DRAFT

FOR DISCUSSION ONLY

IMPLEMENTATION OF HAGUE CONVENTION ON PROTECTION OF CHILDREN

(Revisions to Uniform Child Custody Jurisdiction and Enforcement Act)

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NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

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For September 23-24, 2011 Drafting Committee Meeting

With Prefatory Note and Comments

Changes Shown in Strike and Score

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

The ideas and conclusions herein set forth, including drafts of proposed legislation, have not been passed on by the National Conference of Commissioners on Uniform State Laws. They do not necessarily reflect the views of the Committee, Reporters or Commissioners. Proposed statutory language, if any, may not be used to ascertain legislative meaning of any promulgated final law.

August 30, 2011

DRAFTING COMMITTEE ON IMPLEMENTATION OF HAGUE CONVENTION ON PROTECTION OF CHILDREN

The Committee appointed by and representing the National Conference of Commissioners on Uniform State Laws in preparing this draft consists of the following individuals:

BATTLE R. ROBINSON, 104 W. Market St., Georgetown, DE 19947, Chair

STEVEN G. FROST, 111 W. Monroe St., Chicago, IL 60603‑4080

JESS O. HALE, General Assembly of Tennessee, Office of Legal Services, G‑18War Memorial Bldg., Nashville, TN 37243‑0059

THOMAS S. HEMMENDINGER, 362 Broadway, Providence, RI 02909‑1434

LYLE W. HILLYARD, 595 South Riverwoods Pkwy., Suite 100, Logan, UT 84321

H. K. PATCHEL, Indiana University School of Law‑Indianapolis, 5715 E. 56th St., Indianapolis, IN 46226

KAREN E. POWELL, P.O. Box 200138, MT 59620

SUZANNE REYNOLDS, Wake Forest University School of Law, Campus Box 7206, 1834 Wake Forest Rd., Winston‑Salem, NC 27109

HARRY L. TINDALL, 1300 Post Oak Blvd., Suite 1550, Houston, TX 77056‑3081

ROBERT G. SPECTOR, University of Oklahoma College of Law, 300 Timberdell Rd., Norman, OK 73019, Reporter

EX OFFICIO

MICHAEL HOUGHTON, P.O. Box 1347, 1201 N. Market St., 18th Floor, Wilmington, DE 19899, President

PAMELA WINSTON BERTANI, 832 Texas St., Fairfield, CA 94533, Division Chair

AMERICAN BAR ASSOCIATION ADVISOR

STEPHANIE DOMITROVICH, Erie County Courthouse, 140 W. 6th St., Room 223, Erie, PA 16501-1030, ABA Advisor

RONALD W. NELSON, 11900 W. 87th St. Pkwy, Suite 117, Lenexa, KS 66215-4517, ABA Section Advisor

DAVID B. STARKS, 425 Pike St., Suite 500, Seattle, WA 98101-7003, ABA Section Advisor

EXECUTIVE DIRECTOR

JOHN A. SEBERT, 111 N. Wabash, Suite 1010, Chicago, IL 60602, Executive Director

Copies of this Act may be obtained from:

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

111 N. Wabash Ave., Suite 1010

Chicago, IL 60602

312/450-6600

www.uniformlaws.org

IMPLEMENTATION OF HAGUE CONVENTION ON PROTECTION OF CHILDREN

(Revisions to Uniform Child Custody Jurisdiction and Enforcement Act)

TABLE OF CONTENTS

Prefatory Note.................................................................................................................................. 1

[ARTICLE] 1 GENERAL PROVISIONS

SECTION 101. SHORT TITLE...................................................................................................... 6

SECTION 102. DEFINITIONS...................................................................................................... 6

SECTION 103. PROCEEDINGS GOVERNED BY OTHER LAW................................................. 9

SECTION 104. APPLICATION TO INDIAN TRIBES................................................................... 9

SECTION 105. INTERNATIONAL APPLICATION OF [ACT] [VERSION ONE]...................... 10

SECTION 105. INTERNATIONAL APPLICATION OF [ACT] [VERSION TWO]..................... 10

SECTION 106. EFFECT OF CHILD-CUSTODY DETERMINATION......................................... 11

SECTION 107. PRIORITY.......................................................................................................... 12

SECTION 108. NOTICE TO PERSONS OUTSIDE STATE......................................................... 12

SECTION 109. APPEARANCE AND LIMITED IMMUNITY..................................................... 13

SECTION 110. COMMUNICATION BETWEEN COURTS........................................................ 13

SECTION 111. TAKING TESTIMONY IN ANOTHER STATE OR FOREIGN

COUNTRY......................................................................................................................... 14

SECTION 112. COOPERATION BETWEEN COURTS; PRESERVATION OF

RECORDS.......................................................................................................................... 15

[ARTICLE] 2 JURISDICTION

SECTION 201. INITIAL CHILD-CUSTODY JURISDICTION.................................................... 16

SECTION 202. EXCLUSIVE, CONTINUING JURISDICTION.................................................. 17

SECTION 203. JURISDICTION TO MODIFY DETERMINATION............................................ 18

SECTION 204. TEMPORARY EMERGENCY JURISDICTION [ALTERNATIVE A]................ 19

SECTION 204. TEMPORARY EMERGENCY JURISDICTION [ALTERNATIVE B]............ 20

SECTION 205. NOTICE; OPPORTUNITY TO BE HEARD; JOINDER...................................... 23

SECTION 206. SIMULTANEOUS PROCEEDINGS.................................................................... 23

SECTION 207. INCONVENIENT FORUM [ALTERNATIVE A]............................................. 25

SECTION 207. INCONVENIENT FORUM [ALTERNATIVE B]................................................ 26

SECTION 208. JURISDICTION DECLINED BY REASON OF CONDUCT............................... 29

SECTION 209. INFORMATION TO BE SUBMITTED TO COURT........................................... 30

SECTION 210. APPEARANCE OF PARTIES AND CHILD....................................................... 31

[ARTICLE] 3ENFORCEMENT

SECTION 301. DEFINITIONS.................................................................................................... 32

SECTION 302. ENFORCEMENT UNDER HAGUE CONVENTION.......................................... 32

SECTION 303. DUTY TO ENFORCE......................................................................................... 33

SECTION 304. TEMPORARY VISITATION.............................................................................. 33

SECTION 305. REGISTRATION OF CHILD-CUSTODY DETERMINATION [ALTERNATIVE A] 34

SECTION 305. REGISTRATION OF CHILD-CUSTODY DETERMINATION [ALTERNATIVE B] 36

SECTION 306. ENFORCEMENT OF REGISTERED DETERMINATION

[ALTERNATIVE A]........................................................................................................... 39

