terms or includes parties that would be beyond the scope of an order in the forum state.

Emily J. Sack, Domestic Violence Across State Lines: The Full Faith and Credit Clause, Congressional Power, and Interstate Enforcement of Protection Orders, 98 Nw. U. L. Rev. 827, 829 (2004).

Although a petitioner may present a foreign order of protection to a local court for filing, filing is not required for the order to be recognized in Tennessee. See Tenn. Code Ann. § 36-3-622(c), (g). There is no requirement that the order be ratified by a local court to be effective. "Regardless of whether a foreign order of protection has been filed in this state," a law-enforcement officer may rely upon a copy of the protection order provided "by any source" and may also rely on the statement of the person protected by the order that the order remains in effect. Id. § 36-3-622(g). Thus, an officer presented with a valid out-of-state order of protection directing the removal of firearms and/or weapons from the respondent's possession must give full faith and credit to that order and comply with its provision, even if the order has not been filed with or ratified by a Tennessee court.

3. A law-enforcement officer with proper jurisdiction who has verified that an order of protection is in effect and who has reasonable cause to believe that the respondent has violated or is in violation of the order is required to arrest the respondent without a warrant. Tenn. Code Ann. § 36-3-611(a). An ex parte order, however, cannot be enforced by arrest until the respondent has been served with or has actual knowledge of the order. Tenn. Code Ann. § 36-3-611(b). See also Tenn. Att'y Gen. Op. 06-094, at 3 (May 22, 2006) ("If the individual has violated an ex parte order of protection, a warrantless arrest is still required so long as the defendant has been served with the order of protection or has actual knowledge of it."). Therefore, if a respondent has been served with or has actual knowledge of an ex parte order of protection that prohibits the respondent from communicating directly or indirectly with a minor child or children, and a law-enforcement officer has reasonable cause to believe that the respondent has violated or is in violation of the order since receiving service or acquiring actual knowledge of it, the officer is required to arrest the respondent. The officer's obligation to arrest is not affected by the fact that a hearing on the order of protection has not yet been held. Upon arrest, the person shall be taken before a magistrate or the court to answer to a charge of contempt. Tenn. Code Ann. § 36-3-612(a).

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

RACHEL E. WILLIS
Senior Counsel

RYAN MCGEHEE
Assistant Attorney General

Requested by:
The Honorable Joe Pitts
State Representative
32 Legislative Plaza
Nashville, Tennessee 37243