UNIFORM CHILD CUSTODY JURISDICTION
AND ENFORCEMENT ACT (1997)
Drafted by the
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
and by it
APPROVED AND RECOMMENDED FOR
ENACTMENT IN ALL THE STATES
at its
ANNUAL CONFERENCE
MEETING IN ITS ONE-HUNDRED-AND-SIXTH YEAR
IN SACRAMENTO, CALIFORNIA
JULY 25 - AUGUST 1, 1997
WITH PREFATORY NOTE AND COMMENTS
COPYRIGHT 1997
By
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS UNIFORM CHILD CUSTODY JURISDICTION
AND ENFORCEMENT ACT (1997)
The Committee that acted for the National Conference of Commissioners on
Uniform State Laws in preparing the Uniform Child Custody Jurisdiction and
Enforcement Act (1997) was as follows:
MARIAN P. OPALA, Supreme Court, Room 238, State Capitol, Oklahoma City,
OK, 73105, Chair
DEBORAH E. BEHR, Office of Attorney General, Department of Law,
P.O. Box 110300, Juneau, AK 99811
ROBERT N. DAVIS, University of Mississippi, School of Law, University, MS 38677
ROBERT L. MCCURLEY, JR., Alabama Law Institute, P.O. Box 861425, Tuscaloosa,
AL 35486
DOROTHY J. POUNDERS, 47 N. Third Street, Memphis, TN 38103
BATTLE R. ROBINSON, Family Court Building, 22 The Circle, Georgetown, DE 19947
HARRY L. TINDALL, 2800 Texas Commerce Tower, 600 Travis Street, Houston,
TX 77002
LEWIS V. VAFIADES, P.O. Box 919, 23 Water Street, Bangor, ME 04402
MARTHA LEE WALTERS, Suite 220, 975 Oak Street, Eugene, OR 97401
ROBERT G. SPECTOR, University of Oklahoma College of Law, 300 Timberdell Road,
Norman, OK 73019, Reporter
EX OFFICIO
BION M. GREGORY, Office of Legislative Counsel, State Capitol, Suite 3021,
Sacramento, CA 95814-4996, President
DAVID PEEPLES, 224th District Court, Bexar County Courthouse, 100 Dolorosa,
San Antonio, TX 78205, Chair, Division F
EXECUTIVE DIRECTOR
FRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Road,
Norman, OK 73019, Executive Director
WILLIAM J. PIERCE, 1505 Roxbury Road, Ann Arbor, MI 48104,
Executive Director Emeritus
Copies of this Act may be obtained from:
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
676 North St. Clair Street, Suite 1700
Chicago, Illinois 60611
312/915-0195 UNIFORM CHILD-CUSTODY JURISDICTION
AND ENFORCEMENT ACT (1997)
PREFATORY NOTE
This Act, the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA), revisits the problem of the interstate child almost thirty years after the
Conference promulgated the Uniform Child Custody Jurisdiction Act (UCCJA).
The UCCJEA accomplishes two major purposes.
First, it revises the law on child custody jurisdiction in light of federal
enactments and almost thirty years of inconsistent case law. Article 2 of this Act
provides clearer standards for which States can exercise original jurisdiction over a
child custody determination. It also, for the first time, enunciates a standard of
continuing jurisdiction and clarifies modification jurisdiction. Other aspects of the
article harmonize the law on simultaneous proceedings, clean hands, and forum non
conveniens.
Second, this Act provides in Article 3 for a remedial process to enforce
interstate child custody and visitation determinations. In doing so, it brings a
uniform procedure to the law of interstate enforcement that is currently producing
inconsistent results. In many respects, this Act accomplishes for custody and
visitation determinations the same uniformity that has occurred in interstate child
support with the promulgation of the Uniform Interstate Family Support Act
(UIFSA).
Revision of Uniform Child Custody Jurisdiction Act
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), 28 U.S.C. 1738A, to address the interstate custody jurisdictional
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 are similar to those in the UCCJA. There are, however, some
significant differences. For example, the PKPA authorizes continuing exclusive
jurisdiction in the original decree State so long as one parent or the child remains
there and that State has continuing jurisdiction under its own law. The UCCJA did
not directly address this issue. To further complicate the process, the PKPA
partially incorporates state UCCJA law in its language. The relationship between
these two statutes became "technical enough to delight a medieval property
lawyer." Homer H. Clark, Domestic Relations 12.5 at 494 (2d ed. 1988).
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 revisions of the jurisdictional aspects of the UCCJA eliminate the
inconsistent state interpretations and can be summarized as follows:
1. Home state priority. The PKPA prioritizes "home state" jurisdiction by
requiring that full faith and credit cannot be given to a child custody determination
by a State that exercises initial jurisdiction as a "significant connection state" when
there is a "home State." Initial custody determinations based on "significant
connections" are not entitled to PKPA enforcement unless there is no home State.
The UCCJA, however, specifically authorizes four independent bases of
jurisdiction without prioritization. Under the UCCJA, a significant connection
custody determination may have to be enforced even if it would be denied
enforcement under the PKPA. The UCCJEA prioritizes home state jurisdiction in
Section 201.
2. Clarification of emergency jurisdiction. There are several problems
with the current emergency jurisdiction provision of the UCCJA 3(a)(3). First,
the language of the UCCJA does not specify that emergency jurisdiction may be
exercised only to protect the child on a temporary basis until the court with
appropriate jurisdiction issues a permanent order. Some courts have interpreted the
UCCJA language to so provide. Other courts, however, have held that there is no
time limit on a custody determination based on emergency jurisdiction.
Simultaneous proceedings and conflicting custody orders have resulted from these
different interpretations.
Second, the emergency jurisdiction provisions predated the widespread
enactment of state domestic violence statutes. Those statutes are often invoked to
keep one parent away from the other parent and the children when there is a threat
of violence. Whether these situations are sufficient to invoke the emergency
jurisdiction provision of the UCCJA has been the subject of some confusion since
the emergency jurisdiction provision does not specifically refer to violence directed
against the parent of the child or against a sibling of the child.
The UCCJEA contains a separate section on emergency jurisdiction at
Section 204 which addresses these issues.
3. Exclusive continuing jurisdiction for the State that entered the
decree. The failure of the UCCJA to clearly enunciate that the decree-granting
State retains exclusive continuing jurisdiction to modify a decree has resulted in
two major problems. First, different interpretations of the UCCJA on continuing
jurisdiction have produced conflicting custody decrees. States also have different
interpretations as to how long continuing jurisdiction lasts. Some courts have held
that modification jurisdiction continues until the last contestant leaves the State,
regardless of how many years the child has lived outside the State or how tenuous
the child's connections to the State have become. Other courts have held that
continuing modification jurisdiction ends as soon as the child has established a new
home State, regardless of how significant the child's connections to the decree State
remain. Still other States distinguish between custody orders and visitation orders.
This divergence of views leads to simultaneous proceedings and conflicting
custody orders.
The second problem arises when it is necessary to determine whether the
State with continuing jurisdiction has relinquished it. There should be a clear basis
to determine when that court has relinquished jurisdiction. The UCCJA provided
no guidance on this issue. The ambiguity regarding whether a court has declined
jurisdiction can result in one court improperly exercising jurisdiction because it
erroneously believes that the other court has declined jurisdiction. This caused
simultaneous proceedings and conflicting custody orders. In addition, some courts
have declined jurisdiction after only informal contact between courts with no
opportunity for the parties to be heard. This raised significant due process
concerns. The UCCJEA addresses these issues in Sections 110, 202, and 206.
4. Specification of what custody proceedings are covered. The
definition of custody proceeding in the UCCJA is ambiguous. States have rendered
conflicting decisions regarding certain types of proceedings. There is no general
agreement on whether the UCCJA applies to neglect, abuse, dependency, wardship,
guardianship, termination of parental rights, and protection from domestic violence
proceedings. The UCCJEA includes a sweeping definition that, with the exception
of adoption, includes virtually all cases that can involve custody of or visitation
with a child as a "custody determination."
5. Role of "Best Interests." The jurisdictional scheme of the UCCJA was
designed to promote the best interests of the children whose custody was at issue by
discouraging parental abduction and providing that, in general, the State with the
closest connections to, and the most evidence regarding, a child should decide that
child's custody. The "best interest" language in the jurisdictional sections of the
UCCJA was not intended to be an invitation to address the merits of the custody
dispute in the jurisdictional determination or to otherwise provide that "best
interests" considerations should override jurisdictional determinations or provide an
additional jurisdictional basis.
The UCCJEA eliminates the term "best interests" in order to clearly
distinguish between the jurisdictional standards and the substantive standards
relating to custody and visitation of children.
6. Other Changes. This draft also makes a number of additional
amendments to the UCCJA. Many of these changes were made to harmonize the
provisions of this Act with those of the Uniform Interstate Family Support Act.
One of the policy bases underlying this Act is to make uniform the law of interstate
family proceedings to the extent possible, given the very different jurisdictional
foundations. It simplifies the life of the family law practitioner when the same or
similar provisions are found in both Acts.
Enforcement Provisions
One of the major purposes of the revision of the UCCJA was to provide a
remedy for interstate visitation and custody cases. As with child support, state
borders have become one of the biggest obstacles to enforcement of custody and
visitation orders. If either parent leaves the State where the custody determination
was made, the other parent faces considerable difficulty in enforcing the visitation
and custody provisions of the decree. Locating the child, making service of
process, and preventing adverse modification in a new forum all present problems.
There is currently no uniform method of enforcing custody and visitation
orders validly entered in another State. As documented by the Obstacles Study,
despite the fact that both the UCCJA and the PKPA direct the enforcement of
visitation and custody orders entered in accordance with mandated jurisdictional
prerequisites and due process, neither act provides enforcement procedures or
remedies.
As the Obstacles Study pointed out, the lack of specificity in enforcement
procedures has resulted in the law of enforcement evolving differently in different
jurisdictions. In one State, it might be common practice to file a Motion to Enforce
or a Motion to Grant Full Faith and Credit to initiate an enforcement proceeding.
In another State, a Writ of Habeas Corpus or a Citation for Contempt might be
commonly used. In some States, Mandamus and Prohibition also may be utilized.
All of these enforcement procedures differ from jurisdiction to jurisdiction. While
many States tend to limit considerations in enforcement proceedings to whether the
court which issued the decree had jurisdiction to make the custody determination,
others broaden the considerations to scrutiny of whether enforcement would be in
the best interests of the child.
Lack of uniformity complicates the enforcement process in several ways:
(1) It increases the costs of the enforcement action in part because the services of
more than one lawyer may be required one in the original forum and one in the
State where enforcement is sought; (2) It decreases the certainty of outcome; (3) It
can turn enforcement into a long and drawn out procedure. A parent opposed to the
provisions of a visitation determination may be able to delay implementation for
many months, possibly even years, thereby frustrating not only the other parent, but
also the process that led to the issuance of the original court order.
The provisions of Article 3 provide several remedies for the enforcement of
a custody determination. First, there is a simple procedure for registering a custody
determination in another State. This will allow 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. The provision should prove to be very useful in international custody
cases.
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.
The scope of the enforcing court's inquiry is limited to the issue of whether
the decree court had jurisdiction and complied with due process in rendering the
original custody decree. No further inquiry is necessary because neither Article 2
nor the PKPA allows an enforcing court to modify a custody determination.
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.
The involvement of public authorities will also prove more effective in
remedying violations of custody determinations. Most parties do not have the
resources to enforce a custody determination in another jurisdiction. The
availability of the public authorities as an enforcement agency will help ensure that
this remedy can be made available regardless of income level. In addition, the
public authorities may have resources to draw on that are unavailable to the average
litigant.
This Act does not authorize the public authorities to be involved in the
action leading up to the making of the custody determination, except when
requested by the court, when there is a violation of the Hague Convention on the
Civil Aspects of International Child Abduction, or when the person holding the
child has violated a criminal statute. The Act does not mandate that public
authorities be involved in all cases. Not all States, or local authorities, have the
funds necessary for an effective custody and visitation enforcement program.
UNIFORM CHILD-CUSTODY JURISDICTION
AND ENFORCEMENT ACT (1997)
[ARTICLE] 1
GENERAL PROVISIONS
SECTION 101. SHORT TITLE. This [Act] may be cited as the Uniform
Child-Custody Jurisdiction and Enforcement Act.
