The Scope Committee, at the
request of the drafting committee asked, expansion to include domestic as well as international
abductions.
D R A F T
FOR DISCUSSION ONLY
UNIFORM CHILD ABDUCTION PREVENTION ACT
___________________________________________________
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM LAWS
___________________________________________________
For April 2006 Drafting Committee Meeting
WITH PREFATORY NOTE AND COMMENTS
Copyright © 2006
By
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM LAWS
The ideas and conclusions set forth in this draft, including the proposed statutory language and any comments or reporter’s notes, have not been passed upon by the National Conference of Commissioners on Uniform State Laws or the Drafting Committee. They do not necessarily reflect the views of the Conference and its Commissioners and the Drafting Committee and its Members and Reporter. Proposed statutory language may not be used to ascertain the intent or meaning of any promulgated final statutory proposal.
April 20, 2006
DRAFTING COMMITTEE ON UNIFORM CHILD ABDUCTION PREVENTION ACT
The Committee appointed by and representing the National Conference of Commissioners on Uniform State Laws in drafting this Uniform Child Abduction Prevention Act consists of the following individuals:
LYLE W. HILLYARD, 175 E. 1st N. Logan, Utah 84321, Chair
CYNTHIA BOSCO, California Department of Developmental Services, 1600 9th St. Rm 240 MS 2-14, Sacramento, CA 95814
VINCENT C. DELIBERATO, JR., Legislative Reference Bureau, Room 641, Main Capitol Building, Harrisburg, PA 17120-0033
W. MICHAEL DUNN, P.O. Box 3701, 1000 Elm St., Manchester, NH 03105
GORMAN HOUSTON, JR., 400 20th St. North, Birmingham, AL 35203
PETER K. MUNSON, 123 South Travis St., Sherman, TX 75090
MARIAN P. OPALA, Supreme Court, State Capitol, Room 238, Oklahoma City, OK 73105
CAM WARD, P.O. Box 1749, Alabaster, AL 35007
LINDA D. ELROD, Washburn University School of Law, 1700 SW College, Topeka, KS 66621, Reporter
EX OFFICIO
HOWARD J. SWIBEL, 120 S. Riverside Plaza, Suite 1200, Chicago, IL 60606, President
TOM BOLT, Corporate Place, 5600 Royal Dane Mall, St. Thomas, VI 00802-6410, Division Chair
AMERICAN BAR ASSOCIATION ADVISOR
BRUCE A. BOYER, Loyola Child Law Clinic, 16 E. Pearson St., Chicago, IL 60611
EXECUTIVE DIRECTOR
WILLIAM H. HENNING, University of Alabama School of Law, Box 870382, Tuscaloosa, AL 35487-0382, Executive Director
Copies of this Act may be obtained from:
NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS
211 E. Ontario Street, Suite 1300
Chicago, Illinois 60611
312/915-0195
UNIFORM CHILD ABDUCTION PREVENTION ACT
TABLE OF CONTENTS
SECTION 4. MOTION FOR MEASURES TO PREVENT ABDUCTION.
SECTION 6. WARRANT TO TAKE PHYSICAL CUSTODY OF CHILD
SECTION 7. RISK FACTORS OF ABDUCTION
SECTION 8. MEASURES TO PREVENT ABDUCTIONS
SECTION 9. RECOGNITION AND ENFORCEMENT
SECTION 10. DURATION OF ABDUCTION PREVENTION ORDER
SECTION 11. UNIFORMITY OF APPLICATION AND CONSTRUCTION
SECTION 12. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT
UNIFORM CHILD ABDUCTION PREVENTION ACT
In August, 2003, the National Conference of Commissioners on Uniform State Laws
(NCCUSL) appointed a study committee to explore the feasibility of a uniform law to prevent
child abduction in international custody disputes. The Joint Editorial Board for Uniform Family
Law Acts in October, 2003, urged the NCCUSL Committee on Scope and Program to
recommend the creation of a drafting committee. NCCUSL appointed a Drafting Committee on
the Standards for the Prevention of International Child Abduction.
The Scope Committee, at the
request of the drafting committee asked, expansion to include domestic as well as international
abductions.
Child abduction is a serious problem. The Office of Juvenile Justice and Delinquency
Prevention estimated that 262,100 children were abducted in 1999; 203,900 of them (or 78 per
cent) were abducted by a family member; approximately 1000 of the abductions were
international.