SECTION 306. ENFORCEMENT OF REGISTERED DETERMINATION

[ALTERNATIVE B]........................................................................................................... 40

SECTION 307. SIMULTANEOUS PROCEEDINGS.................................................................... 40

SECTION 308. EXPEDITED ENFORCEMENT OF CHILD-CUSTODY

DETERMINATION............................................................................................................ 41

SECTION 309. SERVICE OF PETITION AND ORDER............................................................. 43

SECTION 310. HEARING AND ORDER................................................................................... 43

SECTION 311. WARRANT TO TAKE PHYSICAL CUSTODY OF CHILD............................... 44

SECTION 312. COSTS, FEES, AND EXPENSES........................................................................ 45

SECTION 313. RECOGNITION AND ENFORCEMENT............................................................ 45

SECTION 314. APPEALS........................................................................................................... 46

SECTION 315. ROLE OF [PROSECUTOR OR PUBLIC OFFICIAL].......................................... 46

SECTION 316. ROLE OF [LAW ENFORCEMENT]................................................................... 46

SECTION 317. COSTS AND EXPENSES................................................................................... 47

[ARTICLE] 4 SPECIAL RULES FOR CASES UNDER CONVENTION

SECTION 401. APPLICABILITY................................................................................................ 48

SECTION 402. JURISDICTION.................................................................................................. 48

SECTION 403. JURISDICTION IN CASES OF [WRONGFUL] ABDUCTION........................... 49

SECTION 404. SIMULTANEOUS PROCEEDINGS.................................................................... 51

SECTION 405. TEMPORARY EMERGENCY JURISDICTION [IF ALTERNATIVE A

OF SECTION 204 IS SELECTED]...................................................................................... 52

SECTION 406. INCONVENIENT FORUM [IN THE EVENT OPTION A OF SECTION

207 IS CHOSEN]................................................................................................................ 54

SECTION 407. PROVISIONAL ORDERS................................................................................... 57

SECTION 408. CONTINUATION OF ORDERS......................................................................... 58

SECTION 409. GENERAL CHOICE OF LAW RULES............................................................... 58

SECTION 410. SPECIFIC CHOICE OF LAW RULES................................................................. 60

SECTION 411. DUTY TO RECOGNIZE..................................................................................... 62

SECTION 412. REGISTRATION OF CONVENTION ORDER. [IF ALTERNATIVE A

OF SECTION 305 IS CHOSEN]......................................................................................... 64

SECTION 412. REGISTRATION OF CONVENTION ORDER [ANOTHER

ALTERNATIVE]................................................................................................................ 67

SECTION 413. EXPEDITED ENFORCEMENT OF CONVENTION COUNTRY

ORDERS............................................................................................................................ 69

SECTION 413. EXPEDITED ENFORCEMENT OF CHILD-CUSTODY

DETERMINATION [ANOTHER ALTERNATIVE]......................................................... 71

SECTION 414. SERVICE OF PETITION AND ORDER............................................................. 73

SECTION 415. HEARING AND ORDER................................................................................... 73

SECTION 415. HEARING AND ORDER [ANOTHER ALTERNATIVE]. ............................. 75

SECTION 416. COOPERATION WITH CONVENTION COUNTRIES...................................... 76

[ARTICLE] 45MISCELLANEOUS PROVISIONS

SECTION 4501. APPLICATION AND CONSTRUCTION.......................................................... 76

SECTION 4502. SEVERABILITY CLAUSE............................................................................... 76

SECTION 4503. EFFECTIVE DATE........................................................................................... 77

SECTION 4504. REPEALS......................................................................................................... 77

SECTION 4505. TRANSITIONAL PROVISION......................................................................... 77

IMPLEMENTATION OF HAGUE CONVENTION ON PROTECTION OF CHILDREN

(Revisions to Uniform Child Custody Jurisdiction and Enforcement Act)

Prefatory Note

I. FROM THE UCCJA TO THE UCCJEA

In 1997 the Uniform Law Commission revisited the problem of the interstate child when it promulgated the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) as a replacement for the Uniform Child Custody Jurisdiction Act (UCCJA). The UCCJA was adopted as law in all 50 states, the District of Columbia, and the Virgin Islands. A number of adoptions, however, significantly departed from the original text. In addition, almost thirty years of litigation since the promulgation of the UCCJA produced substantial inconsistency in interpretation by state courts. As a result, the goals of the UCCJA were rendered unobtainable in many cases.

In 1980, the federal government enacted the Parental Kidnaping Prevention Act (PKPA) to address the interstate custody jurisdiction and enforcement problems that continued to exist after the adoption of the UCCJA. The PKPA mandates that state authorities give full faith and credit to other states' custody determinations, so long as those determinations were made in conformity with the provisions of the PKPA. The PKPA provisions regarding bases for jurisdiction, restrictions on modifications, preclusion of simultaneous proceedings, and notice requirements were similar to those in the UCCJA. There were, however, some significant differences.

As documented in an extensive study by the American Bar Association's Center on Children and the Law, Obstacles to the Recovery and Return of Parentally Abducted Children (1993) (Obstacles Study), inconsistency of interpretation of the UCCJA and the technicalities of applying the PKPA, resulted in a loss of uniformity among the states. The Obstacles Study suggested a number of amendments which would eliminate the inconsistent state interpretations and harmonize the UCCJA with the PKPA.

The UCCJEA revisions of the jurisdictional provisions of the UCCJA eliminated the inconsistent state interpretations and can be summarized as follows:

1. Home state priority. Rather than four concurrent bases of jurisdiction, the UCCJEA prioritized home state jurisdiction over all other bases thereby conforming the UCCJEA to the PKPA.

2. Clarification of emergency jurisdiction. This jurisdictional basis was clarified to make it clear that it provided jurisdiction only on a temporary basis and was specifically made applicable to state domestic violence protective order cases.

3. Exclusive continuing jurisdiction for the state that entered the decree. The UCCJEA made it explicit that the state that made the original custody determination retained exclusive continuing jurisdiction over the custody determination so long as that state remained the residence of a parent, the child, or a person acting as a parent.

4. Specification of what custody proceedings are covered. These provisions extended the coverage of the UCCJEA to all cases, except adoptions, where a child custody determination was made. This eliminated the substantial ambiguity of the UCCJA concerning which proceeding were covered.

5. Role of “Best Interests.” The UCCJEA eliminated the term “best interests” in order to clearly distinguish between the jurisdictional standards and the substantive standards relating to custody of and visitation with children.