Comment
Section 1 of the UCCJA was a statement of the purposes of the Act.
Although extensively cited by courts, it was eliminated because Uniform Acts no
longer contain such a section. Nonetheless, this Act should be interpreted
according to its purposes which are to:
(1) Avoid jurisdictional competition and conflict with courts of other States
in matters of child custody which have in the past resulted in the shifting of
children from State to State with harmful effects on their well-being;
(2) Promote cooperation with the courts of other States to the end that a
custody decree is rendered in that State which can best decide the case in the
interest of the child;
(3) Discourage the use of the interstate system for continuing controversies
over child custody;
(4) Deter abductions of children;
(5) Avoid relitigation of custody decisions of other States in this State;
(6) Facilitate the enforcement of custody decrees of other States;
SECTION 102. DEFINITIONS. In this [Act]:
(1) "Abandoned" means left without provision for reasonable and necessary
care or supervision.
(2) "Child" means an individual who has not attained 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, or visitation with
respect to a child. The term includes a permanent, temporary, initial, and
modification order. The term does not include an order relating to child support or
other monetary obligation of an individual.
(4) "Child-custody proceeding" means a proceeding in which legal custody,
physical custody, or visitation with respect to a child is an 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. The term does not include a proceeding involving
juvenile delinquency, contractual emancipation, or enforcement under [Article] 3.
(5) "Commencement" means the filing of the first pleading in a proceeding.
(6) "Court" means an entity authorized under the law of a State to establish,
enforce, or modify a child-custody determination.
(7) "Home State" means the State in which a child lived with a parent or a
person acting as a parent for at least six consecutive months immediately before the
commencement of a child-custody proceeding. In the case of a child less than six
months of age, the term means the State in which the child lived from birth with
any of the persons mentioned. A period of temporary absence of any of the
mentioned persons is part of the period.
(8) "Initial determination" means the first child-custody determination
concerning a particular child.
(9) "Issuing court" means the court that makes a child-custody
determination for which enforcement is sought under this [Act].
(10) "Issuing State" means the State in which a child-custody determination
is made.
(11) "Modification" means a child-custody determination that changes,
replaces, supersedes, or is otherwise made after a previous determination
concerning the same child, whether or not it is made by the court that made the
previous determination.
(12) "Person" means an individual, corporation, business trust, estate, trust,
partnership, limited liability company, association, joint venture, government;
governmental subdivision, agency, or instrumentality; public corporation; or any
other legal or commercial entity.
(13) "Person acting as a parent" means a person, other than a parent, who:
(A) has physical custody of the child or has had physical custody for a
period of six consecutive months, including any temporary absence, within one
year immediately before the commencement of a child-custody proceeding; and
(B) has been awarded legal custody by a court or claims a right to legal
custody under the law of this State.
(14) "Physical custody" means the physical care and supervision of a child.
(15) "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.
[(16) "Tribe" means an Indian tribe or band, or Alaskan Native village,
which is recognized by federal law or formally acknowledged by a State.]
(17) "Warrant" means an order issued by a court authorizing law
enforcement officers to take physical custody of a child.
Comment
The UCCJA did not contain a definition of "child." The definition here is
taken from the PKPA.
The definition of "child-custody determination" now closely tracks the
PKPA definition. It encompasses any judgment, decree or other order which
provides for the custody of, or visitation with, a child, regardless of local
terminology, including such labels as "managing conservatorship" or "parenting
plan."
The definition of "child-custody proceeding" has been expanded from the
comparable definition in the UCCJA. These listed proceedings have generally been
determined to be the type of proceeding to which the UCCJA and PKPA are
applicable. The list of examples removes any controversy about the types of
proceedings where a custody determination can occur. Proceedings that affect
access to the child are subject to this Act. The inclusion of proceedings related to
protection from domestic violence is necessary because in some States domestic
violence proceedings may affect custody of and visitation with a child. Juvenile
delinquency or proceedings to confer contractual rights are not "custody
proceedings" because they do not relate to civil aspects of access to a child. While
a determination of paternity is covered under the Uniform Interstate Family Support
Act, the custody and visitation aspects of paternity cases are custody proceedings.
Cases involving the Hague Convention on the Civil Aspects of International Child
Abduction have not been included at this point because custody of the child is not
determined in a proceeding under the International Child Abductions Remedies
Act. Those proceedings are specially included in the Article 3 enforcement
process.
"Commencement" has been included in the definitions as a replacement for
the term "pending" found in the UCCJA. Its inclusion simplifies some of the
simultaneous proceedings provisions of this Act.
The definition of "home State" has been reworded slightly. No substantive
change is intended from the UCCJA.
The term "issuing State" is borrowed from UIFSA. In UIFSA, it refers to
the court that issued the support or parentage order. Here, it refers to the State, or
the court, which made the custody determination that is sought to be enforced. It is
used primarily in Article 3.
The term "person" has been added to ensure that the provisions of this Act
apply when the State is the moving party in a custody proceeding or has legal
custody of a child. The definition of "person" is the one that is mandated for all
Uniform Acts.
The term "person acting as a parent" has been slightly redefined. It has
been broadened from the definition in the UCCJA to include a person who has
acted as a parent for a significant period of time prior to the filing of the custody
proceeding as well as a person who currently has physical custody of the child. In
addition, a person acting as a parent must either have legal custody or claim a right
to legal custody under the law of this State. The reference to the law of this State
means that a court determines the issue of whether someone is a "person acting as a
parent" under its own law. This reaffirms the traditional view that a court in a child
custody case applies its own substantive law. The court does not have to undertake
a choice-of-law analysis to determine whether the individual who is claiming to be
a person acting as a parent has standing to seek custody of the child.
The definition of "tribe" is the one mandated for use in Uniform Acts.
Should a State choose to apply this Act to tribal adjudications, this definition
should be enacted as well as the entirety of Section 104.
The term "contestant" as has been omitted from this revision. It was
defined in the UCCJA 2(1) as "a person, including a parent, who claims a right to
custody or visitation rights with respect to a child." It seems to have served little
purpose over the years, and whatever function it once had has been subsumed by
state laws on who has standing to seek custody of or visitation with a child. In
addition UCCJA 2(5) of the which defined "decree" and "custody decree" has
been eliminated as duplicative of the definition of "custody determination."
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.
Comment
Two proceedings are governed by other acts. Adoption cases are excluded
from this Act because adoption is a specialized area which is thoroughly covered by
the Uniform Adoption Act (UAA) (1994). Most States either will adopt that Act or
will adopt the jurisdictional provisions of that Act. Therefore the jurisdictional
provisions governing adoption proceeding are generally found elsewhere.
However, there are likely to be a number of instances where it will be
necessary to apply this Act in an adoption proceeding. For example, if a State
adopts the UAA then Section 3-101 of the Act specifically refers in places to the
Uniform Child Custody Jurisdiction Act which will become a reference to this Act.
Second, the UAA requires that if an adoption is denied or set aside, the court is to
determine the child's custody. UAA 3-704. Those custody proceedings would be
subject to this Act. See Joan Heifetz Hollinger, The Uniform Adoption Act:
Reporter's Ruminations, 30 Fam.L.Q. 345 (1996).
Children that are the subject of interstate placements for adoption or foster
care are governed by the Interstate Compact on the Placement of Children (ICPC).
The UAA 2-107 provides that the provisions of the compact, although not
jurisdictional, supply the governing rules for all children who are subject to it. As
stated in the Comments to that section: "Once a court exercises jurisdiction, the
ICPC helps determine the legality of an interstate placement." For a discussion of
the relationship between the UCCJA and the ICPC see J.D.S. v. Franks, 893 P.2d
732 (Ariz. 1995).
Proceedings pertaining to the authorization of emergency medical care for
children are outside the scope of this Act since they are not custody determinations.
All States have procedures which allow the State to temporarily supersede parental
authority for purposes of emergency medical procedures. Those provisions will
govern without regard to this Act.
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 State 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 by a tribe under factual
circumstances in substantial conformity with the jurisdictional standards of this
[Act] must be recognized and enforced under [Article] 3.]
Comment
This section allows States the discretion to extend the terms of this Act to
Indian tribes by removing the brackets. The definition of "tribe" is found at Section
102(16). This Act does not purport to legislate custody jurisdiction for tribal
courts. However, a Tribe could adopt this Act as enabling legislation by simply
replacing references to "this State" with "this Tribe."
Subsection (a) is not bracketed. If the Indian Child Welfare Act requires
that a case be heard in tribal court, then its provisions determine jurisdiction.
SECTION 105. INTERNATIONAL APPLICATION OF [ACT].
(a) A court of this State shall treat a foreign country as if it were a State of
the United States for the purpose of applying [Articles] 1 and 2.
(b) Except as otherwise provided in subsection (c), a child-custody
determination made in a foreign country under factual circumstances in substantial
conformity with the jurisdictional standards of this [Act] must be recognized and
enforced under [Article] 3.
(c) A court of this State need not apply this [Act] if the child custody law of
a foreign country violates fundamental principles of human rights.
Comment
The provisions of this Act have international application to child custody
proceedings and determinations of other countries. Another country will be treated
as if it were a State of the United States for purposes of applying Articles 1 and 2 of
this Act. Custody determinations of other countries will be enforced if the facts of
the case indicate that jurisdiction was in substantial compliance with the
requirements of this Act.
In this section, the term "child-custody determination" should be interpreted
to include proceedings relating to custody or analogous institutions of the other
country. See generally, Article 3 of The Hague Convention on Jurisdiction,
Applicable Law, Recognition, Enforcement and Co-operation in Respect of
Parental Responsibility and Measures for the Protection of Children. 35 I.L.M.
1391 (1996).
A court of this State may refuse to apply this Act when the child custody
law of the other country violates basic principles relating to the protection of human
rights and fundamental freedoms. The same concept is found in of the Section 20
of the Hague Convention on the Civil Aspects of International Child Abduction
(return of the child may be refused if this would not be permitted by the
fundamental principles of the requested State relating to the protection of human
rights and fundamental freedoms). In applying subsection (c), the court's scrutiny
should be on the child custody law of the foreign country and not on other aspects
of the other legal system. This Act takes no position on what laws relating to child
custody would violate fundamental freedoms. While the provision is a traditional
one in international agreements, it is invoked only in the most egregious cases.
This section is derived from Section 23 of the UCCJA.
SECTION 106. EFFECT OF CHILD-CUSTODY DETERMINATION. A
child-custody determination made by a court of this State that had jurisdiction
under this [Act] binds all persons who have been served in accordance with the
laws of this State or notified in accordance with Section 108 or who have submitted
to the jurisdiction of the court, and who have been given an opportunity to be heard.
As to those persons, the determination is conclusive as to all decided issues of law
and fact except to the extent the determination is modified.
Comment
No substantive changes have been made to this section which was Section
12 of the UCCJA.
SECTION 107. PRIORITY. If a question of existence or exercise of
jurisdiction under this [Act] is raised in a child-custody proceeding, the question,
upon request of a party, must be given priority on the calendar and handled
expeditiously.
Comment
No substantive change was made to this section which was Section 24 of the
UCCJA. The section is placed toward the beginning of Article 1 to emphasize its
importance.
The language change from "case" to "question" is intended to clarify that it
is the jurisdictional issue which must be expedited and not the entire custody case.
Whether the entire custody case should be given priority is a matter of local law.
SECTION 108. NOTICE TO PERSONS OUTSIDE STATE.
(a) Notice required for the exercise of jurisdiction when a person is outside
this State may be given in a manner prescribed by the law of this State for service
of process or by the law of the State in which the service is made. Notice must be
given in a manner reasonably calculated to give actual notice but may be by
publication if other means are not effective.
(b) Proof of service may be made in the manner prescribed by the law of
this State or by the law of the State in which the service is made.
(c) Notice is not required for the exercise of jurisdiction with respect to a
person who submits to the jurisdiction of the court.
Comment
This section authorizes notice and proof of service to be made by any
method allowed by either the State which issues the notice or the State where the
notice is received. This eliminates the need to specify the type of notice in the Act
and therefore the provisions of Section 5 of the UCCJA which specified how notice
was to be accomplished were eliminated. The change reflects an approach in this
Act to use local law to determine many procedural issues. Thus, service by
facsimile is permissible if allowed by local rule in either State. In addition, where
special service or notice rules are available for some procedures, in either
jurisdiction, they could be utilized under this Act. For example, if a case involves
domestic violence and the statute of either State would authorize notice to be served
by a peace officer, such service could be used under this Act.