If an abduction occurs after a child-custody determination, all states have
enforcement proceedings, with forty-five jurisdictions using the Uniform Child Custody
Jurisdiction and Enforcement Act Section 3 procedures. If the abduction is international, the
Hague Convention on the Civil Aspects of International Child Abduction, in effect in over
seventy countries, facilitates the return of an abducted child to the child’s habitual residence.
There are also federal laws to help locate missing children.
Many abductions, however, occur before the court has entered a child-custody
determination. Families going through disputes over parenting time are the highest risk group for
potential abductions.
Many existing child-custody determinations do not contain sufficient
provisions to prevent an abduction because the orders are too vague or contain no restrictions on
parenting time.
The purpose of this Act is to deter domestic and international child abductions by parents
or any persons acting on behalf of the parent through identification of risk factors and imposition
of preventive measures. If judges have sufficient information about abduction risk factors, they
can place appropriate restrictions to prevent abductions. Dealing appropriately with the risk
factors at the time of an initial child-custody determination will help protect children from the
threat of abduction. Only three states have enacted specific child abduction prevention statutes.
A
couple of other states list abduction risk factors.
This Act will fill a void in the majority of states by identifying circumstances indicating a risk of abduction and providing measures to prevent the abduction of children, pre or post decree by parents or those acting on the parent’s behalf. The UCAPA is premised on the general principle that preventing abduction is usually in a child’s best interests.
UNIFORM CHILD ABDUCTION PREVENTION ACT
SECTION 1. SHORT TITLE. This [act] may be cited as the Uniform Child Abduction Prevention Act.
Comment
This Act is civil law and complements existing state laws. For example, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), 9 U.L.A. Part I 657 (1999), enacted in forty-five states, and the Uniform Child Custody Jurisdiction Act, 9 U.L.A. Part I 115 (1988) specify the jurisdictional requirements for making and enforcing a child-custody determination. The Parental Kidnapping Prevention Act of 1980 (“PKPA”), 28 U.S.C. § 1738A, requires that states give full faith and credit to sister state decrees made in accordance with the principles of the PKPA, which are the same as the UCCJEA.
Federal and state laws make parental kidnapping a crime.
While every state criminally
forbids custodial interference by parents or relatives of the child, the laws differ as to the
elements of the offenses, the punishments given, and whether a child-custody determination must
exist. If an abduction occurs, a court may find an abductor in contempt if there is violation of a
court order or injured parties may sue in tort for custodial interference. Most of these remedies
are available after an initial child-custody determination.
SECTION 2. DEFINITIONS. In this [act]:
(1) “Abduction” means taking, keeping, or concealing a child with the intent to obstruct the lawful exercise of parental rights.
(2) “Child” means an unemancipated individual who is less than 18 years of age.
(3) “Child-custody determination” means a judgment, decree, or other order of a court providing for the legal custody, physical custody, parenting time, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order.
(4) “Child-custody proceeding” means a proceeding in which legal custody, physical custody, parenting time, or visitation with respect to a child is at issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.
(5) “Court” means an entity authorized under the law of a state to establish, enforce, or modify a child-custody determination.
(6) “Jurisdiction,” depending on the context, means:
(A) a [county], state, [tribe,] or country; or
(B) the authority of a court to make a child-custody determination.
(7) “Motion” includes a petition or its equivalent.
( 8) “Parental rights” means the right to physical custody of a child
(A) whether joint or sole(and includes parenting time); and
(B) whether arising by operation of law, court order, or legally binding agreement of the parties.
(9) “Parenting time” means the residential and nonresidential time allocated by court order to each parent.
(10) “Person” means an individual or entity authorized by state law to seek a child-custody determination.
(11) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(12) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
(13) “Travel documents” mean records relating to a travel itinerary, including reservations for transportation and accommodations. The term does not include a passport or international visa.
[(14) “Tribe” means an Indian nation, tribe, or band, or Alaskan Native village, recognized by federal law or formally acknowledged by a state.]
Comment
The definition of abduction follows the International Parental Kidnapping Prevention Act.
The definition of a child as a person under age 18 is the same as in the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Section 102(2) and the Parental Kidnapping Prevention Act (PKPA). State law determines when a child becomes emancipated before age 18. This Act is limited to the abduction of minors even though the risk of abduction may apply to a disabled adult who has an appointed adult guardian.
