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Custody anf Jurisdiction

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Custody anf Jurisdiction Powered By Docstoc
					U.S. Department of Justice
Office of Justice Programs
Office of Juvenile Justice and Delinquency Prevention




                                                                                                                     December 2001




The Uniform Child-Custody
                                                                                                 A Message From OJJDP
Jurisdiction and                                                                                 America is a society with a substan-
                                                                                                 tial divorce rate. Each year, more
Enforcement Act                                                                                  than 1,000,000 children in the United
                                                                                                 States are affected by the divorce of
                                                                                                 their parents, and of all children who
                                                                                                 are born to married parents this year,
Patricia M. Hoff                                                                                 half are likely to experience a divorce
                                                                                                 in their families before they reach
This Bulletin describes the Uniform Child-        The Act requires State courts to enforce       their 18th birthdays.
Custody Jurisdiction and Enforcement Act          valid child-custody and visitation determi-
(the UCCJEA),1 the most recent in a series        nations made by sister State courts. It also   America is also a highly mobile socie-
of laws designed to deter interstate pa-          establishes innovative interstate enforce-     ty. On the dissolution of family ties, it
rental kidnapping and promote uniform             ment procedures.                               is not uncommon that a parent, per-
                                                                                                 haps even both parents, may move
jurisdiction and enforcement provisions
                                                  The UCCJEA is intended as an improve-          out of the State in which the family
in interstate child-custody and visitation
                                                  ment over the UCCJA. It clarifies UCCJA        resided at the time of their separa-
cases. The Office of Juvenile Justice and                                                        tion. Thus, it is not surprising that
                                                  provisions that have received conflicting
Delinquency Prevention (OJJDP) is pub-                                                           courts in different States are becom-
                                                  interpretations in courts across the coun-
lishing this Bulletin to provide current in-                                                     ing involved in child-custody and visi-
                                                  try, codifies practices that have effective-
formation about the UCCJEA to legislators                                                        tation disputes concerning the same
                                                  ly reduced interstate conflict, conforms
in States considering its adoption and to                                                        children.
                                                  jurisdictional standards to those of the
parents and practitioners in States that
                                                  Federal Parental Kidnapping Prevention         The Uniform Child-Custody Jurisdic-
have already adopted the law. The Bulle-
                                                  Act (the PKPA)6 to ensure interstate en-       tion and Enforcement Act, which is
tin is not an official OJJDP endorsement
                                                  forceability of orders, and adds protec-       described in this Bulletin, has been
of the Act.
                                                  tions for victims of domestic violence who     proposed by the National Conference
The UCCJEA is a uniform State law that            move out of State for safe haven.              of Commissioners on Uniform State
was approved in 1997 by the National                                                             Laws. The proposed uniform State
                                                  The UCCJEA, however, is not a substan-         law is designed to deter interstate
Conference of Commissioners on Uniform
                                                  tive custody statute. It does not dictate      parental kidnapping and to promote
State Laws (NCCUSL) to replace its 1968
                                                  standards for making or modifying child-       uniform jurisdiction and enforcement
Uniform Child Custody Jurisdiction Act
                                                  custody and visitation decisions; instead,     provisions in interstate child-custody
(the UCCJA).2 NCCUSL drafts and propos-
es laws in areas where it believes uniform-       it determines which States’ courts have        and visitation cases. The Act has
ity is important, but the laws become             and should exercise jurisdiction to do so.     been enacted by 25 States and the
effective only upon adoption by State leg-        A court must have jurisdiction (i.e., the      District of Columbia and introduced
islatures. As of July 2001, 26 jurisdictions      power and authority to hear and decide a       into legislatures in several other
                                                  matter) before it can proceed to consider      States.
had adopted the UCCJEA,3 and it had been
introduced in 2000–01 in the legislatures         the merits of a case. The UCCJEA does not
                                                                                                 It is our hope that the information
of 10 others.4                                    apply to child support cases.                  provided in this Bulletin will assist
                                                                                                 those considering the adoption of
The UCCJEA governs State courts’ juris-                                                          this model law in their States.