Although Section 105 requires foreign countries to be treated as States for
purposes of this Act, attorneys should be cautioned about service and notice in
foreign countries. Countries have their own rules on service which must usually be
followed. Attorneys should consult the Hague Convention on the Service Abroad
of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 20 U.S.T.
36, T.I.A.S. 6638 (1965).
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 State 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 State on a basis
other than physical presence is not immune from service of process in this State. A
party present in this State who is subject to the jurisdiction of another State is not
immune from service of process allowable under the laws of that State.
(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 State.
Comment
This section establishes a general principle that participation in a custody
proceeding does not, by itself, give the court jurisdiction over any issue for which
personal jurisdiction over the individual is required. The term "participate" should
be read broadly. For example, if jurisdiction is proper under Article 2, a respondent
in an original custody determination, or a party in a modification determination,
should be able to request custody without this constituting the seeking of
affirmative relief that would waive personal jurisdictional objections. Once
jurisdiction is proper under Article 2, a party should not be placed in the dilemma
of choosing between seeking custody or protecting a right not to be subject to a
monetary judgment by a court with no other relationship to the party.
This section is comparable to the immunity provision of UIFSA 314. A
party who is otherwise not subject to personal jurisdiction can appear in a custody
proceeding or an enforcement action without being subject to the general
jurisdiction of the State by virtue of the appearance. However, if the petitioner
would otherwise be subject to the jurisdiction of the State, appearing in a custody
proceeding or filing an enforcement proceeding will not provide immunity. Thus,
if the non-custodial parent moves from the State that decided the custody
determination, that parent is still subject to the state's jurisdiction for enforcement
of child support if the child or an individual obligee continues to reside there. See
UIFSA 205. If the non-custodial parent returns to enforce the visitation aspects
of the custody determination, the State can utilize any appropriate means to collect
the back-due child support. However, the situation is different if both parties move
from State A after the determination, with the custodial parent and the child
establishing a new home State in State B, and the non-custodial parent moving to
State C. The non-custodial parent is not, at this point, subject to the jurisdiction of
State B for monetary matters. See Kulko v. Superior Court, 436 U.S. 84 (1978). If
the non-custodial parent comes into State B to enforce the visitation aspects of the
determination, the non-custodial parent is not subject to the jurisdiction of State B
for those proceedings and issues requiring personal jurisdiction by filing the
enforcement action.
A party also is immune from service of process during the time in the State
for an enforcement action except for those claims for which jurisdiction could be
based on contacts other than mere physical presence. Thus, when the non-custodial
parent comes into State B to enforce the visitation aspects of the decree, State B
cannot acquire jurisdiction over the child support aspects of the decree by serving
the non-custodial parent in the State. Cf. UIFSA 611 (personally serving the
obligor in the State of the residence of the obligee is not by itself a sufficient
jurisdictional basis to authorize a modification of child support). However, a party
who is in this State and subject to the jurisdiction of another State may be served
with process to appear in that State, if allowable under the laws of that State.
As the Comments to UIFSA 314 note, the immunity provided by this
section is limited. It does not provide immunity for civil litigation unrelated to the
enforcement action. For example, a party to an enforcement action is not immune
from service regarding a claim that involves an automobile accident occurring
while the party is in the State.
SECTION 110. COMMUNICATION BETWEEN COURTS.
(a) A court of this State may communicate with a court in another State
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.
(c) Communication between courts on schedules, calendars, court records,
and similar matters may occur without informing the parties. A record need not be
made of the communication.
(d) Except as otherwise provided in subsection (c), a record must be made
of a communication under this section. The parties must be informed promptly of
the communication and granted access to the record.
(e) For the purposes of this section, "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.
Comment
This section emphasizes the role of judicial communications. It authorizes a
court to communicate concerning any proceeding arising under this Act. This
includes communication with foreign tribunals and tribal courts. Communication
can occur in many different ways such as by telephonic conference and by on-line
or other electronic communication. The Act does not preclude any method of
communication and recognizes that there will be increasing use of modern
communication techniques.
Communication between courts is required under Sections 204, 206, and
306 and strongly suggested in applying Section 207. Apart from those sections,
there may be less need under this Act for courts to communicate concerning
jurisdiction due to the prioritization of home state jurisdiction. Communication is
authorized, however, whenever the court finds it would be helpful. The court may
authorize the parties to participate in the communication. However, the Act does
not mandate participation. Communication between courts is often difficult to
schedule and participation by the parties may be impractical. Phone calls often
have to be made after-hours or whenever the schedules of judges allow.
This section does require that a record be made of the conversation and that
the parties have access to that record in order to be informed of the content of the
conversation. The only exception to this requirement is when the communication
involves relatively inconsequential matters such as scheduling, calendars, and court
records. Included within this latter type of communication would be matters of
cooperation between courts under Section 112. A record includes notes or
transcripts of a court reporter who listened to a conference call between the courts,
an electronic recording of a telephone call, a memorandum or an electronic record
of the communication between the courts, or a memorandum or an electronic record
made by a court after the communication.
The second sentence of subsection (b) protects the parties against
unauthorized ex parte communications. The parties' participation in the
communication may amount to a hearing if there is an opportunity to present facts
and jurisdictional arguments. However, absent such an opportunity, the
participation of the parties should not to be considered a substitute for a hearing and
the parties must be given an opportunity to fairly and fully present facts and
arguments on the jurisdictional issue before a determination is made. This may be
done through a hearing or, if appropriate, by affidavit or memorandum. The court
is expected to set forth the basis for its jurisdictional decision, including any court-
to-court communication which may have been a factor in the decision.
SECTION 111. TAKING TESTIMONY IN ANOTHER STATE.
(a) In addition to other procedures available to a party, a party to a child-
custody proceeding may offer testimony of witnesses who are located in another
State, including testimony of the parties and the child, by deposition or other means
allowable in this State for testimony taken in another State. The court on its own
motion may order that the testimony of a person be taken in another State and may
prescribe the manner in which and the terms upon which the testimony is taken.
(b) A court of this State may permit an individual residing in another State
to be deposed or to testify by telephone, audiovisual means, or other electronic
means before a designated court or at another location in that State. A court of this
State shall cooperate with courts of other States in designating an appropriate
location for the deposition or testimony.
(c) Documentary evidence transmitted from another State to a court of this
State by technological means that do not produce an original writing may not be
excluded from evidence on an objection based on the means of transmission.
Comment
No substantive changes have been made to subsection (a) which was
Section 18 of the UCCJA.
Subsections (b) and (c) merely provide that modern modes of
communication are permissible in the taking of testimony and the transmittal of
documents. See UIFSA 316.
SECTION 112. COOPERATION BETWEEN COURTS;
PRESERVATION OF RECORDS.
(a) A court of this State may request the appropriate court of another State
to:
(1) hold an evidentiary hearing;
(2) order a person to produce or give evidence pursuant to procedures of
that State;
(3) order that an evaluation be made with respect to the custody of a
child involved in a pending proceeding;
(4) forward to the court of this State a certified copy of the transcript of
the record of the hearing, the evidence otherwise presented, and any evaluation
prepared in compliance with the request; and
(5) order a party to a child-custody proceeding or any person having
physical custody of the child to appear in the proceeding with or without the child.
(b) Upon request of a court of another State, a court of this State may hold
a hearing or enter an order described in subsection (a).
(c) Travel and other necessary and reasonable expenses incurred under
subsections (a) and (b) may be assessed against the parties according to the law of
this State.
(d) A court of this State shall preserve the pleadings, orders, decrees,
records of hearings, evaluations, and other pertinent records with respect to a child-
custody proceeding until the child attains 18 years of age. Upon appropriate
request by a court or law enforcement official of another State, the court shall
forward a certified copy of those records.
Comment
This section is the heart of judicial cooperation provision of this Act. It
provides mechanisms for courts to cooperate with each other in order to decide
cases in an efficient manner without causing undue expense to the parties. Courts
may request assistance from courts of other States and may assist courts of other
States.
The provision on the assessment of costs for travel provided in the UCCJA
19 has been changed. The UCCJA provided that the costs may be assessed
against the parties or the State or county. Assessment of costs against a
government entity in a case where the government is not involved is inappropriate
and therefore that provision has been removed. In addition, if the State is involved
as a party, assessment of costs and expenses against the State must be authorized by
other law. It should be noted that the term "expenses" means out-of-pocket costs.
Overhead costs should not be assessed as expenses.
No other substantive changes have been made. The term "social study" as
used in the UCCJA was replaced with the modern term: "custody evaluation." The
Act does not take a position on the admissibility of a custody evaluation that was
conducted in another State. It merely authorizes a court to seek assistance of, or
render assistance to, a court of another State.
This section combines the text of Sections 19-22 of the UCCJA.
[ARTICLE] 2
JURISDICTION
SECTION 201. INITIAL CHILD-CUSTODY JURISDICTION.
(a) Except as otherwise provided in Section 204, a court of this State has
jurisdiction to make an initial child-custody determination only if:
(1) this State is the home State of the child on the date of the
commencement of the proceeding, or was the home State of the child within six
months before the commencement of the proceeding and the child is absent from
this State but a parent or person acting as a parent continues to live in this State;
(2) a court of another State does not have jurisdiction under paragraph
(1), or a court of the home State of the child has declined to exercise jurisdiction on
the ground that this State is the more appropriate forum under Section 207 or 208,
and:
(A) the child and the child's parents, or the child and at least one
parent or a person acting as a parent, have a significant connection with this State
other than mere physical presence; and
(B) substantial evidence is available in this State concerning the
child's care, protection, training, and personal relationships;
(3) all courts having jurisdiction under paragraph (1) or (2) have
declined to exercise jurisdiction on the ground that a court of this State is the more
appropriate forum to determine the custody of the child under Section 207 or 208;
or
(4) no court of any other State would have jurisdiction under the criteria
specified in paragraph (1), (2), or (3).
(b) Subsection (a) is the exclusive jurisdictional basis for making a child-
custody determination by a court of this State.
(c) Physical presence of, or personal jurisdiction over, a party or a child is
not necessary or sufficient to make a child-custody determination.
Comment
This section provides mandatory jurisdictional rules for the original child
custody proceeding. It generally continues the provisions of the UCCJA 3.
However, there have been a number of changes to the jurisdictional bases.
1. Home State Jurisdiction. The jurisdiction of the home State has been
prioritized over other jurisdictional bases. Section 3 of the UCCJA provided four
independent and concurrent bases of jurisdiction. The PKPA provides that full
faith and credit can only be given to an initial custody determination of a
"significant connection" State when there is no home State. This Act prioritizes
home state jurisdiction in the same manner as the PKPA thereby eliminating any
potential conflict between the two acts.
The six-month extended home state provision of subsection (a)(1) has been
modified slightly from the UCCJA. The UCCJA provided that home state
jurisdiction continued for six months when the child had been removed by a person
seeking the child's custody or for other reasons and a parent or a person acting as a
parent continues to reside in the home State. Under this Act, it is no longer
necessary to determine why the child has been removed. The only inquiry relates
to the status of the person left behind. This change provides a slightly more refined
home state standard than the UCCJA or the PKPA, which also requires a
determination that the child has been removed "by a contestant or for other
reasons." The scope of the PKPA's provision is theoretically narrower than this
Act. However, the phrase "or for other reasons" covers most fact situations where
the child is not in the home State and, therefore, the difference has no substantive
effect.
In another sense, the six-month extended home state jurisdiction provision
is this Act is narrower than the comparable provision in the PKPA. The PKPA's
definition of extended home State is more expansive because it applies whenever a
"contestant" remains in the home State. That class of individuals has been
eliminated in this Act. This Act retains the original UCCJA classification of
"parent or person acting as parent" to define who must remain for a State to
exercise the six-month extended home state jurisdiction. This eliminates the
undesirable jurisdictional determinations which would occur as a result of differing
state substantive laws on visitation involving grandparents and others. For
example, if State A's law provided that grandparents could obtain visitation with a
child after the death of one of the parents, then the grandparents, who would be
considered "contestants" under the PKPA, could file a proceeding within six
months after the remaining parent moved and have the case heard in State A.