The definition of “child-custody determination” includes the definition in UCCJEA Section 102(3) but adds the term “parenting time.” Local terminology may differ.
The definition of “child-custody proceeding” is identical to UCCJEA Section 102(4).
The term “parental rights” is used in place of “custody.” A biological or legal parent has a natural right to exercise parental rights. If the family is intact, both parents exercise parental rights, usually in one location. If the parents have never married and do not live together or the parties separate or divorce, the court in a paternity action or other legal proceeding may allocate parental rights, giving each parent detailed parenting time, often incorporating an agreement of the parents. If a child is removed from the care of the parents, a state entity, such as a social welfare agency, may have the right to determine the child’s residency.
SECTION 3. JURISDICTION. A request for relief under this [act] shall be brought in a court that has jurisdiction to make a child-custody determination with respect to the child at issue under [insert citation to state’s law - Uniform Child Custody Jurisdiction and Enforcement Act/Uniform Child Custody Jurisdiction Act]. A court has temporary emergency jurisdiction under section ___ of the UCCJEA if the child is present in this state and it is necessary in an emergency to protect the child because there is a risk of imminent abduction of the child.
Comment
This Act complements, but does not limit, contradict, or supercede the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA, however, does not cover intrastate and predecree situations. A court needs subject matter jurisdiction over the child, usually the home state under the UCCJEA for the initial child-custody determination. A court may need personal jurisdiction in order to subject a respondent to some of the remedies in this Act which go beyond a child custody determination. If a state would be able to exercise emergency jurisdiction under the UCCJEA, it can exercise jurisdiction under this Act even if another court has issued a child custody determination and has continuing exclusive jurisdiction under UCCJEA 204.
Under UCCJEA § 208, if a court has jurisdiction because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction. However, as the comment to Section 208 explains, domestic violence victims should not be charged with unjustifiable conduct for conduct that occurred in the process of fleeing domestic violence. Under UCCJEA § 207(b)(1), domestic violence shall be considered in a court’s inconvenient forum analysis.
SECTION 4. MOTION FOR MEASURES TO PREVENT ABDUCTION.
(a) The court may impose abduction prevention measures sua sponte, or a person may file a motion seeking abduction prevention measures. The motion must be verified and include a copy of any existing child-custody determination, if available. [Subject to local law providing for the confidentiality of procedures, addresses, and other identifying information], the motion must specify the risk factors for abduction including those described in section 6 or any other factors, and, if reasonably ascertainable:
(1) the name, birthdate, and gender of the child at risk for abduction;
(2) the present address or physical location of the child, if known;
(3) whether a prior motion to prevent abduction or domestic violence has been filed by either parent, the date of such motion, and its disposition;
(4) whether either party has been arrested or convicted or a crime related to domestic violence or child abuse; and
(5) any other information required to be submitted to the court for a child-custody determination [under UCCJEA Section 209 or applicable state law].
(b) If a person alleges in an affidavit or a pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of identifying information, the information must be sealed and may not be disclosed to the other party or the public unless the court orders the disclosure to be made after a hearing in which the court takes into consideration the health, safety, or liberty of the party or child and determines that the disclosure is in the interest of justice.
Comment
The contents of the motion follow those for pleadings under the UCCJEA § 209. The information is made subject to local law on the protection of names or identifying information in certain cases. A number of states have enacted laws relating to the protection of victims in domestic violence and child abuse cases which provide for the confidentiality of victims’ names, addresses, and other information. These procedures must be followed if the state law requires their applicability. If a state does not have local law that provides for protecting names and addresses, then subsection (c) or a similar provision should be adopted. Section (c) is modeled after UCCJEA § 209(e).
Usually the motion will be filed by a parent who fears that the other parent or family members are preparing to abduct the child. A state child welfare agency may have lawful custody and could be the party alleging the risk of abduction.
(a) If a person alleges that the risk of abduction is imminent, the court, after considering the risk factors in section 7 and searching the databases listed in subsection (b), may issue an immediate ex parte order granting temporary relief sufficient to prevent the abduction of the child, if appropriate under section 8. A court shall not enter an ex parte order granting relief if the movant has been subject to or is currently subject to a restraining order for domestic or family violence or if the movant has been arrested or convicted of domestic or family violence, or child abuse.