The UCCJEA also enacted specific provisions on the enforcement of custody determinations for interstate cases. First, there is a simple procedure for registering a custody determination in another state. This allows a party to know in advance whether that state will recognize the party's custody determination. This is extremely important in estimating the risk of the child's non‑return when the child is sent on visitation to another state.

Second, the Act provides a swift remedy along the lines of habeas corpus. Time is extremely important in visitation and custody cases. If visitation rights cannot be enforced quickly, they often cannot be enforced at all. This is particularly true if there is a limited time within which visitation can be exercised such as may be the case when one parent has been granted visitation during the winter or spring holiday period. Without speedy consideration and resolution of the enforcement of such visitation rights, the ability to visit may be lost entirely. Similarly, a custodial parent must be able to obtain prompt enforcement when the noncustodial parent refuses to return a child at the end of authorized visitation, particularly when a summer visitation extension will infringe on the school year. A swift enforcement mechanism is desirable for violations of both custody and visitation provisions.

Third, the enforcing court will be able to utilize an extraordinary remedy. If the enforcing court is concerned that the parent, who has physical custody of the child, will flee or harm the child, a warrant to take physical possession of the child is available.

Finally, there is a role for public authorities, such as prosecutors, in the enforcement process. Their involvement will encourage the parties to abide by the terms of the custody determination. If the parties know that public authorities and law enforcement officers are available to help in securing compliance with custody determinations, the parties may be deterred from interfering with the exercise of rights established by court order.

II. THE 1996 HAGUE CONVENTION ON JURISDICTION, APPLICABLE LAW, RECOGNITION, ENFORCEMENT AND CO‑OPERATION IN RESPECT OF PARENTAL RESPONSIBILITY AND MEASURES FOR THE PROTECTION OF CHILDREN

At the same time that the Uniform Law Commission was revising the UCCJA, the Hague Conference on Private International law was revising the 1961 Convention on the Protection of Minors. That Convention was adopted by a number of European States and was utilized to recognize custody determinations. However, no common law country ratified the convention. The Hague Conference decided that a revised convention on jurisdiction and judgments with regard to minors might attract more countries as signatories. This resulted in the 1996 Convention which established international standards for jurisdiction, choice of law, and enforcement of judgments in cases regarding measures taken for the protection of minors.

There are significant differences between the UCCJEA and the 1996 Convention. However, the purposes of the two are very similar. They are both designed to allocate judicial competence to decide cases involving child custody and visitation. Both documents provide for enforcement of custody and visitation determinations of other states or countries. The differences are in the details of how this is to be accomplished.

There is a large part of the 1996 Convention that is devoted to country to country cooperation. There is a small role for a national central authority in carrying out the cooperation provisions of the Convention. Most of the cooperation provisions are ultimately directed to the "competent authority" which would be the appropriate entity under local law for carrying out the particular function referred to in the 1996 Convention. This means that the central authority in the United States will delegate these functions to the local authority. These cooperation problems will be addressed in the federal implementing legislation. Therefore it is not necessary to address the particular cooperation aspects contained in Chapter V of the 1996 Convention in this revision to the UCCJEA.

III. THE INTERNATIONAL CUSTODY CASE

The international child custody case, like the international child support case, has always been the marginal case in the multi‑state system. However, with increasing globalization, the international case has been assuming more importance. The international case was dealt with in both the UCCJA and the UCCJEA.

A. THE UCCJA

Section 23 of the UCCJA provided that the general policies of that Act applied to foreign country custody determinations. Foreign custody determinations were to be recognized and enforced if they were made consistently with the UCCJA and there was reasonable notice and opportunity to be heard. There were two types of issues that arose under this section. The first was whether a United States court would defer to a foreign tribunal when that tribunal would have jurisdiction under the UCCJA and the case was filed first in that tribunal. The second issue was whether a state of the United States would recognize, under this section, a custody determination made by a foreign tribunal.

On the first issue, the UCCJA was ambiguous and only required application of the “general policies” of the Act. Frequently courts in the United States would apply the same jurisdictional principles to international cases that they would apply in interstate cases. For example, in Superior Court v. Plas, 202 Cal.Rptr. 490 (Cal. Ct. App. 1984), the mother filed for custody when she had only been in California with her child for four months. The child was born in France and was raised and lived there with his family until shortly before the California hearing. The court determined that California lacked jurisdiction to hear the case and, even if it had jurisdiction, it should have deferred to France as the most convenient forum. However, not all states followed the same practice. For example, the Oregon Court of Appeals in Horiba v. Horiba, 950 P.2d 340 (Or. Ct. App. 1997), refused to defer to a pending Japanese proceeding since Japan was not a “state” under the definition of "state" in the UCCJA.

With respect to the second issue, most American states enforced foreign custody orders if made consistently with the jurisdictional standards of the UCCJA and reasonable notice and opportunity to be heard were afforded all participants. However, Missouri, New Mexico and Ohio refused to enact §23 of the UCCJA. Indiana formerly had a provision which seemed to affirmatively require the state to not recognize and enforce a foreign custody order. These provisions undermined the UCCJA principles of recognition and enforcement of custody determinations by countries with appropriate jurisdiction under the UCCJA and created obstacles to the return of children that were illegally abducted.

B. THE UCCJEA

Section 105(a) of the UCCJEA provides that a foreign country will be treated as if it is a state of the United States for the purposes of applying Articles I and II of the UCCJEA. This means that the scope and cooperation principles of Article I as well as the jurisdiction provisions of Article II apply to foreign countries in the same way that they apply to states of United States. Thus communication between a tribunal of the United States and a tribunal in a foreign country is mandatory in cases concerning emergency jurisdiction under Section 204 and simultaneous proceedings under Section 206. Otherwise tribunals in the United States may communicate with tribunals in foreign countries whenever it would be appropriate to communicate with tribunals in the United States under Section 110.

Section 105(b) requires tribunals in the United States to recognize foreign custody determinations if the facts and circumstances of the case indicate that the foreign custody determination was made in substantial conformity with the jurisdictional provisions of the UCCJEA. However, as indicated in Section105(c) a United States court is given the discretion not to apply the UCCJEA if the child custody law of a foreign country violates fundamental principles of human rights. The language of the section was taken from the Hague Convention on the Civil Aspects of International Child Abduction. The drafting committee of the UCCJEA did not attempt to define what aspects of a foreign custody law would violate fundamental principles of human rights. The committee considered a hypothetical case where the foreign custody law awarded custody of children automatically to the father. When asked to decide whether such a provision violated fundamental principles of human rights, the committee, along with the advisors and observers, could not agree. Therefore the application of that provision was left to the courts to determine on a case by case basis.