However, if State A did not provide that grandparents could seek visitation under
such circumstances, the grandparents would not be considered "contestants" and
State B where the child acquired a new home State would provide the only forum.
This Act bases jurisdiction on the parent and child or person acting as a parent and
child relationship without regard to grandparents or other potential seekers of
custody or visitation. There is no conflict with the broader provision of the PKPA.
The PKPA in (c)(1) authorizes States to narrow the scope of their jurisdiction.
2. Significant connection jurisdiction. This jurisdictional basis has been
amended in four particulars from the UCCJA. First, the "best interest" language of
the UCCJA has been eliminated. This phrase tended to create confusion between
the jurisdictional issue and the substantive custody determination. Since the
language was not necessary for the jurisdictional issue, it has been removed.
Second, the UCCJA based jurisdiction on the presence of a significant
connection between the child and the child's parents or the child and at least one
contestant. This Act requires that the significant connections be between the child,
the child's parents or the child and a person acting as a parent.
Third, a significant connection State may assume jurisdiction only when
there is no home State or when the home State decides that the significant
connection State would be a more appropriate forum under Section 207 or 208.
Fourth, the determination of significant connections has been changed to eliminate
the language of "present or future care." The jurisdictional determination should be
made by determining whether there is sufficient evidence in the State for the court
to make an informed custody determination. That evidence might relate to the past
as well as to the "present or future."
Emergency jurisdiction has been moved to a separate section. This is to
make it clear that the power to protect a child in crisis does not include the power to
enter a permanent order for that child except as provided by that section.
Paragraph (a)(3) provides for jurisdiction when all States with jurisdiction
under paragraphs (a)(1) and (2) determine that this State is a more appropriate
forum. The determination would have to be made by all States with jurisdiction
under subsection (a)(1) and (2). Jurisdiction would not exist under this paragraph
because the home State determined it is a more appropriate place to hear the case if
there is another State that could exercise significant connection jurisdiction under
subsection (a)(2).
Paragraph (a)(4) retains the concept of jurisdiction by necessity as found in
the UCCJA and in the PKPA. This default jurisdiction only occurs if no other State
would have jurisdiction under subsections (a)(1) through (a)(3).
Subsections (b) and (c) clearly State the relationship between jurisdiction
under this Act and other forms of jurisdiction. Personal jurisdiction over, or the
physical presence of, a parent or the child is neither necessary nor required under
this Act. In other words neither minimum contacts nor service within the State is
required for the court to have jurisdiction to make a custody determination.
Further, the presence of minimum contacts or service within the State does not
confer jurisdiction to make a custody determination. Subject to Section 204,
satisfaction of the requirements of subsection (a) is mandatory.
The requirements of this section, plus the notice and hearing provisions of
the Act, are all that is necessary to satisfy due process. This Act, like the UCCJA
and the PKPA is based on Justice Frankfurter's concurrence in May v. Anderson,
345 U.S. 528 (1953). As pointed out by Professor Bodenheimer, the reporter for
the UCCJA, no "workable interstate custody law could be built around [Justice]
Burton's plurality opinion ... . Bridgette Bodenheimer, The Uniform Child
Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the
Conflict of Laws, 22 Vand.L.Rev. 1207,1233 (1969). It should also be noted that
since jurisdiction to make a child custody determination is subject matter
jurisdiction, an agreement of the parties to confer jurisdiction on a court that would
not otherwise have jurisdiction under this Act is ineffective.
SECTION 202. EXCLUSIVE, CONTINUING JURISDICTION.
(a) Except as otherwise provided in Section 204, a court of this State which
has made a child-custody determination consistent with Section 201 or 203 has
exclusive, continuing jurisdiction over the determination until:
(1) a court of this State determines that neither the child, the child's
parents, and any person acting as a parent do not have a significant connection with
this State and that substantial evidence is no longer available in this State
concerning the child's care, protection, training, and personal relationships; or
(2) a court of this State or a court of another State determines that the
child, the child's parents, and any person acting as a parent do not presently reside
in this State.
(b) A court of this State which has made a child-custody determination and
does not have exclusive, continuing jurisdiction under this section may modify that
determination only if it has jurisdiction to make an initial determination under
Section 201.
Comment
This is a new section addressing continuing jurisdiction. Continuing
jurisdiction was not specifically addressed in the UCCJA . Its absence caused
considerable confusion, particularly because the PKPA, 1738(d), requires other
States to give Full Faith and Credit to custody determinations made by the original
decree State pursuant to the decree State's continuing jurisdiction so long as that
State has jurisdiction under its own law and remains the residence of the child or
any contestant.
This section provides the rules of continuing jurisdiction and borrows from
UIFSA as well as recent UCCJA case law. The continuing jurisdiction of the
original decree State is exclusive. It continues until one of two events occurs:
1. If a parent or a person acting as a parent remains in the original decree
State, continuing jurisdiction is lost when neither the child, the child and a parent,
nor the child and a person acting as a parent continue to have a significant
connection with the original decree State and there is no longer substantial evidence
concerning the child's care, protection, training and personal relations in that State.
In other words, even if the child has acquired a new home State, the original decree
State retains exclusive, continuing jurisdiction, so long as the general requisites of
the "substantial connection" jurisdiction provisions of Section 201 are met. If the
relationship between the child and the person remaining in the State with exclusive,
continuing jurisdiction becomes so attenuated that the court could no longer find
significant connections and substantial evidence, jurisdiction would no longer exist.
The use of the phrase "a court of this State" under subsection (a)(1) makes it
clear that the original decree State is the sole determinant of whether jurisdiction
continues. A party seeking to modify a custody determination must obtain an order
from the original decree State stating that it no longer has jurisdiction.
2. Continuing jurisdiction is lost when the child, the child's parents, and
any person acting as a parent no longer reside in the original decree State. The
exact language of subparagraph (a)(2) was the subject of considerable debate.
Ultimately the Conference settled on the phrase that "a court of this State or a court
of another State determines that the child, the child's parents, and any person acting
as a parent do not presently reside in this State" to determine when the exclusive,
continuing jurisdiction of a State ended. The phrase is meant to be identical in
meaning to the language of the PKPA which provides that full faith and credit is to
be given to custody determinations made by a State in the exercise of its continuing
jurisdiction when that "State remains the residence of ... ." The phrase is also the
equivalent of the language "continues to reside" which occurs in UIFSA
205(a)(1) to determine the exclusive, continuing jurisdiction of the State that
made a support order. The phrase "remains the residence of" in the PKPA has been
the subject of conflicting case law. It is the intention of this Act that paragraph
(a)(2) of this section means that the named persons no longer continue to actually
live within the State. Thus, unless a modification proceeding has been commenced,
when the child, the parents, and all persons acting as parents physically leave the
State to live elsewhere, the exclusive, continuing jurisdiction ceases.
The phrase "do not presently reside" is not used in the sense of a technical
domicile. The fact that the original determination State still considers one parent a
domiciliary does not prevent it from losing exclusive, continuing jurisdiction after
the child, the parents, and all persons acting as parents have moved from the State.
If the child, the parents, and all persons acting as parents have all left the
State which made the custody determination prior to the commencement of the
modification proceeding, considerations of waste of resources dictate that a court in
State B, as well as a court in State A, can decide that State A has lost exclusive,
continuing jurisdiction.
The continuing jurisdiction provisions of this section are narrower than the
comparable provisions of the PKPA. That statute authorizes continuing jurisdiction
so long as any "contestant" remains in the original decree State and that State
continues to have jurisdiction under its own law. This Act eliminates the contestant
classification. The Conference decided that a remaining grandparent or other third
party who claims a right to visitation, should not suffice to confer exclusive,
continuing jurisdiction on the State that made the original custody determination
after the departure of the child, the parents and any person acting as a parent. The
significant connection to the original decree State must relate to the child, the child
and a parent, or the child and a person acting as a parent. This revision does not
present a conflict with the PKPA. The PKPA's reference in 1738(d) to
1738(c)(1) recognizes that States may narrow the class of cases that would be
subject to exclusive, continuing jurisdiction. However, during the transition from
the UCCJA to this Act, some States may continue to base continuing jurisdiction
on the continued presence of a contestant, such as a grandparent. The PKPA will
require that such decisions be enforced. The problem will disappear as States adopt
this Act to replace the UCCJA.
Jurisdiction attaches at the commencement of a proceeding. If State A had
jurisdiction under this section at the time a modification proceeding was
commenced there, it would not be lost by all parties moving out of the State prior to
the conclusion of proceeding. State B would not have jurisdiction to hear a
modification unless State A decided that State B was more appropriate under
Section 207.
Exclusive, continuing jurisdiction is not reestablished if, after the child, the
parents, and all persons acting as parents leave the State, the non-custodial parent
returns. As subsection (b) provides, once a State has lost exclusive, continuing
jurisdiction, it can modify its own determination only if it has jurisdiction under the
standards of Section 201. If another State acquires exclusive continuing
jurisdiction under this section, then its orders cannot be modified even if this State
has once again become the home State of the child.
In accordance with the majority of UCCJA case law, the State with
exclusive, continuing jurisdiction may relinquish jurisdiction when it determines
that another State would be a more convenient forum under the principles of
Section 207.
SECTION 203. JURISDICTION TO MODIFY DETERMINATION.
Except as otherwise provided in Section 204, a court of this State may not modify a
child-custody determination made by a court of another State unless a court of this
State has jurisdiction to make an initial determination under Section 201(a)(1) or
(2) and:
(1) the court of the other State determines it no longer has exclusive,
continuing jurisdiction under Section 202 or that a court of this State would be a
more convenient forum under Section 207; or
(2) a court of this State or a court of the other State determines that the
child, the child's parents, and any person acting as a parent do not presently reside
in the other State.
Comment
This section complements Section 202 and is addressed to the court that is
confronted with a proceeding to modify a custody determination of another State.
It prohibits a court from modifying a custody determination made consistently with
this Act by a court in another State unless a court of that State determines that it no
longer has exclusive, continuing jurisdiction under Section 202 or that this State
would be a more convenient forum under Section 207. The modification State is
not authorized to determine that the original decree State has lost its jurisdiction.
The only exception is when the child, the child's parents, and any person acting as a
parent do not presently reside in the other State. In other words, a court of the
modification State can determine that all parties have moved away from the
original State. The court of the modification State must have jurisdiction under the
standards of Section 201.
SECTION 204. TEMPORARY EMERGENCY JURISDICTION.
(a) A court of this State has temporary emergency jurisdiction if the child is
present in this State and the child has been abandoned or it is necessary in an
emergency to protect the child because the child, or a sibling or parent of the child,
is subjected to or threatened with mistreatment or abuse.
(b) If there is no previous child-custody determination that is entitled to be
enforced under this [Act] and a child-custody proceeding has not been commenced
in a court of a State having jurisdiction under Sections 201 through 203, a child-
custody determination made under this section remains in effect until an order is
obtained from a court of a State having jurisdiction under Sections 201 through
203. If a child-custody proceeding has not been or is not commenced in a court of a
State having jurisdiction under Sections 201 through 203, a child-custody
determination made under this section becomes a final determination, if it so
provides and this State becomes the home State of the child.
(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 State having jurisdiction under Sections 201 through 203, 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 State having jurisdiction under Sections 201 through 203. The order
issued in this State remains in effect until an order is obtained from the other State
within the period specified or the period expires.
(d) 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 State having jurisdiction under Sections 201 through 203,
shall immediately communicate with the other court. A court of this State which is
exercising jurisdiction pursuant to Sections 201 through 203, 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 State under a statute similar to
this section shall immediately communicate with the court of that State 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
The provisions of this section are an elaboration of what was formerly
Section 3(a)(3) of the UCCJA. It remains, as Professor Bodenheimer's comments
to that section noted, "an extraordinary jurisdiction reserved for extraordinary
circumstances."
This section codifies and clarifies several aspects of what has become
common practice in emergency jurisdiction cases under the UCCJA and PKPA.
First, a court may take jurisdiction to protect the child even though it can claim
neither home State nor significant connection jurisdiction. Second, the duties of
States to recognize, enforce and not modify a custody determination of another
State do not take precedence over the need to enter a temporary emergency order to
protect the child.
Third, a custody determination made under the emergency jurisdiction
provisions of this section is a temporary order. The purpose of the order is to
protect the child until the State that has jurisdiction under Sections 201-203 enters
an order.