(b) Prior to entry of any order under this section or section 8, the court shall conduct a search of the National Crime Information enter Protection Order File (NCICPOF), the Wanted Person File, the Interstate Identification Index, and comparable state databases, to see if the names of the movant or respondent are listed for a reason related to a crime of domestic or family violence. The court shall also review the movant’s motion and ask specifically whether there have been any arrests, proceedings, or protection order applications related to a crime of domestic or family violence or child abuse, and their disposition.
(c) If the court issues an ex parte order, the order shall direct the respondent to appear in person with or without the child at the hearing and may make any other orders necessary to ensure the safety of the parties and the child. The order shall be served in the manner the court determines to be appropriate under the circumstances of the case and may include service by the sheriff. The person requesting the order shall pay the costs of service. The court shall hold a hearing as soon as reasonably possible and shall expedite the hearing if it finds an emergency exists.
(d) The order issued under subsection (c) of this section must state the time and place of the hearing and advise the respondent that at the hearing, the court may order that the temporary order be made permanent.
(e) If the court finds, after hearing, that a person sought an ex parte order with no factual basis or for the purpose of harassment or in bad faith, the court may award respondent reasonable attorney fees.
(f) The ex parte order may be enforced under [the UCCJEA or applicable law].
Comment
This section mirrors the UCCJEA section on expedited enforcement. Section 5 allows the court to issue ex parte relief immediately to prevent an abduction predecree or post decree. If there is an existing child-custody determination, it can be enforced under UCCJEA 311 or existing state law. Abductions that occur before a child-custody determination has been entered are not covered by the UCCJEA.
Judges need to be sensitive to issues of domestic violence so that an abuser cannot use this act to gain temporary custody. A person who has committed domestic violence or child abuse against the movant or child would potentially pose a risk of harm to the child and should not be awarded custody or additional parenting time with the child in an uncontested hearing. Such a person, however, is not prohibited from bringing an action for relief in a contested hearing where the issues can be fully examined by the court. In order to screen for domestic violence or child abuse, the court must ask movants to disclose all relevant information in their motions as well as at any hearings. In addition, the court must check relevant state and national databases to see if relevant information exists that has not been disclosed.
State law or local order may determine if an action has to be filed of record before a motion for ex parte relief is filed, the duration of the ex parte order, and the time for a full hearing on the merits.
SECTION 6. WARRANT TO TAKE PHYSICAL CUSTODY OF CHILD.
(a) Upon the filing of a motion seeking abduction prevention measures, the movant may file a verified application for the issuance of a warrant to take physical custody of the child if the child is in imminent danger of abduction.
(b) If the court, upon the testimony of the person filing the option or other witness, is satisfied that there is probable cause to believe that the child is imminently likely to be abducted and the issuance of a warrant is necessary to prevent the abduction, it may issue a warrant to take physical custody of the child. The motion must be heard on the next judicial day after the warrant is executed unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible.
(c) A warrant to take physical custody of a child must:
(1) recite the facts upon which a determination of imminent risk of abduction of a child is based;
(2) direct law enforcement officers to take physical custody of the child
immediately; and
(3) provide for the placement of the child pending further order of the court.
(d) The respondent must be served with the motion, warrant, and order immediately after the child is taken into physical custody.
(e) A warrant to take physical custody of a child is enforceable throughout this state. If the court finds on the basis of the sworn testimony of the movant or other witness that a less intrusive remedy will not be effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances of the case, the court may authorize law enforcement officers to make a forcible entry at any hour.
(f) The court may impose conditions upon placement of a child to ensure the appearance of the child and the child's custodian.
Comment
The warrant tracks UCCJEA § 311 which allows for a petitioner to file a verified application for the issuance of a warrant to take physical custody of the child if the child is immediately likely to be removed from this State. The judge has discretion and can weigh whether an emergency actually exists, whether the petitioner sought relief because of fear the respondent would run if notice were given, whether a prompt hearing with notice would meet the needs of the case, and the type of relief that needs to be given on an emergency basis.
SECTION 7. RISK FACTORS OF ABDUCTION.