diction to make and modify “child-custody         Legal Background
determinations,” a term that expressly            In a mobile society with a high rate of
includes custody and visitation orders.5          divorce, courts in different States (and
                                                  countries) often become involved in
child-custody and visitation disputes con-     child could choose the forum that would            Unresolved problems. Although the
cerning the same child. When families are      decide custody, parents had a legal incen-         UCCJA was a major improvement over
intact, children generally live in one or      tive to abduct children. For example, a            pre-1968 law governing jurisdiction in
more States with both parents. After a         parent could take a child to a State to            child-custody cases, some problems
family breakup, one parent may move with       which the child had no previous ties and           remained. The law did not eliminate the
a child to another State, often to pursue a    a court in that State could exercise juris-        possibility of two or more States having
job opportunity or a new relationship or       diction and make or modify a custody               concurrent jurisdiction (e.g., based on
to return to extended family. The other        determination. Abducting parents benefit-          home State and significant connection
parent may remain in the original State or     ed under this system, but their “seize and         jurisdiction), and the statute’s prohibition
move to another State. Additional moves        run”11 tactics exacted a heavy toll on chil-       against simultaneous proceedings was not
may occur over time, possibly to different     dren and the judicial system. Children’s           routinely effective in preventing courts
States, back to the family’s original State,   lives were disrupted, and judicial re-             in different States from exercising juris-
or out of the country.                         sources were squandered as courts in               diction and issuing conflicting custody
                                               numerous States often heard custody                orders. In addition, contrary to the restric-
Interstate and international moves involv-     cases regarding the same children.                 tive interpretation of emergency jurisdic-
ing children raise challenging legal ques-                                                        tion intended by the drafters, some judges
tions as to which State (or country) has       Given the interstate nature of the prob-
                                                                                                  used this basis of jurisdiction to provide
and should exercise jurisdiction to make       lem, an interstate solution was needed.
                                                                                                  permanent relief, rather than to temporar-
an initial child-custody determination or      NCCUSL responded in 1968 with the
                                                                                                  ily address an urgent problem until the
modify an existing custody order. Ques-        UCCJA, which governed the existence
                                                                                                  court with regular jurisdiction could act.
tions also arise as to whether a custody       and exercise of jurisdiction in initial child-
                                                                                                  Jurisdictional conflicts also continued in
determination made in one State (or coun-      custody determinations and cases involv-
                                                                                                  modification cases. For instance, when a
try) is enforceable in another State and, if   ing modification of existing orders. The
                                                                                                  child moved from his or her original home
so, what procedures are available to se-       law also required States to enforce and
                                                                                                  State and established a new home State,
cure enforcement.                              not modify sister States’ orders. The new
                                                                                                  courts in both States frequently asserted
                                               requirements were intended to remove
States and Congress have responded to                                                             jurisdiction to modify an existing order.
                                               parents’ legal incentive to abduct children
these issues by enacting laws (i.e., the                                                          This overlap often led to conflicting cus-
                                               in search of a friendly forum that would
UCCJA and the PKPA) that regulate courts’                                                         tody orders and uncertainty for children
                                               make an initial custody order or modify
jurisdiction to make and modify custody                                                           and parents.
                                               an existing order.
and visitation determinations and that                                                            Although the UCCJA obligated courts to
dictate the interstate effect such determi-    The UCCJA based jurisdiction on a child’s
                                                                                                  enforce and not modify custody orders of
nations are to be given in sister States.      close affiliation with a State. Specifically, it
                                                                                                  sister States, it did not provide enforce-
Other laws that affect child custody and       established four jurisdictional grounds:
                                                                                                  ment procedures to carry out this require-
visitation have also been enacted. In fact,                                                       ment. Litigants were left to discover local
                                               x Home State (reserved for the State in
it was this veritable alphabet soup of                                                            enforcement procedures on their own,
                                                 which the child has lived for at least 6
laws—the UCCJA, the PKPA, the Violence                                                            and such procedures varied considerably
                                                 months preceding commencement of
Against Women Act (the VAWA),7 the                                                                across the country (e.g., contempt pro-
Hague Convention on the Civil Aspects of         the action).