Under certain circumstances, however, subsection (b) provides that an
emergency custody determination may become a final custody determination. If
there is no existing custody determination, and no custody proceeding is filed in a
State with jurisdiction under Sections 201-203, an emergency custody
determination made under this section becomes a final determination, if it so
provides, when the State that issues the order becomes the home State of the child.
Subsection (c) is concerned with the temporary nature of the order when
there exists a prior custody order that is entitled to be enforced under this Act or
when a subsequent custody proceeding is filed in a State with jurisdiction under
Sections 201- 203. Subsection (c) allows the temporary order to remain in effect
only so long as is necessary for the person who obtained the determination under
this section to present a case and obtain an order from the State with jurisdiction
under Sections 201-203. That time period must be specified in the order. If there is
an existing order by a State with jurisdiction under Sections 201-203, that order
need not be reconfirmed. The temporary emergency determination would lapse by
its own terms at the end of the specified period or when an order is obtained from
the court with jurisdiction under Sections 202-203. The court with appropriate
jurisdiction also may decide, under the provisions of 207, that the court that entered
the emergency order is in a better position to address the safety of the person who
obtained the emergency order, or the child, and decline jurisdiction under Section
207.
Any hearing in the State with jurisdiction under Sections 201-203 on the
temporary emergency determination is subject to the provisions of Sections 111 and
112. These sections facilitate the presentation of testimony and evidence taken out
of State. If there is a concern that the person obtaining the temporary emergency
determination under this section would be in danger upon returning to the State
with jurisdiction under Sections 201-203, these provisions should be used.
Subsection (d) requires communication between the court of the State that is
exercising jurisdiction under this section and the court of another State that is
exercising jurisdiction under Sections 201-203. The pleading rules of Section 209
apply fully to determinations made under this section. Therefore, a person seeking
a temporary emergency custody determination is required to inform the court
pursuant to Section 209(d) of any proceeding concerning the child that has been
commenced elsewhere. The person commencing the custody proceeding under
Sections 201-203 is required under Section 209(a) to inform the court about the
temporary emergency proceeding. These pleading requirements are to be strictly
followed so that the courts are able to resolve the emergency, protect the safety of
the parties and the child, and determine a period for the duration of the temporary
order.
Relationship to the PKPA. The definition of emergency has been
modified to harmonize it with the PKPA. The PKPA's definition of emergency
jurisdiction does not use the term "neglect." It defines an emergency as
"mistreatment or abuse." Therefore "neglect" has been eliminated as a basis for the
assumption of temporary emergency jurisdiction. Neglect is so elastic a concept
that it could justify taking emergency jurisdiction in a wide variety of cases. Under
the PKPA, if a State exercised temporary emergency jurisdiction based on a finding
that the child was neglected without a finding of mistreatment or abuse, the order
would not be entitled to federal enforcement in other States.
Relationship to Protective Order Proceedings. The UCCJA and the
PKPA were enacted long before the advent of state procedures on the use of
protective orders to alleviate problems of domestic violence. Issues of custody and
visitation often arise within the context of protective order proceedings since the
protective order is often invoked to keep one parent away from the other parent and
the children when there is a threat of violence. This Act recognizes that a
protective order proceeding will often be the procedural vehicle for invoking
jurisdiction by authorizing a court to assume temporary emergency jurisdiction
when the child's parent or sibling has been subjected to or threatened with
mistreatment or abuse.
In order for a protective order that contains a custody determination to be
enforceable in another State it must comply with the provisions of this Act and the
PKPA. Although the Violence Against Women's Act (VAWA), 18 U.S.C. 2265,
does provide an independent basis for the granting of full faith and credit to
protective orders, it expressly excludes "custody" orders from the definition of
"protective order," 22 U.S.C. 2266.
Many States authorize the issuance of protective orders in an emergency
without notice and hearing. This Act does not address the propriety of that
procedure. It is left to local law to determine the circumstances under which such
an order could be issued, and the type of notice that is required, in a case without an
interstate element. However, an order issued after the assumption of temporary
emergency jurisdiction is entitled to interstate enforcement and nonmodification
under this Act and the PKPA only if there has been notice and a reasonable
opportunity to be heard as set out in Section 205. Although VAWA does require
that full faith and credit be accorded to ex parte protective orders if notice will be
given and there will be a reasonable opportunity to be heard, it does not include a
"custody" order within the definition of "protective order."
VAWA does play an important role in determining whether an emergency
exists. That Act requires a court to give full faith and credit to a protective order
issued in another State if the order is made in accordance with the VAWA. This
would include those findings of fact contained in the order. When a court is
deciding whether an emergency exists under this section, it may not relitigate the
existence of those factual findings.
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 State as in child-
custody proceedings between residents of this State, any parent whose parental
rights have not been previously terminated, and any person having physical custody
of the child.
(b) This [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 State as
in child-custody proceedings between residents of this State.
Comment
This section generally continues the notice provisions of the UCCJA.
However, it does not attempt to dictate who is entitled to notice. Local rules vary
with regard to persons entitled to seek custody of a child. Therefore, this section
simply indicates that persons entitled to seek custody should receive notice but
leaves the rest of the determination to local law. Parents whose parental rights have
not been previously terminated and persons having physical custody of the child are
specifically mentioned as persons who must be given notice. The PKPA,
1738A(e), requires that they be given notice in order for the custody
determination to be entitled to full faith and credit under that Act.
State laws also vary with regard to whether a court has the power to issue an
enforceable temporary custody order without notice and hearing in a case without
any interstate element. Such temporary orders may be enforceable, as against due
process objections, for a short period of time if issued as a protective order or a
temporary restraining order to protect a child from harm. Whether such orders are
enforceable locally is beyond the scope of this Act. Subsection (b) clearly provides
that the validity of such orders and the enforceability of such orders is governed by
the law which authorizes them and not by this Act. An order is entitled to interstate
enforcement and nonmodification under this Act only if there has been notice and
an opportunity to be heard. The PKPA, 1738A(e), also requires that a custody
determination is entitled to full faith and credit only if there has been notice and an
opportunity to be heard.
Rules requiring joinder of people with an interest in the custody of and
visitation with a child also vary widely throughout the country. The UCCJA has a
separate section on joinder of parties which has been eliminated. The issue of who
is entitled to intervene and who must be joined in a custody proceeding is to be
determined by local state law.
A sentence of the UCCJA 4 which indicated that persons outside the State
were to be given notice and an opportunity to be heard in accordance with the
provision of that Act has been eliminated as redundant.
SECTION 206. SIMULTANEOUS PROCEEDINGS.
(a) Except as otherwise provided in Section 204, a court of this State may
not exercise its jurisdiction under this [article] if, at the time of the commencement
of the proceeding, a proceeding concerning the custody of the child has been
commenced in a court of another State having jurisdiction substantially in
conformity with this [Act], unless the proceeding has been terminated or is stayed
by the court of the other State because a court of this State is a more convenient
forum under Section 207.
(b) Except as otherwise provided in Section 204, a court of this State,
before hearing a child-custody proceeding, shall examine the court documents and
other information supplied by the parties pursuant to Section 209. If the court
determines that a child-custody proceeding has been commenced in a court in
another State having jurisdiction substantially in accordance with this [Act], the
court of this State shall stay its proceeding and communicate with the court of the
other State. If the court of the State having jurisdiction substantially in accordance
with this [Act] does not determine that the court of this State is a more appropriate
forum, the court of this State shall dismiss the proceeding.
(c) In a proceeding to modify a child-custody determination, a court of this
State shall determine whether a proceeding to enforce the determination has been
commenced in another State. If a proceeding to enforce a child-custody
determination has been commenced in another State, the court may:
(1) stay the proceeding for modification pending the entry of an order of
a court of the other State enforcing, staying, denying, or dismissing the proceeding
for enforcement;
(2) enjoin the parties from continuing with the proceeding for
enforcement; or
(3) proceed with the modification under conditions it considers
appropriate.
Comment
This section represents the remnants of the simultaneous proceedings
provision of the UCCJA 6. The problem of simultaneous proceedings is no
longer a significant issue. Most of the problems have been resolved by the
prioritization of home state jurisdiction under Section 201; the exclusive,
continuing jurisdiction provisions of Section 202; and the prohibitions on
modification of Section 203. If there is a home State, there can be no exercise of
significant connection jurisdiction in an initial child custody determination and,
therefore, no simultaneous proceedings. If there is a State of exclusive, continuing
jurisdiction, there cannot be another State with concurrent jurisdiction and,
therefore, no simultaneous proceedings. Of course, the home State, as well as the
State with exclusive, continuing jurisdiction, could defer to another State under
Section 207. However, that decision is left entirely to the home State or the State
with exclusive, continuing jurisdiction.
Under this Act, the simultaneous proceedings problem will arise only when
there is no home State, no State with exclusive, continuing jurisdiction and more
than one significant connection State. For those cases, this section retains the "first
in time" rule of the UCCJA. Subsection (b) retains the UCCJA's policy favoring
judicial communication. Communication between courts is required when it is
determined that a proceeding has been commenced in another State.
Subsection (c) concerns the problem of simultaneous proceedings in the
State with modification jurisdiction and enforcement proceedings under Article 3.
This section authorizes the court with exclusive, continuing jurisdiction to stay the
modification proceeding pending the outcome of the enforcement proceeding, to
enjoin the parties from continuing with the enforcement proceeding, or to continue
the modification proceeding under such conditions as it determines are appropriate.
The court may wish to communicate with the enforcement court. However,
communication is not mandatory. Although the enforcement State is required by
the PKPA to enforce according to its terms a custody determination made
consistently with the PKPA, that duty is subject to the decree being modified by a
State with the power to do so under the PKPA. An order to enjoin the parties from
enforcing the decree is the equivalent of a temporary modification by a State with
the authority to do so. The concomitant provision addressed to the enforcement
court is Section 306 of this Act. That section requires the enforcement court to
communicate with the modification court in order to determine what action the
modification court wishes the enforcement court to take.
The term "pending" that was utilized in the UCCJA section on simultaneous
proceeding has been replaced. It has caused considerable confusion in the case law.
It has been replaced with the term "commencement of the proceeding" as more
accurately reflecting the policy behind this section. The latter term is defined in
Section 102(5).
SECTION 207. INCONVENIENT FORUM.
(a) A court of this State which has jurisdiction under this [Act] 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 State 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 State to exercise
jurisdiction. For this purpose, the court 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 State 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 State
that would assume jurisdiction;
(4) the relative financial circumstances of the parties;
(5) any agreement of the parties as to which State should assume
jurisdiction;
(6) the nature and location of the evidence required to resolve the
pending litigation, including testimony of the child;
(7) the ability of the court of each State to decide the issue expeditiously
and the procedures necessary to present the evidence; and
(8) the familiarity of the court of each State with the facts and issues in
the pending litigation.
(c) If a court of this State determines that it is an inconvenient forum and
that a court of another State is a more appropriate forum, it shall stay the
proceedings upon condition that a child-custody proceeding be promptly
commenced in another designated State and may impose any other condition the
court considers just and proper.
(d) A court of this State may decline to exercise its jurisdiction under this
[Act] if a child-custody determination is incidental to an action for divorce or
another proceeding while still retaining jurisdiction over the divorce or other
proceeding.
Comment
This section retains the focus of Section 7 of the UCCJA. It authorizes
courts to decide that another State is in a better position to make the custody
determination, taking into consideration the relative circumstances of the parties. If
so, the court may defer to the other State.
The list of factors that the court may consider has been updated from the
UCCJA. The list is not meant to be exclusive. Several provisions require
comment. Subparagraph (1) is concerned specifically with domestic violence and
other matters affecting the health and safety of the parties. For this purpose, the
court should determine whether the parties are located in different States because
one party is a victim of domestic violence or child abuse. If domestic violence or
child abuse has occurred, this factor authorizes the court to consider which State
can best protect the victim from further violence or abuse.
In applying subparagraph (3), courts should realize that distance concerns
can be alleviated by applying the communication and cooperation provisions of
Sections 111 and 112.