Comment

Our mandate is to amend the UCCJEA to incorporate the Convention. It seems that where the definitions in the UCCJEA and the Convention are substantively the same, although the language is slightly different, there is no need to amend the UCCJEA to provide Convention language. For example, the Convention states that it applies to children “from the moment of their birth until they reach the age of 18 years.” This is substantively the same as the definition of “child” currently in the UCCJEA and therefore no language change need be made.

There are places in the UCCJEA where its provisions ought to apply to all countries regardless of whether the United States is in a treaty relationship with that country under the Convention. The term “foreign country” is used under those circumstances. Where a provision of this Act is applicable only to foreign countries with which the United States has a treaty relationship with regard to the Convention the applicable term is “convention country.” Where a provision of this Act is applicable only to foreign countries with which the United States does not have a treaty relationship with regard to the Convention the term used is “non-convention country.”

Given that this draft uses the terms “foreign country,” “convention country,” or “non-convention country, along with the term “state,” the drafting committee may wish to consider whether Section 105 still retains viability. In other words given that the territorial scope of the UCCJEA is set out in each section, it may not be necessary to retain Section 105.

The definition of child custody determination has been amended to include some of the measures listed in the Convention in Article 3 that might not be obvious from a reading of the prior definition. It also specifically excludes any determination that relates to the child’s property. This is in line with the fact that the United States will take the reservation mentioned in Article 55 excluding the application of the Convention to property cases.

SECTION 103. PROCEEDINGS GOVERNED BY OTHER LAW. This [Act] does not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child.

SECTION 104. APPLICATION TO INDIAN TRIBES.

(a) A child‑custody proceeding that pertains to an Indian child as defined in the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq., is not subject to this [Act] to the extent that it is governed by the Indian Child Welfare Act.

[(b) A court of this Sstate shall treat a tribe as if it were a State of the United States for the purpose of applying [articles] 1 and 2.]

(c) A child-custody determination made in a convention country under factual circumstances in substantial conformity with the jurisdictional standards of [article] 4 must be recognized and enforced under that [article]. A child custody determination made in a convention country under factual circumstances in substantial conformity with the jurisdictional standards of [article] 2 may be recognized and enforced under [article] 3.

~~(c)~~(d) A court of this Sstate need not apply this [Act] if the child custody law of foreign country violates fundamental principles of human rights.

Comment

Version One applies the current UCCJEA to non-convention countries. Therefore if this version is adopted there will be no change to how foreign non-convention countries are treated, except insofar as Article 4 implements Convention distinctions between convention and non-convention countries. Convention country jurisdiction, applicable law and recognition will be determined under Article Four. However, some provisions of Articles 1 and 2 are specifically made applicable to convention countries either by expressly so stating or because the reference is made to “foreign countries” which would include both convention and non convention countries.

Version Two raises the option of partially keeping the current UCCJEA for recognition and enforcement purposes for convention countries. There was some sentiment in the telephone conference for retaining the current UCCJEA for foreign cases as much as possible. It is not possible to do so with regard to jurisdiction and applicable law. However, it may be possible to do so with regard to recognition and enforcement of foreign orders. Article 23(2) states that a convention country “may” refuse to recognize a foreign country order if one the categories in that article for non-recognition are established. It does not require non-recognition. Therefore within the confines of the convention a state can set up a recognition scheme that recognizes more orders that the convention would otherwise require. In thinking along that line I have added a new subsection (c). This subsection would require recognition of convention country determinations that are made in accordance with the jurisdictional requirements of Article 4 in an Article 4 proceeding. However, the second sentence gives a United States court the option of recognizing a determination of a convention country that exercised jurisdiction under Article 2 in an Article 3 proceeding.

I have also set this out in Article 4. It does not need to be in both places. The drafting committee should probably decide whether the recognition of judgments for convention countries ought to be in a general article or whether it should only be in the article dealing with convention cases. It is also possible, as mentioned earlier, that Section 105 may not be necessary if the drafting committee believes that setting out the territorial scope of each section though the use of the terms “convention country”, “non-convention country” and “foreign country” is the more appropriate method of handling the problem.

When the original UCCJEA was drafted we did not concern ourselves with service of process internationally, although we probably should have. There was no requirement that international service of process comply, when required, with the Hague Convention on Service of Process Abroad or other treaties concerning the service of process, although most courts have added that requirement. Rather the section merely indicated that service was valid if accomplished according to the law of this state or the law of the state where service took place. In those cases where the Service Convention is applicable it is the law of both this state and the foreign country and therefore must be complied with.

SECTION 109. APPEARANCE AND LIMITED IMMUNITY.

(a) A party to a child‑custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child‑custody determination, is not subject to personal jurisdiction in this Sstate for another proceeding or purpose solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding.

(b) A person who is subject to personal jurisdiction in this Sstate on a basis other than physical presence is not immune from service of process in this Sstate . A party present in this Sstate who is subject to the jurisdiction of another Sstate or foreign country is not immune from service of process allowable under the laws of that Sstate or foreign country .

(c) The immunity granted by subsection (a) does not extend to civil litigation based on acts unrelated to the participation in a proceeding under this [Act] committed by an individual while present in this Sstate .

Comment

The addition of “foreign country” is made here to allow service of process in this state if the person served is subject to the jurisdiction of the foreign country. If the addition is not made then the reference would only refer to a state of the United States and not to any foreign country.

SECTION 110. COMMUNICATION BETWEEN COURTS.

(a) A court of this Sstate may communicate with a court in another Sstate or foreign country concerning a proceeding arising under this [Act].

(b) The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.

(d)~~(c)~~ If there is a previous child‑custody determination that is entitled to be enforced under this [Act], or a child‑custody proceeding has been commenced in a court of a Sstate or non-convention country having jurisdiction under Sections 201 through 203, or a convention country having jurisdiction substantially in accordance with 402, any order issued by a court of this Sstate under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the Sstate or non-convention country having jurisdiction under Sections 201 through 203 or convention country having jurisdiction substantially in accordance with Section 403. The order issued in this Sstate remains in effect until the conditions of subsections (b)(1)(2) or (3) of this Section are satisfied, ~~of until an order is obtained from the other Sstate within the period specified~~ or the period expires.