(a) To determine whether there is credible risk of the abduction of the child, the court shall consider evidence that the respondent:
(1) has previously abducted or attempted to abduct the child;
(2) has threatened to abduct the child;
(3) has recently engaged in a pattern of abduction planning activities, including:
(A) abandoning employment;
(B) selling a primary residence, terminating a lease, or conducting any other such activities;
(C) closing financial management accounts, liquidating assets, hiding or destroying financial documents, and conducting any other extraordinary financial activities;
(D) applying for a passport, visa, or other travel documents, purchasing of travel tickets for the respondent, another family member, or the child; or
(E) seeking to obtain the child's birth certificate or school or medical records;
(4) has engaged in domestic violence, stalking, or child abuse or neglect;
(5) has failed or unjustifiably refused to cooperate with the other parent or follow orders of the court concerning a child custody determination for the child;
(6) lacks strong familial, financial, emotional or cultural ties to the jurisdiction or the United States, whether or not respondent is resident of the jurisdiction or a citizen or permanent resident of the United States;
(7) has strong familial, financial, emotional, or cultural ties to another jurisdiction or country;
(8) is likely to take the child to a country that:
(A) is not a party to or compliant with the Hague Convention on the Civil Aspects of International Child Abduction according to the most recent report on compliance issued by the United States Department of State;
(B) presents legal or other difficulties to returning the child to this country;
(C) does not have legal mechanisms for immediately and effectively enforcing a child-custody determination or a return order under the Hague Convention on the Civil Aspects of International Child Abduction;
(D) does not provide for the extradition of a parent who abducts the child and for the return of the child to this country;
(E) poses a risk that the child’s physical or emotional health or safety would be endangered in the country because of specific circumstances relating to the child or because of human rights violations committed against children;
(F) has local laws or practices that would:
(i) enable the respondent, without due cause, to prevent the movant from contacting the child;
(ii) restrict the movant from freely traveling to or exiting from the country because of the movant’s gender, nationality, marital status, or religion; or
(iii) restrict the child's ability legally to leave the country after the child reaches the age of majority because of a child’s gender, nationality, or religion;
(G) is included by the United States Department of State on a current list of state sponsors of terrorism;
(H) is a country for which the United States Department of State has issued a current warning to United States citizens regarding travel to the country;
(I) does not have an embassy of the United States in the country; or
(J) is engaged in active military action or war, including a civil war;
(9) is undergoing a change in immigration or citizenship status that would adversely affect the respondent’s ability to remain in the United States legally;
(10) has had an application for United States citizenship denied;
(11) has forged or presented misleading or false evidence on government forms to obtain or attempt to obtain a passport, visa, travel documents, social security card, driver’s license, or other government-issued identification card or has made a misrepresentation to the United States government.
(12) has used multiple names to attempt to mislead or defraud; or
(13) engaged in any other conduct the court considers relevant to the risk of abduction.
(b) The court shall consider credible evidence that the respondent believed in good faith that the conduct was necessary to avoid imminent harm to the child or parent.
Comment
(a) The risk factors are based on research that has been done during the last twelve years. ABA, Early Identification of Risk Factors for Parental Abduction (NCJ185026). The more of these factors that are present, the more likely the chance of an abduction. However, the mere presence of one or more of these factors does not mean that an abduction will occur just as the absence of these factors does not guarantee that no abduction will occur. Some factors can be done in conjunction with a relocation petition, which would negate an inference that the parent is planning to abduct the child. Researchers have identified three important characteristics of abducting parents or family members: they (1) dismiss the value of the other parent in the child’s lives; (2) have young children or children vulnerable to influence; and (3) often have the support of their family and others. See Janet Johnston & Linda Girdner, Family Abductors: Descriptive Profiles and Preventative Interventions (U.S. Dep’t of Justice, OJJDP 2001).
(8 ) There are difficulties associated with securing return of children from countries that have not ratified or acceded to the Hague Convention on the Civil Aspects of Child Abduction or are not compliant with the Hague. There are potentially grave risks to children if the children may be removed to countries that are guilty of human rights violations, including arranged marriages, child labor, lack of child abuse laws, female genital mutilation, sexual exploitation, any form of child slavery, torture and the deprivation of liberty. Judges should be particularly sensitive to the importance of preventative means where there is an identified risk of a child being removed to such countries. Compliance Reports are available at http:www.travel.state.gov/family/abductin/hague_issues
(8)(G) Travel warnings alone do not necessarily indicate that there will be difficult recovering a child.
(b) Some of the risk factors involve the same activities that might be undertaken by a victim of domestic violence. Therefore, the court should look at evidence that the parent preparing to leave is fleeing domestic violence. In such a situation, the court must consider that any order restricting departure or transferring custody may pose safety issues for the respondent and the child, and therefore, should be imposed only when the risk of abduction, the likely harm from the abduction, and the changes of recovery outweigh the risk of harm to the respondent and the child.