In applying subsection (7) on expeditious resolution of the controversy, the
court could consider the different procedural and evidentiary laws of the two States,
as well as the flexibility of the court dockets. It also should consider the ability of a
court to arrive at a solution to all the legal issues surrounding the family. If one
State has jurisdiction to decide both the custody and support issues, it would be
desirable to determine that State to be the most convenient forum. The same is true
when children of the same family live in different States. It would be inappropriate
to require parents to have custody proceedings in several States when one State
could resolve the custody of all the children.
Before determining whether to decline or retain jurisdiction, the court of
this State may communicate, in accordance with Section 110, with a court of
another State and exchange information pertinent to the assumption of jurisdiction
by either court.
There are two departures from Section 7 of the UCCJA. First, the court
may not simply dismiss the action. To do so would leave the case in limbo. Rather
the court shall stay the case and direct the parties to file in the State that has been
found to be the more convenient forum. The court is also authorized to impose any
other conditions it considers appropriate. This might include the issuance of
temporary custody orders during the time necessary to commence a proceeding in
the designated State, dismissing the case if the custody proceeding is not
commenced in the other State or resuming jurisdiction if a court of the other State
refuses to take the case.
Second, UCCJA, 7(g) which allowed the court to assess fees and costs if it
was a clearly inappropriate court, has been eliminated. If a court has jurisdiction
under this Act, it could not be a clearly inappropriate court.
SECTION 208. JURISDICTION DECLINED BY REASON OF
CONDUCT.
(a) Except as otherwise provided in Section 204 [or by other law of this
State], if a court of this State has jurisdiction under this [Act] because a person
seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court
shall decline to exercise its jurisdiction unless:
(1) the parents and all persons acting as parents have acquiesced in the
exercise of jurisdiction;
(2) a court of the State otherwise having jurisdiction under Sections 201
through 203 determines that this State is a more appropriate forum under Section
207; or
(3) no court of any other State would have jurisdiction under the criteria
specified in Sections 201 through 203.
(b) If a court of this State declines to exercise its jurisdiction pursuant to
subsection (a), it may fashion an appropriate remedy to ensure the safety of the
child and prevent a repetition of the unjustifiable conduct, including staying the
proceeding until a child-custody proceeding is commenced in a court having
jurisdiction under Sections 201 through 203.
(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 State unless authorized by law other than this [Act].
Comment
The "Clean Hands" section of the UCCJA has been truncated in this Act.
Since there is no longer a multiplicity of jurisdictions which could take cognizance
of a child-custody proceeding, there is less of a concern that one parent will take the
child to another jurisdiction in an attempt to find a more favorable forum. Most of
the jurisdictional problems generated by abducting parents should be solved by the
prioritization of home State in Section 201; the exclusive, continuing jurisdiction
provisions of Section 202; and the ban on modification in Section 203. For
example, if a parent takes the child from the home State and seeks an original
custody determination elsewhere, the stay-at-home parent has six months to file a
custody petition under the extended home state jurisdictional provision of Section
201, which will ensure that the case is retained in the home State. If a petitioner for
a modification determination takes the child from the State that issued the original
custody determination, another State cannot assume jurisdiction as long at the first
State exercises exclusive, continuing jurisdiction.
Nonetheless, there are still a number of cases where parents, or their
surrogates, act in a reprehensible manner, such as removing, secreting, retaining, or
restraining the child. This section ensures that abducting parents will not receive an
advantage for their unjustifiable conduct. If the conduct that creates the jurisdiction
is unjustified, courts must decline to exercise jurisdiction that is inappropriately
invoked by one of the parties. For example, if one parent abducts the child pre-
decree and establishes a new home State, that jurisdiction will decline to hear the
case. There are exceptions. If the other party has acquiesced in the court's
jurisdiction, the court may hear the case. Such acquiescence may occur by filing a
pleading submitting to the jurisdiction, or by not filing in the court that would
otherwise have jurisdiction under this Act. Similarly, if the court that would have
jurisdiction finds that the court of this State is a more appropriate forum, the court
may hear the case.
This section applies to those situations where jurisdiction exists because of
the unjustified conduct of the person seeking to invoke it. If, for example, a parent
in the State with exclusive, continuing jurisdiction under Section 202 has either
restrained the child from visiting with the other parent, or has retained the child
after visitation, and seeks to modify the decree, this section in inapplicable. The
conduct of restraining or retaining the child did not create jurisdiction. Jurisdiction
existed under this Act without regard to the parent's conduct. Whether a court
should decline to hear the parent's request to modify is a matter of local law.
The focus in this section is on the unjustified conduct of the person who
invokes the jurisdiction of the court. A technical illegality or wrong is insufficient
to trigger the applicability of this section. This is particularly important in cases
involving domestic violence and child abuse. Domestic violence victims should
not be charged with unjustifiable conduct for conduct that occurred in the process
of fleeing domestic violence, even if their conduct is technically illegal. Thus, if a
parent flees with a child to escape domestic violence and in the process violates a
joint custody decree, the case should not be automatically dismissed under this
section. An inquiry must be made into whether the flight was justified under the
circumstances of the case. However, an abusive parent who seizes the child and
flees to another State to establish jurisdiction has engaged in unjustifiable conduct
and the new State must decline to exercise jurisdiction under this section.
Subsection (b) authorizes the court to fashion an appropriate remedy for the
safety of the child and to prevent a repetition of the unjustified conduct. Thus, it
would be appropriate for the court to notify the other parent and to provide for
foster care for the child until the child is returned to the other parent. The court
could also stay the proceeding and require that a custody proceeding be instituted in
another State that would have jurisdiction under this Act. It should be noted that
the court is not making a forum non conveniens analysis in this section. If the
conduct is unjustifiable, it must decline jurisdiction. It may, however, retain
jurisdiction until a custody proceeding is commenced in the appropriate tribunal if
such retention is necessary to prevent a repetition of the wrongful conduct or to
ensure the safety of the child.
The attorney's fee standard for this section is patterned after the
International Child Abduction Remedies Act, 42 U.S.C. 11607(b)(3). The
assessed costs and fees are to be paid to the respondent who established that
jurisdiction was based on unjustifiable conduct.
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.
(b) If the information required by subsection (a) is not furnished, the court,
upon motion of a party or its own motion, may stay the proceeding until the
information is furnished.
(c) If the declaration as to any of the items described in subsection (a)(1)
through (3) is in the affirmative, the declarant shall give additional information
under oath as required by the court. The court may examine the parties under oath
as to details of the information furnished and other matters pertinent to the court's
jurisdiction and the disposition of the case.
(d) Each party has a continuing duty to inform the court of any proceeding
in this or any other State that could affect the current proceeding.
[(e) If a party 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 pleading requirements from Section 9 of the UCCJA are generally
carried over into this Act. However, the information is made subject to local law
on the protection of names and other 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
child-custody proceeding of the State requires their applicability. See, e.g.,
California Family Law Code 3409(a). If a State does not have local law that
provides for protecting names and addresses, then subsection (e) or a similar
provision should be adopted. Subsection (e) is based on the National Council of
Juvenile and Family Court Judge's, Model Code on Domestic and Family Violence
304(c). There are other models to choose from, in particular UIFSA 312.
In subsection (a)(2), the term "proceedings" should be read broadly to
include more than custody proceedings. Thus, if one parent was being criminally
prosecuted for child abuse or custodial interference, those proceedings should be
disclosed. If the child is subject to the Interstate Compact on the Placement of
Children, facts relating to compliance with the Compact should be disclosed in the
pleading or affidavit.
Subsection (b) has been added. It authorizes the court to stay the
proceeding until the information required in subsection (a) has been disclosed,
although failure to provide the information does not deprive the court of
jurisdiction to hear the case. This follows the majority of jurisdictions which held
that failure to comply with the pleading requirements of the UCCJA did not deprive
the court of jurisdiction to make a custody determination.
SECTION 210. APPEARANCE OF PARTIES AND CHILD.
(a) In a child-custody proceeding in this State, the court may order a party
to the proceeding who is in this State to appear before the court in person with or
without the child. The court may order any person who is in this State and who has
physical custody or control of the child to appear in person with the child.
(b) If a party to a child-custody proceeding whose presence is desired by
the court is outside this State, the court may order that a notice given pursuant to
Section 108 include a statement directing the party to appear in person with or
without the child and informing the party that failure to appear may result in a
decision adverse to the party.
(c) The court may enter any orders necessary to ensure the safety of the
child and of any person ordered to appear under this section.
(d) If a party to a child-custody proceeding who is outside this State is
directed to appear under subsection (b) or desires to appear personally before the
court with or without the child, the court may require another party to pay
reasonable and necessary travel and other expenses of the party so appearing and of
the child.
Comment
No major changes have been made to this section which was Section 11 of
the UCCJA. Language was added to subsection (a) to authorize the court to require
a non-party who has physical custody of the child to produce the child.
Subsection (c) authorizes the court to enter orders providing for the safety of
the child and the person ordered to appear with the child. If safety is a major
concern, the court, as an alternative to ordering a party to appear with the child,
could order and arrange for the party's testimony to be taken in another State under
Section 111. This alternative might be important when there are safety concerns
regarding requiring victims of domestic violence or child abuse to travel to the
jurisdiction where the abuser resides.
[ARTICLE] 3
ENFORCEMENT
SECTION 301. DEFINITIONS. In this [article]:
(1) "Petitioner" means a person who seeks enforcement of an order for
return of a child under the Hague Convention on the Civil Aspects of International
Child Abduction or enforcement of a child-custody determination.
(2) "Respondent" means a person against whom a proceeding has been
commenced for enforcement of an order for return of a child under the Hague
Convention on the Civil Aspects of International Child Abduction or enforcement
of a child-custody determination.
Comment
For purposes of this article, "petitioner" and "respondent" are defined. The
definitions clarify certain aspects of the notice and hearing sections.
SECTION 302. ENFORCEMENT UNDER HAGUE CONVENTION.
Under this [article] a court of this State may enforce an order for the return of the
child made under the Hague Convention on the Civil Aspects of International Child
Abduction as if it were a child-custody determination.
Comment
This section applies the enforcement remedies provided by this article to
orders requiring the return of a child issued under the authority of the International
Child Abduction Remedies Act (ICARA), 42 U.S.C. 11601 et seq., implementing
the Hague Convention on the Civil Aspects of International Child Abduction.
Specific mention of ICARA proceedings is necessary because they often occur
prior to any formal custody determination. However, the need for a speedy
enforcement remedy for an order to return the child is just as necessary.
SECTION 303. DUTY TO ENFORCE.
(a) A court of this State shall recognize and enforce a child-custody
determination of a court of another State if the latter court exercised jurisdiction in
substantial conformity with this [Act] or the determination was made under factual
circumstances meeting the jurisdictional standards of this [Act] and the
determination has not been modified in accordance with this [Act].
(b) A court of this State may utilize any remedy available under other law
of this State to enforce a child-custody determination made by a court of another
State. The remedies provided in this [article] are cumulative and do not affect the
availability of other remedies to enforce a child-custody determination.
Comment
This section is based on Section 13 of the UCCJA which contained the
basic duty to enforce. The language of the original section has been retained and
the duty to enforce is generally the same.
Enforcement of custody determinations of issuing States is also required by
federal law in the PKPA, 28 U.S.C. 1738A(a). The changes made in Article 2 of
this Act now make a State's duty to enforce and not modify a child custody
determination of another State consistent with the enforcement and
nonmodification provisions of the PKPA. Therefore custody determinations made
by a State pursuant to the UCCJA that would be enforceable under the PKPA will
generally be enforced under this Act. However, if a State custody determination
made pursuant to the UCCJA would not be enforceable under the PKPA, it will
also not be enforceable under this Act. Thus a custody determination made by a
"significant connection" jurisdiction when there is a home State is not enforceable
under the PKPA regardless of whether a proceeding was ever commenced in the
home State. Even though such a determination would be enforceable under the
UCCJA with its four concurrent bases of jurisdiction, it would not be enforceable
under this Act. This carries out the policy of the PKPA of strongly discouraging a
State from exercising its concurrent "significant connection" jurisdiction under the
UCCJA when another State could exercise "home state" jurisdiction.
This section also incorporates the concept of Section 15 of the UCCJA to
the effect that a custody determination of another State will be enforced in the same
manner as a custody determination made by a court of this State. Whatever
remedies are available to enforce a local determination can be utilized to enforce a
custody determination of another State. However, it remains a custody
determination of the State that issued it. A child-custody determination of another
State is not subject to modification unless the State would have jurisdiction to
modify the determination under Article 2.