(e)~~(d)~~ A court of this Sstate which has been asked to make a child‑custody determination under this section, upon being informed that a child‑custody proceeding has been commenced in, or a child‑custody determination has been made by, a court of a Sstate or non-convention country having jurisdiction under Sections 201 through 203, or convention country having jurisdiction substantially in accordance with Section 402 shall immediately communicate with the other court. A court of this Sstate which is exercising jurisdiction pursuant to Sections 201 through 203, or 402 upon being informed that a child‑custody proceeding has been commenced in, or a child‑custody determination has been made by, a court of another Sstate, or foreign country, under a statute similar to this section shall immediately communicate with the court of that Sstate or foreign country to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

Comment

Alternative B is an attempt to integrate the Convention provisions on urgency in Article 11 with the UCCJEA section on temporary emergency jurisdiction. It applies both to non-convention and convention countries, with different rules on recognition for convention and non-convention countries. There is also a separate “urgency’ provision in Article 4 which could be used if Alternative A is preferred.

Subsection (b)(3) refers to the term “habitual residence” which is not defined either in the Convention or in this Act. I use it because that is the Convention’s term for the expiration of an emergency order when appropriate jurisdiction is in the non-convention country of the habitual residence of the child. I suspect that its inclusion at this point in the Act may be somewhat confusing and perhaps the drafting committee may wish to keep that in mind in deciding whether this alternative is to be used or whether it would be better to cover emergency provisions with contracting countries in Article 4.

In subsection (c) I have kept the term “home state” to determine when a temporary emergency order could turn into a permanent order for both convention and non convention countries. The Convention does not have a provision similar to this. It merely provides that an emergency order can stay in place until the issue is determined by a state with appropriate jurisdiction. In theory we could say that the emergency order becomes a final order when this state becomes the habitual residence of the child. However, we would probably have to make that provision subject to the wrongful abduction provisions of Article 4. In addition, a change in habitual residence can occur very quickly and it seemed more appropriate to use the six-month provision at this point to be sure that the left behind parent had sufficient time to start a proceeding and obtain an order.

SECTION 205. NOTICE; OPPORTUNITY TO BE HEARD; JOINDER.

(a) Before a child‑custody determination is made under this [Act], notice and an opportunity to be heard in accordance with the standards of Section 108 must be given to all persons entitled to notice under the law of this Sstate as in child‑custody proceedings between residents of this Sstate, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.

(b) Except as provided in [article] 4, T[t]his [Act] does not govern the enforceability of a child‑custody determination made without notice or an opportunity to be heard.

(c) The obligation to join a party and the right to intervene as a party in a child‑custody proceeding under this [Act] are governed by the law of this Sstate as in child‑custody proceedings between residents of this Sstate.

Comment

The “except” provision refers to the section on recognition and enforcement proceedings in convention cases. There is a provision in those sections that authorize states not to recognize decisions from convention countries if there has not been appropriate notice. So therefore there is something in the Act that does indeed govern determinations made without notice.

SECTION 206. SIMULTANEOUS PROCEEDINGS.

(c) If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to subsection (a), it shall assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate. The court may not assess fees, costs, or expenses against this Sstate unless authorized by law other than this [Act].

Comment

The article of the Convention that deals with wrongful conduct on the part of the person invoking jurisdiction is Article 7 which concerns wrongful abductions. That problem is dealt with in the Convention article.

SECTION 209. INFORMATION TO BE SUBMITTED TO COURT.

(a) [Subject to [local law providing for the confidentiality of procedures, addresses, and other identifying information], in] [In] a child‑custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child's present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party:

(1) has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child‑custody determination, if any;

(2) knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding; and

(3) knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.

(c) Upon the filing of a petition, the court shall issue an order directing the respondent to appear in person with or without the child at a hearing and may enter any order necessary to ensure the safety of the parties and the child. The hearing must be held on the next judicial day after service of the order unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The court may extend the date of hearing at the request of the petitioner.

(d) An order issued under subsection (c) must state the time and place of the hearing and advise the respondent that at the hearing the court will order that the petitioner may take immediate physical custody of the child and the payment of fees, costs, and expenses under Section 312, and may schedule a hearing to determine whether further relief is appropriate, unless the respondent appears and establishes that:

(1) the child‑custody determination has not been registered and confirmed under Section 305 and that:

(A) the issuing court did not have jurisdiction under [article] 2;

(B) the child‑custody determination for which enforcement is sought has been vacated, stayed, or modified by a court having jurisdiction to do so under [article] 2; or

(C) the respondent was entitled to notice, but notice was not given in accordance with the standards of Section 108, in the proceedings before the court that issued the order for which enforcement is sought; or

(2) the child‑custody determination for which enforcement is sought was registered and confirmed under Section 304, but has been vacated, stayed, or modified by a court of a state or non-convention country having jurisdiction to do so under [article] 2.

Comment

There is no change to this section other than to add the term non-convention country. Currently the procedure for registration and enforcement of custody determinations under the Convention is placed in Article 4 in two alternatives. The drafting committee might also choose to amend this section and 310 to reflect the process set out in Alternative A to Section 305.

SECTION 309. SERVICE OF PETITION AND ORDER. Except as otherwise provided in Section 311, the petition and order must be served, by any method authorized [by the law of this Sstate ], upon respondent and any person who has physical custody of the child.

SECTION 317. COSTS AND EXPENSES. If the respondent is not the prevailing party, the court may assess against the respondent all direct expenses and costs incurred by the [prosecutor or other appropriate public official] and [law enforcement officers] under Section 315 or 316.

[ARTICLE] 4

SPECIAL RULES FOR CASES UNDER CONVENTION

Introductory Comment

This article applies exclusively to cases that fall under the Convention. It has no application to cases between states of the United States. It does apply to cases between states of the United States and non-convention countries to the extent that the Convention requires special treatment for non-convention countries that differs from the original UCCJEA. As noted, some aspects of the Convention could be covered in the earlier articles by specifying whether the section applied to all “foreign countries” including “convention countries”, or, whether the section applied only to states of the United States and “non-convention countries”. This article contains those rules, a lot of them, that could not be covered easily in the earlier sections.

As noted by the UIFSA reporter, when the Senate has given its advice and consent, the Convention has been ratified by the President, and certain formal procedures have been completed, the Convention will be a multilateral treaty between the United States and the other countries which have ratified or acceded to the Convention. The Convention is not self-executing and therefore its terms are not part of the substantive law of any state of the United States. Implementing legislation will be needed. This will require legislation at the federal level, as well as enactment of this revised UCCJEA by the states. Only at that time will this article of the UCCJEA become enforceable state law.

Like UIFSA, there has been no attempt here to set forth specifically what cases fall under the Convention. Generally, however, cases will fall under this article if two criteria are met:

1. The cases involves a state of the United States and a foreign country which has ratified the Convention. Or, the case involves a foreign country that had acceded to the Convention whose accession has not been rejected by the United States.