SECTION 8. MEASURES TO PREVENT ABDUCTIONS.
(a) If the court finds a credible risk of abduction by a preponderance of the evidence, the court shall enter an appropriate order. In determining the relief to be granted, the court shall consider the age of the child, the potential physical and psychological harm to the child from an abduction, the legal and practical difficulties of returning the child to the jurisdiction, and evidence of domestic violence. The court may include, but is not limited to, the following prevention measures:
(1) entering an appropriate child custody determination [under applicable state law] which shall state:
(A) the basis for the court's exercise of jurisdiction;
(B) the manner in which notice and opportunity to be heard were given to the persons entitled to notice of the proceeding;
(C) a detailed description of each parent’s parenting time; [and]
(D) a provision stating that a violation of the order may subject the party in violation to civil and criminal penalties, [and]
[(E) identification of the child’s domicile and habitual residence at the time of the issuance of the order.]
(2) issuing a warrant to take physical custody of a child;
(3) requiring supervised parenting time by the respondent until the court finds that supervision is no longer necessary and ordering respondent to pay for the supervision;
(4) prohibiting the respondent from directly or indirectly:
(A) removing or retaining the child in violation of the child-custody determination;
(B) removing the child from the school, child-care facility, or similar facility in which the child is enrolled; or
(C) approaching the child at any location other than a site designated for supervised parenting time;
(5) requiring the respondent to post a bond or to provide other security in an amount sufficient to serve as a financial deterrent to abduction, the proceeds of which may be used to pay for the expenses of recovery of the child, including attorneys fees and costs if there is an abduction with any excess being forfeited in whole or in part to the movant;
(6) restricting the right of a party to remove the child from the jurisdiction without permission of the court;
(7) requiring that a party traveling with the child provide the other party with the following:
(A) the travel itinerary of the child;
(B) a list of physical addresses and telephone numbers so the child can be reached at any time; and
(C) copies of any travel documents;
(8) requiring the respondent to obtain counseling on the potentially harmful effects to the child from abduction;
(9) requiring a party to register the child-custody determination in another state as a prerequisite to allowing the child to travel to that state;
(10) ordering passport and travel controls, including controls that:
(A) prohibit the respondent directly or indirectly from removing the child from this state or the United States;
(B) require the respondent to surrender any United States or foreign passport issued in the respondent’s name and the child's name, including any passport issued in the name of both the parent and the child to the court or the movant’s attorney;
(C) prohibit the respondent from applying on behalf of the child for a new or replacement passport or international travel visa;
(D) seek to place the respondent’s name and the child’s name on a list maintained by a government agency to prevent departure if there is one.
(11) Requiring the respondent to provide as a prerequisite to exercising parental rights:
(A) to the United States Department of State’s Office of Children’s Issues and the relevant foreign consulate or embassy:
(i) a record of any court-ordered passport and travel controls for the child; and
(ii) a properly authenticated copy of the court order detailing the restrictions and documentation of the respondent’s agreement to the restrictions; and
(iii) proof that the movant has contacted the Child Passport Issuance Alert Program with respect to the child.
(B) to the court, proof of service of the written notice to the United States Department of State’s Office of Children’s Issues and to the relevant foreign consulate or embassy of passport restrictions;
(C) proof of registration with the U.S. Embassy and foreign Central Authority in the destination country unless one of the parents objects;
(12) authorizing the assistance of law enforcement;
(13) requiring the respondent to obtain an order from another jurisdiction containing terms identical to the child-custody and visitation order issued in the United States unless movant objects; and
(14) ordering such other relief as the judge deems appropriate.
(b) If the court orders any of the measures in subsection (a), those measures must be specifically noted on the record of the court proceedings and stated in the order issued by the court.
Comment
Judges have a choice of remedies. Ideally the judge would choose the least restrictive measures to maximize opportunities for continued parental contact while minimizing the opportunities for abduction. The most restrictive measures should be used when there have been prior custody violations and overt threats to take the child; when the child faces substantial potential harm from an abducting parent who may have serious mental or personality disorder, history of abuse or violence or no prior relationship with the child; or when the obstacles to recovering the child are formidable due to countries not cooperating and enforcing orders from the United States, not being Hague signatories or non-compliant. Determining the potential harm to the child requires an analysis of the individual child.