The remedies provided by this article for the enforcement of a custody
determination will normally be used. This article does not detract from other
remedies available under other local law. There is often a need for a number of
remedies to ensure that a child-custody determination is obeyed. If other remedies
would easily facilitate enforcement, they are still available. The petitioner, for
example, can still cite the respondent for contempt of court or file a tort claim for
intentional interference with custodial relations if those remedies are available
under local law.
SECTION 304. TEMPORARY VISITATION.
(a) A court of this State which does not have jurisdiction to modify a child-
custody determination, may issue a temporary order enforcing:
(1) a visitation schedule made by a court of another State; or
(2) the visitation provisions of a child-custody determination of another
State that does not provide for a specific visitation schedule.
(b) If a court of this State makes an order under subsection (a)(2), it shall
specify in the order a period that it considers adequate to allow the petitioner to
obtain an order from a court having jurisdiction under the criteria specified in
[Article] 2. The order remains in effect until an order is obtained from the other
court or the period expires.
Comment
This section authorizes a court to issue a temporary order if it is necessary
to enforce visitation rights without violating the rules on nonmodification contained
in Section 303. Therefore, if there is a visitation schedule provided in the custody
determination that was made in accordance with Article 2, a court can issue an
order under this section implementing the schedule. An implementing order may
include make-up or substitute visitation.
A court may also issue a temporary order providing for visitation if
visitation was authorized in the custody determination, but no specific schedule was
included in the custody determination. Such an order could include a substitution
of a specific visitation schedule for "reasonable and seasonable."
However, a court may not, under subsection (a)(2) provide for a permanent
change in visitation. Therefore, requests for a permanent change in the visitation
schedule must be addressed to the court with exclusive, continuing jurisdiction
under Section 202 or modification jurisdiction under Section 203. As under
Section 204, subsection (b) of this section requires that the temporary visitation
order stay in effect only long enough to allow the person who obtained the order to
obtain a permanent modification in the State with appropriate jurisdiction under
Article 2.
SECTION 305. REGISTRATION OF CHILD-CUSTODY
DETERMINATION.
(a) A child-custody determination issued by a court of another State may be
registered in this State, with or without a simultaneous request for enforcement, by
sending to [the appropriate court] in this State:
(1) a letter or other document requesting registration;
(2) two copies, including one certified copy, of the determination sought
to be registered, and a statement under penalty of perjury that to the best of the
knowledge and belief of the person seeking registration the order has not been
modified; and
(3) except as otherwise provided in Section 209, the name and address
of the person seeking registration and any parent or person acting as a parent who
has been awarded custody or visitation in the child-custody determination sought to
be registered.
(b) On receipt of the documents required by subsection (a), the registering
court shall:
(1) cause the determination to be filed as a foreign judgment, together
with one copy of any accompanying documents and information, regardless of their
form; and
(2) serve notice upon the persons named pursuant to subsection (a)(3)
and provide them with an opportunity to contest the registration in accordance with
this section.
(c) The notice required by subsection (b)(2) must state that:
(1) a registered determination is enforceable as of the date of the
registration in the same manner as a determination issued by a court of this State;
(2) a hearing to contest the validity of the registered determination must
be requested within 20 days after service of notice; and
(3) failure to contest the registration will result in confirmation of the
child-custody determination and preclude further contest of that determination with
respect to any matter that could have been asserted.
(d) A person seeking to contest the validity of a registered order must
request a hearing within 20 days after service of the notice. At that hearing, the
court shall confirm the registered order unless the person contesting registration
establishes that:
(1) the issuing court did not have jurisdiction under [Article] 2;
(2) the child-custody determination sought to be registered has been
vacated, stayed, or modified by a court having jurisdiction to do so under [Article]
2; or
(3) the person contesting registration 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 registration is sought.
(e) 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.
(f) 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
This remainder of this article provides enforcement mechanisms for
interstate child custody determinations.
This section authorizes a simple registration procedure that can be used to
predetermine the enforceability of a custody determination. It parallels the process
in UIFSA for the registration of child support orders. It should be as much of an
aid to pro se litigants as the registration procedure of UIFSA.
A custody determination can be registered without any accompanying
request for enforcement. This may be of significant assistance in international
cases. For example, the custodial parent under a foreign custody order can receive
an advance determination of whether that order would be recognized and enforced
before sending the child to the United States for visitation. Article 26 of the 1996
Hague Convention on Jurisdiction, Applicable Law, Recognition and Cooperation
in Respect of Parental Responsibility and Measures for the Protection of Children,
35 I.L.M. 1391 (1996), requires those States which accede to the Convention to
provide such a procedure.
SECTION 306. ENFORCEMENT OF REGISTERED
DETERMINATION.
(a) A court of this State may grant any relief normally available under the
law of this State to enforce a registered child-custody determination made by a
court of another State.
(b) A court of this State shall recognize and enforce, but may not modify,
except in accordance with [Article] 2, a registered child-custody determination of a
court of another State.
Comment
A registered child-custody determination can be enforced as if it was a
child-custody determination of this State. However, it remains a custody
determination of the State that issued it. A registered custody order is not subject to
modification unless the State would have jurisdiction to modify the order under
Article 2.
SECTION 307. SIMULTANEOUS PROCEEDINGS. If a proceeding for
enforcement under this [article] is commenced in a court of this State and the court
determines that a proceeding to modify the determination is pending in a court of
another State having jurisdiction to modify the determination under [Article] 2, the
enforcing court shall immediately communicate with the modifying court. The
proceeding for enforcement continues unless the enforcing court, after consultation
with the modifying court, stays or dismisses the proceeding.
Comment
The pleading rules of Section 308, require the parties to disclose any
pending proceedings. Normally, an enforcement proceeding will take precedence
over a modification action since the PKPA requires enforcement of child custody
determinations made in accordance with its terms. However, the enforcement court
must communicate with the modification court in order to avoid duplicative
litigation. The courts might decide that the court with jurisdiction under Article 2
shall continue with the modification action and stay the enforcement proceeding.
Or they might decide that the enforcement proceeding shall go forward. The
ultimate decision rests with the court having exclusive, continuing jurisdiction
under Section 202, or if there is no State with exclusive, continuing jurisdiction,
then the decision rests with the State that would have jurisdiction to modify under
Section 203. Therefore, if that court determines that the enforcement proceeding
should be stayed or dismissed, the enforcement court should stay or dismiss the
proceeding. If the enforcement court does not do so, the court with exclusive,
continuing jurisdiction under Section 202, or with modification jurisdiction under
Section 203, could enjoin the parties from continuing with the enforcement
proceeding.
SECTION 308. EXPEDITED ENFORCEMENT OF CHILD-CUSTODY
DETERMINATION.
(a) A petition under this [article] must be verified. Certified copies of all
orders sought to be enforced and of any order confirming registration must be
attached to the petition. A copy of a certified copy of an order may be attached
instead of the original.
(b) A petition for enforcement of a child-custody determination must state:
(1) whether the court that issued the determination identified the
jurisdictional basis it relied upon in exercising jurisdiction and, if so, what the basis
was;
(2) whether the determination for which enforcement is sought has been
vacated, stayed, or modified by a court whose decision must be enforced under this
[Act] and, if so, identify the court, the case number, and the nature of the
proceeding;
(3) whether any proceeding has been commenced that could affect the
current proceeding, including 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;
(4) the present physical address of the child and the respondent, if
known;
(5) whether relief in addition to the immediate physical custody of the
child and attorney's fees is sought, including a request for assistance from [law
enforcement officials] and, if so, the relief sought; and
(6) if the child-custody determination has been registered and confirmed
under Section 305, the date and place of registration.
(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;
(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 having jurisdiction to do so under [Article] 2.
Comment
This section provides the normal remedy that will be used in interstate
cases: the production of the child in a summary, remedial process based on habeas
corpus.
The petition is intended to provide the court with as much information as
possible. Attaching certified copies of all orders sought to be enforced allows the
court to have the necessary information. Most of the information relates to the
permissible scope of the court's inquiry. The petitioner has the responsibility to
inform the court of all proceedings that would affect the current enforcement
action. Specific mention is made of certain proceedings to ensure that they are
disclosed. A "procedure relating to domestic violence" includes not only protective
order proceedings but also criminal prosecutions for child abuse or domestic
violence.
The order requires the respondent to appear at a hearing on the next judicial
day. The term "next judicial day" in this section means the next day when a judge
is at the courthouse. At the hearing, the court will order the child to be delivered to
the petitioner unless the respondent is prepared to assert that the issuing State
lacked jurisdiction, that notice was not given in accordance with Section 108, or
that the order sought to be enforced has been vacated, modified, or stayed by a
court with jurisdiction to do so under Article 2. The court is also to order payment
of the fees and expenses set out in Section 312. The court may set another hearing
to determine whether additional relief available under this state's law should be
granted.
If the order has been registered and confirmed in accordance with Section
304, the only defense to enforcement is that the order has been vacated, stayed or
modified since the registration proceeding by a court with jurisdiction to do so
under Article 2.
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 State], upon respondent and any person who
has physical custody of the child.
Comment
In keeping with other sections of this Act, the question of how the petition
and order should be served is left to local law.
SECTION 310. HEARING AND ORDER.
(a) Unless the court issues a temporary emergency order pursuant to
Section 204, upon a finding that a petitioner is entitled to immediate physical
custody of the child, the court shall order that the petitioner may take immediate
physical custody of the child unless the respondent 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 of a State 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 305 but has been vacated, stayed, or
modified by a court of a State having jurisdiction to do so under [Article] 2.
(b) The court shall award the fees, costs, and expenses authorized under
Section 312 and may grant additional relief, including a request for the assistance
of [law enforcement officials], and set a further hearing to determine whether
additional relief is appropriate.
(c) If a party called to testify refuses to answer on the ground that the
testimony may be self-incriminating, the court may draw an adverse inference from
the refusal.
(d) A privilege against disclosure of communications between spouses and
a defense of immunity based on the relationship of husband and wife or parent and
child may not be invoked in a proceeding under this [article].
Comment
The scope of inquiry for the enforcing court is quite limited. Federal law
requires the court to enforce the custody determination if the issuing state's decree
was rendered in compliance with the PKPA. 28 U.S.C. 1738A(a). This Act
requires enforcement of custody determinations that are made in conformity with
Article 2's jurisdictional rules.
The certified copy, or a copy of the certified copy, of the custody
determination entitling the petitioner to the child is prima facie evidence of the
issuing court's jurisdiction to enter the order. If the order is one that is entitled to
be enforced under Article 2 and if it has been violated, the burden shifts to the
respondent to show that the custody determination is not entitled to enforcement.
It is a defense to enforcement that another jurisdiction has issued a custody
determination that is required to be enforced under Article 2. An example is when
one court has based its original custody determination on the UCCJA 3(a)(2)
(significant connections) and another jurisdiction has rendered an original custody
determination based on the UCCJA 3(a)(1) (home State). When this occurs,
Article 2 of this Act, as well as the PKPA, mandate that the home state
determination be enforced in all other States, including the State that rendered the
significant connections determination.
Lack of notice in accordance with Section 108 by a person entitled to notice
and opportunity to be heard at the original custody determination is a defense to
enforcement of the custody determination. The scope of the defense under this Act
is the same as the defense would be under the law of the State that issued the
notice. Thus, if the defense of lack of notice would not be available under local law
if the respondent purposely hid from the petitioner, took deliberate steps to avoid
service of process or elected not to participate in the initial proceedings, the defense
would also not be available under this Act.
There are no other defenses to an enforcement action. If the child would be
endangered by the enforcement of a custody or visitation order, there may be a
basis for the assumption of emergency jurisdiction under Section 204 of this Act.
Upon the finding of an emergency, the court issues a temporary order and directs
the parties to proceed either in the court that is exercising continuing jurisdiction
over the custody proceeding under Section 202, or the court that would have
jurisdiction to modify the custody determination under Section 203.
The court shall determine at the hearing whether fees should be awarded
under Section 312. If so, it should order them paid. The court may determine if
additional relief is appropriate, including requesting law enforcement officers to
assist the petitioner in the enforcement of the order. The court may set a hearing to
determine whether further relief should be granted.