2. The subject matter of the case involves those issues covered by the Convention in Article 4. That determination should be made by a court when the issue arises as opposed to attempting to set forth in state statutory language which issues are covered by the Convention. The scope of the Convention is set forth in Articles 3 and 4. Most matters covered by the Convention can be subsumed under the phrase “custody determination.” However matters covered in Articles 3(d) and (f) might not be obvious. I have added those matters to a definition of custody determination in Section 102. There is also a definition of parental responsibility that is found in the choice of law sections. Note that all this is new material and for ease of reading I have not underlined the entire article.

SECTION 401. APPLICABILITY. This [article] applies only to a proceeding under the Convention. In such a proceeding if a provision of this [article] is inconsistent with [articles] 1 through 3, this article controls.

Comment

Related to the Convention: Articles 1, 3 and 4. Adapted from UIFSA Section 702. Like UIFSA §702, the first sentence definitively states that this article applies only to cases involving a convention country as that is defined in section 102. This article does not apply to a non-convention country except as specifically mentioned. The second sentence resolves any situation where there is a conflict between a section in this article and a provision in articles 1-3, in which case this article controls.

SECTION 402. JURISDICTION. Except as otherwise provided in Section 405 and 407, a court of this state has jurisdiction to make or modify a child‑custody determination only if:

(1) this state is the habitual residence of the child on the date of the commencement of the proceedings and remains so throughout the proceedings; or

(2) a court of another convention country does not have jurisdiction substantially in accordance with subparagraph (a) and the child is present in this state, or

(3) a court of a convention country with jurisdiction substantially in accordance with subparagraphs (a) or (b) has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 406.

Comment

Related to Convention: Arts. 5,6,8,9. For this draft I have adopted the position that the term “habitual residence” should not be defined. This issue was discussed in the memo. Since then I have talked to a number of European drafters, including the Permanent Bureau, all of whom cautioned against attempting to define a very fact laden term. I think the comments should point out that the term is not necessarily to receive the same construction as currently used by courts construing the Abduction Convention.

Otherwise this section relates primarily to articles 5 and 6 of the Convention. The phrase, “remains so throughout the proceeding” reflects the Convention position that jurisdiction changes when habitual residence changes, even if it is in the middle of a proceeding. A state can also have jurisdiction, apart from habitual residence, if the child has no habitual residence and is present in the jurisdiction, or is a state that has been found by the convention country of the habitual residence of the child to be a more convenient forum.

(2) the child resides in the convention country of the new habitual residence for one year from the time that every person with a right of custody should have known of the whereabouts of the child, no petition for the return of the child is pending in a court of the convention country of the new habitual residence of the child, or in a court of this state, and child is settled in the new environment.

(c) Except as provided in section 405, a court of this state does not have jurisdiction over a child whose habitual residence in this state is the result of a[n] [wrongful] abduction unless:

(1) every person with a right of custody has acquiesced in the [wrongful] abduction; or

(2) the child resides in this state for one year from the time that every person with a right of custody should have known of the whereabouts of the child, no petition for the return of the child is pending in a court of this state, or the convention country of the former habitual residence of the child, and the child is settled in the new environment.

Comment

Relation to Convention, Art 7. This section presents both sides of Article 7. It confirms that a court of this state does not lose its jurisdiction after a wrongful abduction unless the requirements of Article 7 are met. It also provides that a court of this state does not obtain jurisdiction if the child’s habitual residence in this state is the result of a wrongful abduction unless the requirements of the article are met.

The reference to a petition for the return of the child pending in the court of this state or the new habitual residence is in line with the interpretation of the Permanent Bureau. See Preliminary Document No. 4, Practical Handbook on the Operation of the 1996 Convention, available at http://www.hcch.net/upload/wop/abduct2011pd04e.pdf. It should be noted that a custody determination made by the court of the state from which the child has been abducted while that state still has jurisdiction under this section must be recognized and enforced under the section on recognition and enforcement.

The definition of wrongful abduction is taken from Article 7 of the Convention as supplemented by the language in the 1980 Convention on the Civil Aspects of International Child Abduction.

(d) If there is a previous child‑custody determination of a foreign country that is entitled to be enforced under this [Act], or a child‑custody proceeding has been commenced in a court of a foreign country having jurisdiction substantially in accordance with this [Act] any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the foreign country having jurisdiction substantially in accordance with this [Act]. The order issued in this state remains in effect until the conditions of subsections (b)(1) or (2) of this section are satisfied or the period expires.

(e) A court of this state which has been asked to make a child‑custody determination under this section, upon being informed that a child‑custody proceeding has been commenced in, or a child‑custody determination has been made by, a court of a foreign country having jurisdiction substantially in accordance with this [Act] shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to this [Act] upon being informed that a child‑custody proceeding has been commenced in, or a child‑custody determination has been made by, a court of a foreign country under a provision similar to this section shall immediately communicate with the court of that country to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

Comment

Related to Convention, Article 11

This is Alternative B of section 204 with substantial modifications. It covers both convention cases and non-convention cases. That is necessary because Article 11 of the Convention covers cases with convention countries and cases with non-convention countries. Therefore I have used the phrase “foreign country’ to cover situations common to both convention and non-convention cases. I have distinguished between convention and non-convention countries when required to do so by Article 11. That also means that when jurisdiction is to be exercised by the other country it is necessary in some cases to refer to this act, as opposed to simply this article, since article 2 applies to non-convention countries.

I have kept the definition of emergency from Section 204. The Convention does not define the term “urgency.” I think this is a situation where the Convention provides the basic rules. However, it should be possible to flesh out the Convention language so long as the draft does not detract from the Convention’s purpose.

Along the same line I have included the communication provisions from Section 204 even though the Convention does not have an communication provisions under the urgency section. However, Article 36 of the Convention requires that:

In the case where the child is exposed to a serious danger, the competent authorities of the Contracting State where measures for the protection of the child have been taken or are under consideration, if they are informed that the child’s habitual residence has changed to, or that the child is present in another State, shall inform the authorities of that other State about the dangers involved and the measures taken or under consideration.

It would seem that if a country is contemplating taking an emergency measure, it is likely that the child is being exposed to a serious danger. In which case it can be argued that the Convention does require communication between the court entertaining the emergency and the country that would otherwise have jurisdiction or where the child is located.

The other issue is whether to incorporate all this into section 204 or to have this section in this article for all foreign cases.

SECTION 406. INCONVENIENT FORUM [IN THE EVENT OPTION A OF SECTION 207 IS CHOSEN].