                                                                                                  ceedings, motions to enforce, motions to
International Child Abduction (the Hague       x Significant connection (exists when a
                                                                                                  grant full faith and credit, and habeas
Convention),8 and the International Child        State has substantial evidence about a
                                                                                                  corpus proceedings). The variety of State
Abduction Remedies Act (the ICARA)9—             child as a result of the child’s signifi-
                                                                                                  enforcement procedures delayed enforce-
that prompted NCCUSL in 1997 to draft an         cant connections to that State).
                                                                                                  ment (sometimes to the point of denying
improved child-custody jurisdiction and        x Emergency (governs situations such as            relief, as in the case of weekend visitation
enforcement statute. To understand the           abandonment or abuse that require                interference), added costs (due to multi-
new law, it is helpful to examine the legal      immediate protective action).                    state variations and practices), made out-
backdrop against which the UCCJEA was
                                               x Vacuum (applies when no other juris-             comes unpredictable, and sometimes al-
developed.
                                                 dictional basis exists).                         lowed local courts to modify out-of-State
                                                                                                  orders, contrary to the UCCJA’s intent.
The Uniform Child Custody                      Except in emergency cases, the UCCJA
Jurisdiction Act                               eliminated a child’s physical presence in a        In addition, States passed the UCCJA with
                                               State as grounds for exercising jurisdic-          variations in the language. For instance,
Overview. Before 1968, State courts                                                               four States omitted section 23, which
                                               tion. As a result, a court could no longer
throughout the United States could exer-                                                          extends the principles of the Act to cus-
                                               base jurisdiction solely on a child’s pres-
cise jurisdiction over a child-custody case                                                       tody orders made in other countries. The
                                               ence in the State, nor would a child’s
based on a child’s presence in the State.                                                         variety undermined the uniform interpre-
                                               absence from the State necessarily de-
Courts also freely modified sister States’                                                        tation and application of the law across
                                               prive the court of jurisdiction. Under the
orders because U.S. Supreme Court rul-                                                            the country and created loopholes that
                                               UCCJA’s extended home State rule, a left-
ings had never settled the question of                                                            led to the issuance of conflicting custody
                                               behind parent could petition for custody
whether the Full Faith and Credit clause of                                                       orders. (These and other problems with
                                               in the child’s home State even after an
the U.S. Constitution applied to custody                                                          the UCCJA were documented by the Ob-
                                               abduction. The UCCJA also required
decrees.10 This legal climate fostered child                                                      stacles to the Recovery and Return of
                                               States to enforce and not modify valid
abduction and forum shopping: Because                                                             Parentally Abducted Children Project,
                                               custody and visitation orders made by
parents with physical possession of a
                                               sister States.


                                                                      2
which was carried out by the American           (e.g., one may have home State and anoth-       State where they were abused and need
Bar Association Center on Children and          er significant connection jurisdiction), the    continuing protection in their new loca-
the Law pursuant to a cooperative agree-        PKPA gives priority to home State jurisdic-     tions, the VAWA provides, among other
ment with OJJDP.12) Although every State        tion. This priority is intended to limit jur-   things, for interstate enforcement of pro-
eventually enacted the UCCJA, the handful       isdiction in initial custody cases to one       tection orders. Custody provisions incor-
of States that were slow to do so became        State, the child’s home State. The PKPA’s       porated into protection orders, however,
magnets for forum-shopping parents.             home State priority is designed to prevent      are not governed by the VAWA.20 These
                                                a significant connection State from exer-       provisions are “custody determinations,”
The Parental Kidnapping                         cising jurisdiction over a matter when the      subject to the PKPA and State law govern-
Prevention Act                                  child who is the subject of the proceeding      ing jurisdiction in child-custody cases.
                                                has a “home State.”