The remainder of this section is derived from UIFSA 316 with regard to
the privilege of self-incrimination, spousal privileges, and immunities. It is
included to keep parallel the procedures for child support and child custody
proceedings to the extent possible.
SECTION 311. WARRANT TO TAKE PHYSICAL CUSTODY OF
CHILD.
(a) Upon the filing of a petition seeking enforcement of a child-custody
determination, the petitioner may file a verified application for the issuance of a
warrant to take physical custody of the child if the child is immediately likely to
suffer serious physical harm or be removed from this State.
(b) If the court, upon the testimony of the petitioner or other witness, finds
that the child is imminently likely to suffer serious physical harm or be removed
from this State, it may issue a warrant to take physical custody of the child. The
petition 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. The application for the warrant must include the statements
required by Section 308(b).
(c) A warrant to take physical custody of a child must:
(1) recite the facts upon which a conclusion of imminent serious
physical harm or removal from the jurisdiction 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 final relief.
(d) The respondent must be served with the petition, 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 testimony of the petitioner or other
witness that a less intrusive remedy is not 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 section provides a remedy for emergency situations where there is a
reason to believe that the child will suffer imminent, serious physical harm or be
removed from the jurisdiction once the respondent learns that the petitioner has
filed an enforcement proceeding. If the court finds such harm exists, it should
temporarily waive the notice requirements and issue a warrant to take physical
custody of the child. Immediately after the warrant is executed, the respondent is to
receive notice of the proceedings.
The term "harm" cannot be totally defined and, as in the issuance of
temporary retraining orders, the appropriate issuance of a warrant is left to the
circumstances of the case. Those circumstances include cases where the respondent
is the subject of a criminal proceeding as well as situations where the respondent is
secreting the child in violation of a court order, abusing the child, a flight risk and
other circumstances that the court concludes make the issuance of notice a danger
to the child. The court must hear the testimony of the petitioner or another witness
prior to issuing the warrant. The testimony may be heard in person, via telephone,
or by any other means acceptable under local law. The court must State the reasons
for the issuance of the warrant. The warrant can be enforced by law enforcement
officers wherever the child is found in the State. The warrant may authorize entry
upon private property to pick up the child if no less intrusive means are possible. In
extraordinary cases, the warrant may authorize law enforcement to make a forcible
entry at any hour.
The warrant must provide for the placement of the child pending the
determination of the enforcement proceeding. Since the issuance of the warrant
would not occur absent a risk of serious harm to the child, placement cannot be
with the respondent. Normally, the child would be placed with the petitioner.
However, if placement with the petitioner is not indicated, the court can order any
other appropriate placement authorized under the laws of the court's State.
Placement with the petitioner may not be indicated if there is a likelihood that the
petitioner also will flee the jurisdiction. Placement with the petitioner may not be
practical if the petitioner is proceeding through an attorney and is not present before
the court.
This section authorizes the court to utilize whatever means are available
under local law to ensure the appearance of the petitioner and child at the
enforcement hearing. Such means might include cash bonds, a surrender of a
passport, or whatever the court determines is necessary.
SECTION 312. COSTS, FEES, AND EXPENSES.
(a) The court shall award the prevailing party, including a State, necessary
and reasonable expenses incurred by or on behalf of the party, 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 or expenses are sought establishes that the award
would be clearly inappropriate.
(b) The court may not assess fees, costs, or expenses against a State unless
authorized by law other than this [Act].
Comment
This section is derived from the International Child Abduction Remedies
Act, 42 U.S.C. 11607(b)(3). Normally the court will award fees and costs against
the non-prevailing party. Included as expenses are the amount of investigation fees
incurred by private persons or by public officials as well as the cost of child
placement during the proceedings.
The non-prevailing party has the burden of showing that such an award
would be clearly inappropriate. Fees and costs may be inappropriate if their
payment would cause the parent and child to seek public assistance.
This section implements the policies of Section 8(c) of Pub.L. 96-611 (part
of the PKPA) which provides that:
In furtherance of the purposes of section 1738A of title 28, United States Code
[this section], as added by subsection (a) of this section, State courts are
encouraged to
(2) award to the person entitled to custody or visitation pursuant to a custody
determination which is consistent with the provisions of such section 1738A
[this section], necessary travel expenses, attorneys' fees, costs of private
investigations, witness fees or expenses, and other expenses incurred in
connection with such custody determination ... .
The term "prevailing party" is not given a special definition for this Act.
Each State will apply its own standard.
Subsection (b) was added to ensure that this section would not apply to the
State unless otherwise authorized. The language is taken from UIFSA 313 (court
may assess costs against obligee or support enforcement agency only if allowed by
local law).
SECTION 313. RECOGNITION AND ENFORCEMENT. A court of this
State shall accord full faith and credit to an order issued by another State and
consistent with this [Act] which enforces a child-custody determination by a court
of another State unless the order has been vacated, stayed, or modified by a court
having jurisdiction to do so under [Article] 2.
Comment
The enforcement order, to be effective, must also be enforced by other
States. This section requires courts of this State to enforce and not modify
enforcement orders issued by other States when made consistently with the
provisions of this Act.
SECTION 314. APPEALS. An appeal may be taken from a final order in a
proceeding under this [article] in accordance with [expedited appellate procedures
in other civil cases]. Unless the court enters a temporary emergency order under
Section 204, the enforcing court may not stay an order enforcing a child-custody
determination pending appeal.
Comment
The order may be appealed as an expedited civil matter. An enforcement
order should not be stayed by the court. Provisions for a stay would defeat the
purpose of having a quick enforcement procedure. If there is a risk of serious
mistreatment or abuse to the child, a petition to assume emergency jurisdiction
must be filed under Section 204. This section leaves intact the possibility of
obtaining an extraordinary remedy such as mandamus or prohibition from an
appellate court to stay the court's enforcement action. In many States, it is not
possible to limit the constitutional authority of appellate courts to issue a stay.
However, unless the information before the appellate panel indicates that
emergency jurisdiction would be assumed under Section 204, there is no reason to
stay the enforcement of the order pending appeal.
SECTION 315. ROLE OF [PROSECUTOR OR PUBLIC OFFICIAL].
(a) In a case arising under this [Act] or involving the Hague Convention on
the Civil Aspects of International Child Abduction, the [prosecutor or other
appropriate public official] may take any lawful action, including resort to a
proceeding under this [article] or any other available civil proceeding to locate a
child, obtain the return of a child, or enforce a child-custody determination if there
is:
(1) an existing child-custody determination;
(2) a request to do so from a court in a pending child-custody
proceeding;
(3) a reasonable belief that a criminal statute has been violated; or
(4) a reasonable belief that the child has been wrongfully removed or
retained in violation of the Hague Convention on the Civil Aspects of International
Child Abduction.
(b) A [prosecutor or appropriate public official] acting under this section
acts on behalf of the court and may not represent any party.
Comment
Sections 315-317 are derived from the recommendations of the Obstacles
Study that urge a role for public authorities in civil enforcement of custody and
visitation determinations. One of the basic policies behind this approach is that, as
is the case with child support, the involvement of public authorities will encourage
the parties to abide by the terms of the court order. The prosecutor usually would
be the most appropriate public official to exercise authority under this section.
However, States may locate the authority described in the section in the most
appropriate public office for their governmental structure. The authority could be,
for example, the Friend of the Court Office or the Attorney General. If the parties
know that prosecutors and law enforcement officers are available to help secure the
return of a child, the parties may be deterred from interfering with the exercise of
rights established by court order.
The use of public authorities should provide a more effective method of
remedying violations of the custody determination. Most parties do not have the
resources to enforce a custody determination in another jurisdiction. The
availability of the prosecutor or other government official as an enforcement
agency will help ensure that remedies of this Act can be made available regardless
of income level. In addition, the prosecutor may have resources to draw on that are
unavailable to the average litigant.
The role of the public authorities should generally not begin until there is a
custody determination that is sought to be enforced. The Act does not authorize the
public authorities to be involved in the action leading up to the making of the
custody determination, except when requested by the court, when there is a
violation the Hague Convention on the Civil Aspects of International Child
Abduction, or when the person holding the child has violated a criminal statute.
This Act does not mandate that the public authorities be involved in all cases
referred to it. There is only so much time and money available for enforcement
proceedings. Therefore, the public authorities eventually will develop guidelines to
determine which cases will receive priority.
The use of civil procedures instead of, or in addition to, filing and
prosecuting criminal charges enlarges the prosecutor's options and may provide a
more economical and less disruptive means of solving problems of criminal
abduction and retention. With the use of criminal proceedings alone, the procedure
may be inadequate to ensure the return of the child. The civil options would permit
the prosecutor to resolve that recurring and often frustrating problem.
A concern was expressed about whether allowing the prosecutor to use civil
means as a method of settling a child abduction violated either DR 7-105(A) of the
Code of Professional Responsibility or Model Rule of Professional Responsibility
4.4. Both provisions either explicitly or implicitly disapprove of a lawyer
threatening criminal action to gain an advantage in a civil case. However, the
prohibition relates to threats that are solely to gain an advantage in a civil case. If
the prosecutor has a good faith reason for pursuing the criminal action, there is no
ethical violation. See Committee on Legal Ethics v. Printz, 416 S.E. 2d 720 (W.Va.
1992) (lawyer can threaten to press criminal charges against a client's former
employee unless employee made restitution).
It must be emphasized that the public authorities do not become involved in
the merits of the case. They are authorized only to locate the child and enforce the
custody determination. The public authority is authorized by this section to utilize
any civil proceeding to secure the enforcement of the custody determination. In
most jurisdictions, that would be a proceeding under this Act. If the prosecutor
proceeds pursuant to this Act, the prosecutor is subject to its provisions. There is
nothing in this Act that would prevent a State from authorizing the prosecutor or
other public official to use additional remedies beyond those provided in this Act.
The public authority does not represent any party to the custody
determination. It acts as a "friend of the court." Its role is to ensure that the
custody determination is enforced.
Sections 315-317 are limited to cases covered by this Act, i.e. interstate
cases. However, States may, if they wish, extend this part of the Act to intrastate
cases.
It should also be noted that the provisions of this section relate to the civil
enforcement of child custody determinations. Nothing in this section is meant to
detract from the ability of the prosecutor to use criminal provisions in child
abduction cases.
SECTION 316. ROLE OF [LAW ENFORCEMENT]. At the request of a
[prosecutor or other appropriate public official] acting under Section 315, a [law
enforcement officer] may take any lawful action reasonably necessary to locate a
child or a party and assist [a prosecutor or appropriate public official] with
responsibilities under Section 315.
Comment
This section authorizes law enforcement officials to assist in locating a child
and enforcing a custody determination when requested to do so by the public
authorities. It is to be read as an enabling provision. Whether law enforcement
officials have discretion in responding to a request by the prosecutor or other public
official is a matter of local law.
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.
Comment
One of the major problems of utilizing public officials to locate children and
enforce custody and visitation determinations is cost. This section authorizes the
prosecutor and law enforcement to recover costs against the non-prevailing party.
The use of the term "direct" indicates that overhead is not a recoverable cost. This
section cannot be used to recover the value of the time spent by the public
authorities' attorneys.
[ARTICLE] 4
MISCELLANEOUS PROVISIONS
SECTION 401. 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 402. SEVERABILITY CLAUSE. If any provision of this [Act]
or its application to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of this [Act] which can be given effect
without the invalid provision or application, and to this end the provisions of this
[Act] are severable.
SECTION 403. EFFECTIVE DATE. This [Act] takes effect ...............
SECTION 404. REPEALS. The following acts and parts of acts are hereby
repealed:
(1) The Uniform Child Custody Jurisdiction Act;
(2) ........................................
(3) ........................................
SECTION 405. TRANSITIONAL PROVISION. A motion or other request
for relief made in a child-custody proceeding or to enforce a child-custody
determination which was commenced before the effective date of this [Act] is
governed by the law in effect at the time the motion or other request was made.
Comment
A child custody proceeding will last throughout the minority of the child.
The commencement of a child custody proceeding prior to this Act does not mean
that jurisdiction will continued to be governed by prior law. The provisions of this
act apply if a motion to modify an existing determination is filed after the
enactment of this Act. A motion that is filed prior to enactment may be completed
under the rules in effect at the time the motion is filed.
Folkestad Fazekas Barrick & Patoile, P.C.
Douglas County Attorneys – Castle Rock Lawyers
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