(a) A court of this state which has jurisdiction under Section 402 to make a child‑custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another convention country is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court's own motion, or request of another court.

(b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another convention country to exercise jurisdiction. For this purpose, the court may communicate with the court in another convention country and shall allow the parties to submit information and shall consider all relevant factors, including:

(1) whether domestic violence has occurred and is likely to continue in the future and which convention country could best protect the parties and the child;

(2) the length of time the child has resided outside this state ;

(3) the distance between the court in this state and the court in the convention country that would assume jurisdiction;

(a) A court of this state has jurisdiction to enter provisional orders for the protection of the child if the child is present in this state and has not been wrongfully abducted as defined in section 403. Provisional orders must not be incompatible with orders previously issued by a court of a convention country having jurisdiction substantially in accordance with Section 402 and such orders are limited to the territory of this state.

(b) A court of this state shall inform the court of the convention country with jurisdiction substantially in accordance with Section 402 of the existence of the provisional order.

(1) convention country having jurisdiction substantially in accordance with Section 402, or

(2) non-convention country where the child is habitually resident and the order is recognized by a court of this state or a court of another convention country.

Comment

Related to Convention, Art. 12. The issue with regard to the presence jurisdiction in Article 12 is whether it is possible to avoid this jurisdictional basis altogether. The discussion at the Special and Diplomatic Commissions on this article focused on the problems that occur when the child is habitually resident in country A and owns property in country B. Country B may require certain measures to be taken with regard to the property that are not, strictly speaking, emergencies, but which need to be done fairly quickly. Since the United States will take the reservation allowed by Article 55 with regard to property, this aspect of the presence jurisdiction is not necessary.

On the other hand, Article 12 is not limited to property and applies to situations where the child is present in the territory and some measure of a provisional nature needs to be taken with regard to the child. It is difficult to conceive of many situations where, absent an emergency, such jurisdiction would be necessary. The fact pattern mentioned by the Reporter, and discussed by the Diplomatic Commission, concerned a child present in a country for a limited period of time as an exchange student. The concern was what should occur when the family receiving the exchange student suddenly could not care for the child. This section would, according to the reporter, facilitate placing the exchange student with another family or shelter, but under the protection of the local social authorities. However, it could very well be argued that this situation constitutes an emergency and could be handled under those provisions.

If this concept is retained, the Convention provides a number of protections against its misuse. First, it is subject to Section 403, which deals with wrongful abductions. It cannot be used to subvert the provisions of that section. Second, the measures cannot be contrary to measures taken previously by the country of the child’s habitual residence. Third, measures taken under this Article lapse using the same procedure as with measures taken in an emergency, with the same difficulties.

(c) A court of this state may refuse to apply the law designated by this section if it is manifestly contrary to the public policy of this state [after considering the best interests of the child].

Comment

Related to Convention, Arts 15, 17, 20, 21(1), 22. These articles introduce into United States cases arising under the Convention a new element: the question of the applicable law. In the United States, as well as most other common law countries, allocation of competency between jurisdictions in child custody and visitation cases is handled by rules of jurisdiction and recognition of judgments. Choice of law is not used. A court that has jurisdiction over a custody determination applies its own substantive law of custody, visitation, dependency, neglect, etc. Given that choice of law is a new element for the United States, I thought the best way to approach this problem may be simply to set out the choice of law rules using the Convention language as much as possible.

The normal rule, contained in subparagraph (b)(1), is that a court that has jurisdiction under the Convention will apply its own law, which, given that the jurisdiction is likely to be the place of the child’s habitual residence, will result in the application of the law of the child’s habitual residence. However, the court may apply the law of another state which has a more substantial connection to the fact pattern.

The provision providing for the application of the law of another jurisdiction is likely to be little used in the United States. Since there will be no jurisdiction for the divorce court in the United States, the only concurrent jurisdiction will be urgency jurisdiction, or, possibly, presence jurisdiction. It is extremely unlikely that a court asked to decide a case concerning an emergency will have time to consider the law of another jurisdiction. Thus, practically all cases will be heard by the court of the child’s habitual residence which will apply its own law. However, it is possible that there may be a case, albeit rare, where even though a court has jurisdiction as the place of the child’s new habitual residence, the child, over the course of time, has had more connection with another country and therefore, although unlikely, the court of the child’s new habitual residence may wish to apply the law of the child’s previous habitual residence.

Subsection (b)(2) draws a distinction between the existence of the measures and the method of application of the measure in a particular state when the child’s habitual residence changes as required by Article 15(3). In other words, the distinction is the equivalent of the distinction between the law governing the validity of a contract and the performance of a contract. The substantive law governing, for example, visitation, is that of the forum. However, the conditions for carrying out the visitation arrangements are that of the child’s habitual residence. This is particularly apt, according to the reporter, in those situations where the original determination was made by the child’s habitual residence and then child’s habitual residence changes. The Explanatory Report acknowledges that there is not a clear line between the establishment of a measure and the means of carrying out the measure and suggests that the line will have to be drawn on a case-by-case basis.

Subsection (b)(3) distinguishes between the existence of custodial rights and the exercise of those rights. The applicable law is that of the habitual residence of the child.

(c) The law referred to in this section means the law in force in the chosen state or foreign country other than its conflict of law rules. However, if the law referred to in this section is the law of non-convention country and if the choice of law rules of the non-convention country would apply the law of another non-convention country, the law of the other non-convention country is applicable. If that non-convention country would not apply its own law then the law applicable is as stated in this section.

(d) A court of this state may refuse to apply the law designated by this section if it is manifestly contrary to the public policy of this state [after considering the best interests of the child].

Comment

Related to Convention, Arts 16, 21(2), 22. The specific rules referred to in this section are for situations where a state may have rules which provide for rights of custody, or parental responsibility, by operation of law, unilateral act, or agreement. Unlike anything else in the Convention, the rules do not concern decisions, but rather relationships created by local rules of law. The Convention provides that these issues be determined by the habitual residence of the child or the place where the unilateral act or agreement occurred,

Subsection (b)(1-3) provides that the parental responsibility that comes about by operation of law, agreement or unilateral act continues even if the habitual residence of the child changes.

Subsection (b)(4) deals with the reverse situation. It provides that if parents who do not have parental responsibility under the law of the child’s original habitual residence move to a state where parental responsibility by operation of law is applicable, the law of the new habitual residence applies.