(a)(1) A child-custody determination should be clear, specific and enforceable on its face nationally and internationally. The determination should contain a statement specifying the basis for the court’s exercise of jurisdiction. The more apparent on the face of the document that the court issuing the order had proper jurisdiction, the more likely courts in other states and countries are to recognize it as valid. A child custody determination entered under this act should be consistent with state law on initial or modification determinations. This Act is not intended to change the substantive law related to child custody.
(a)(1)(B) A statement showing that the parties were properly served and given adequate notice makes it apparent on the face of the order that due process was met. See UCCJEA § 205. States do not require personal jurisdiction over both parents to make a child-custody order under the UCCJEA.
(a)(1)(C) Vague orders are difficult to enforce without additional litigation. The dates and times for each parent’s parenting time should be specified, including holidays, birthdays, telephone or internet contact. The term “reasonable visitation” can lead to conflicts between the parents and make it difficult for law enforcement officers to know if the order is being violated. Joint custody arrangements create special problems. The court must specify the exact parenting times. If the court finds risk factors for abduction, the court should not award joint custody. The finding of a risk factor is sufficient to overcome a presumption in favor of joint custody.
(a)(1)(D) Judges need to impress upon both parties the importance of complying with the court order. The order can state in bold language: VIOLATION OF THIS ORDER MAY SUBJECT THE PARTY IN VIOLATION TO CIVIL AND CRIMINAL PENALTIES.
(a)(1)(E) Because every case may be a potential international abduction case, the order should identify the place of domicile and habitual residence of a child at the time the order was made. Although the Hague Convention on the Civil Aspects of International Child Abduction does not define habitual residence and the determination will be made by the court in the country to which the child has been wrongfully removed or retained, a statement in the order may assist in the determination of the child habitual residence at the time of the order.
(2)The younger the child the more likely they are to be abducted, the more likely they are to be victimized and therefore, are more likely to be in need of the most restrictive measures, including supervised visitation.
(4) Bonds can be a useful tool in conjunction with other prevention measures. A high
enough bond can be a deterrent and serve as a source of funds to help retrieve the child if an abduction occurs.
(5) While some states do not like to impose on a parent’s constitutional right to travel, a credible risk of abduction is sufficient to restrict a parent’s mobility with the child. The court may want to require the written permission of other parent or court order before the child is removed from the jurisdiction.
(7) If domestic violence is present, the court may want to order the abusive person to obtain counseling or attendance at a batterers’ intervention and prevention program (BIPP). Some research suggests that anger management programs do not seem to work as well as batterers’ intervention programs.
(9) If there is a credible risk of international abduction, passport controls are indispensable. International abductions are among the most complex and frustrating and all reasonable restrictions to prevent such abductions are necessary.
(11) Many law enforcement officers are unclear about their role in responding to parental kidnapping cases. A provision in the custody order directing law enforcement officer to “accompany and assist” a parent to recover an abducted child may be useful. One study showed that 70 percent of law enforcement agencies reported that they did not have written policies and procedures governing family abduction cases. The UCCJEA Sections 315 and 316 authorize law enforcement to enforce a child-custody determination.
(12) It may be possible to obtain a “mirror” or reciprocal order. Before exercising rights, the respondent would need to get a custody order from the country to which the respondent will travel that recognizes both the United States order and the court’s continuing jurisdiction. The foreign court would need to agree to order return of the child if the child was taken in violation of the court order. This potentially expensive and time consuming remedy should only be ordered when likely to be of assistance. These orders may be modified or enforced pursuant to the laws of the other country.
(a) (13) Relief may vary from state to state. In some states, it may be appropriate to appoint a representative for a child or a parenting coordinator.
SECTION 9. RECOGNITION AND ENFORCEMENT. An order issued under this [act] is enforceable under applicable state law as a child-custody determination.
SECTION 10. DURATION OF ABDUCTION PREVENTION ORDER. Abduction prevention orders shall remain in effect until the child reaches age 18 unless otherwise specified in the order, or subsequently modified or removed. Prevention measures may be deleted by the court upon motion of the original moving party.
SECTION 11. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
SECTION 12. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. This [act] modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. Section 7001 et seq.) but does not modify, limit, or supersede Section 101(c) of the act (15 U.S.C. Section 7001(c)) of that act or authorize electronic delivery of any of the notices described in Section 103(b) of that act (15 U.S.C. Section 7003(b)).
SECTION 13. EFFECTIVE DATE. This [act] takes effect on . . . .