Subsection (c) deals with the renvoi problem, i.e. whether the reference to the law of a particular State is to that State’s local law or whether the reference includes the conflict of law rules of the referred to State. Article 21 (2) contains a exception to the normal rule of referring only to local law for fact patterns that fall under Article 16. If the application of that article designates the law of a non-convention country and if the choice-of-law rules of that state would dictate applying the law of another non-convention country then the law of the second non-convention country applies. If the second non-convention country would not apply its own law then the Convention requires that the applicable law be that set forth in the section.

SECTION 411. DUTY TO RECOGNIZE.

Subsection (b) is a special case. The Convention allows a court having jurisdiction of the parent’s divorce or annulment to also exercise jurisdiction over child custody so long as one of the parents is habitually resident in the country, one parent has parental responsibility and the parties, as well as anyone else with parental responsibility, agree. This jurisdictional basis is not required under the Convention. However, the Convention does require recognition of custody determinations made in accordance with its jurisdictional standard be recognized. Therefore even though the United States does not have this jurisdictional basis to determine custody, the Convention does require recognition of custody determinations made by the divorce court under the circumstances set out in Article 10 of the Convention.

The jurisdiction authorized under Article 10 for the court of the divorce or annulment ceases when the divorce or annulment proceedings end. There is no continuing jurisdiction under the Convention. Therefore proceeding to modify the determination made by the divorce court are governed by Section 402.

The convention requires recognition as a matter of law without the intervention of a court or other tribunal. Recognition “by operation of law” means that it is not necessary to commence proceedings for the measure to be recognized in the requested Contracting State and for it to produce its effects there. An example set out by the Permanent Bureau in the Practical Handbook, and slightly modified, is as follows:

A family are habitually resident in Contracting State A. Following the breakdown of the parents’ relationship, the court in Contracting State A, with the agreement of the father, grants the mother sole custody of the child. A year later, the mother lawfully moves with the child to Contracting State B. She wishes to enroll the children in school. Her sole custody of the child which will allow enrollment in school will be recognized by operation of law in Contracting State B without her taking any further action. She will not have to apply to the judicial or administrative authorities in Contracting State B for recognition of the custody order.

I have placed this language in brackets. It raises the issue of to whom this act should be addressed. The example seems to assume that this Convention will be known to the appropriate school administrator. However, this act is addressed to judges who will decide cases. The drafting committee should discuss whether to limit this act to judges or whether the act has broader applicability to all decisions whether or not made by judges, and should also be applied by other administrators before whom these issue may appear.

Subsection (c) sets forth one of the ideas expressed in the alternative version of section 105. It arises out of the fact that the grounds for non-recognition which are set out in Article 23(2) of the convention are not phrased in mandatory standards. In other words there is nothing in the Convention which prohibits a court from recognizing a custody determination made by a convention country that did not comply with the jurisdictional standards of the Convention. This section would expand the United States recognition of foreign convention country custody determinations to those made in conformity with the jurisdictional standards of article 2 even if they did not comply with the jurisdictional standards of this article. Recognition is not mandatory under this alternative standard, but it permissive.

(f) If a timely request for a hearing to contest the validity of the registration is not made, the registration is confirmed as a matter of law and the person requesting registration and all persons served must be notified of the confirmation.

(g) Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.

Comment

Related to the Convention, Arts 23(2), 24, 25, 26, 28, 54. This article is an adaptation of the registration procedure under Section 305 to convention cases. The Convention provides that any interested person may request a determination by the court of another convention country on whether a decision taken in a contracting country can be recognized. The example discussed in the report is a situation where a mother in Country A has been granted custody with a proviso that she may not change the child’s habitual residence without the permission of the father. The father is willing to allow the mother to change the child’s habitual residence to Country B, but not to Country C. He might wish a pre-determination in Country B that it would continue to recognize the father’s ability to restrict the mother’s efforts to change the child’s habitual residence from Country B. The report also suggests that this principle would work to allow an interested person to obtain a pre-declaration on non-recognition. This section provides the procedure to request such a determination through a registration procedure very similar to that already in place. Indeed its use for this purpose was contemplated by the original UCCJEA drafting committee.

Of necessity some changes had to be made from the original version of Section 305. The first of these is in (a)(2) which deals with the translation problem. In accordance with Article 54 of the Convention this subsection requires that the documents be sent in the original language as well as a translation into English. This issue was not addressed in the original UCCJEA even though that Act is applicable internationally.

The amount of time necessary to contest a registered order has been extended to 60 days for persons not living in the United States. See UIFSA §707.

There is an important issue that needs to be considered at this point. The Convention does not require that the establishment of any of the defenses listed in Article 23(2) result in non-recognition. It only provides that a country may refuse to recognize a decision from another convention country if any of the defenses are established. The issue for the drafting committee is whether any of these defenses should be mandatory. For purposes of discussion I have drafted the defenses in this and other articles as mandatory, i.e. once the respondent proves one of the defenses the order cannot be recognized. For purposes of non-convention countries the defenses set out in (d)(1), (2), and (3) are mandatory since that was the way the UCCJEA was drafted, although in the Convention these are permissive only. The drafting committee needs to consider whether all the defenses should be mandatory, permissive, or whether some should be mandatory and others permissive.

Otherwise, subsection (d) adds to the defenses to registering an order, those defenses listed in Article 23(b) that were not contained in the UCCJEA. These include subsection (4) for those cases where the child did not have any input into the proceedings and the failure to solicit the child’s views violates the fundamental procedural policy of this state. I suspect this would rarely occur in the United States, however, outgoing cases will have to be carefully documented to insure United States orders are enforced abroad. Added also are sections that the order is incompatible with a later order issued by the non-convention state of the child’s habitual residence as well as a public policy defense which replicates that found under the applicable law sections.

The defense found in subsection (7) is one we may well want to consider. That refers to section 416(a) , Article 33 under the convention, which requires that if a court of another country is considering placing a child in this state it must first consult with the appropriate authority in this state and obtain this state’s consent. While we must comply with article 33 for outgoing cases, we are not obliged to have this defense to incoming cases.

Subsection (e) implements Article 25 and 27 which require that the enforcing court is bound by the findings of fact of the issuing court and cannot review the merits of the original order.

SECTION 412. REGISTRATION OF CONVENTION ORDER [ANOTHER ALTERNATIVE]. Registration of a child-custody determination issued by a convention country is governed by Section 305 with the following exceptions:

(1) Four copies of the custody determination sought to be enforced must be sent to the [appropriate court]. Two copies must be in the original language and two copies must be in English, including one certified copy of the determination sought to be registered.

(2) The court shall file two copies as a foreign judgment. One copy shall be in English and one shall be in the original language.

(3) The notice shall provide that a hearing to contest the validity of the registered determination must be requested within 60 days if the contesting party does not reside in the United States.