To close existing gaps and bring greater                                                        Neither the PKPA nor the UCCJA explicitly
uniformity to interstate child-custody          Exclusive, continuing jurisdiction. Ex-         addresses the key concerns of domestic
practice, Congress in 1980 enacted the          clusive, continuing jurisdiction under the      violence victims who must litigate child
PKPA, which requires State courts to:           PKPA protects an original decree State’s        custody interstate. The UCCJEA, however,
                                                jurisdiction to modify its own order. This      addresses these concerns with a number
x Enforce and not modify (i.e., grant full      protection addresses an ambiguity in the        of provisions. For instance, it protects
  faith and credit to) custody and vis-         UCCJA’s modification section that some          against disclosure of a victim’s address,
  itation determinations made by sister         courts have interpreted as allowing a           expands emergency jurisdiction to cases
  States consistently with the PKPA,            child’s new home State to exercise modifi-      in which a parent or sibling is at risk, and
  unless the original State no longer           cation jurisdiction even when the decree        requires courts to consider family abuse
  has, or has declined to exercise,             State (i.e., the child’s former home State)     in their “inconvenient forum” analysis.
  jurisdiction.13                               could still exercise jurisdiction on signifi-
x Defer to the “exclusive, continuing                                                           The Hague Convention and the ICARA.
                                                cant connection grounds. Under the
  jurisdiction” (see below) of the de-                                                          The Hague Convention21 and the Federal
                                                PKPA, the original home State has exclu-
  cree State as long as that State exer-                                                        statute that implements it (the ICARA)22
                                                sive, continuing jurisdiction to modify its
  cised jurisdiction consistently with the                                                      deal with international wrongful removal
                                                own order to the exclusion of all other
  PKPA when it made its determination,                                                          and retention of children. The Hague Con-
                                                States, including the child’s new home
  has jurisdiction under its own law, and                                                       vention establishes administrative and
                                                State—assuming that the original home
  remains the residence of the child or                                                         judicial mechanisms to expedite the re-
                                                State has jurisdiction under State law
  any contestant.14 (“Contestant” is de-                                                        turn of children (usually to their country
                                                (e.g., significant connection) and that at
  fined as a person, including a parent,                                                        of habitual residence) who have been
                                                least one parent or the child continues to
  who claims a right to custody or visita-                                                      abducted or wrongfully retained and to
                                                live there. Moreover, every State, includ-
  tion rights with respect to a child.)                                                         facilitate the exercise of visitation across
                                                ing a significant connection State, must
                                                                                                international borders. Under the Hague
x Refrain from exercising jurisdiction          grant full faith and credit to the home
                                                                                                Convention, children who are wrongfully
  while another State is exercising juris-      State’s order.
                                                                                                removed from or retained in a contracting
  diction over a matter consistently with       Unresolved problems. The PKPA did not           State (i.e., a country that is party to the
  the PKPA.15                                   solve all of the problems it targeted, part-    Convention) are subject to prompt return.
x Ensure that the following persons are         ly because of some confusion about its          The UCCJEA specifically provides for the
  provided reasonable notice and oppor-         relationship to the UCCJA and the incon-        enforcement of Hague Convention return
  tunity to be heard: contestants, any          sistencies between the two laws and part-       orders and authorizes public officials to
  parent whose parental rights have not         ly because many lawyers and judges ig-          locate and secure the return of children
  been terminated, and any person who           nored the PKPA or were unaware of its           in Hague Convention cases. The UCCJEA
  has physical custody of the child.16          impact on UCCJA practice. These prob-           contains other provisions that clarify
                                                lems and inconsistencies are documented         when foreign custody determinations
State courts that exercise jurisdiction con-
                                                in the Obstacles Project Final Report.18        (from Hague and non-Hague countries) are
sistently with the criteria in the PKPA are
                                                                                                entitled to enforcement and when courts
entitled as a matter of Federal law to have
                                                Other Relevant Federal Laws                     in the United States must defer to the cus-
their custody and visitation orders given
                                                                                                tody jurisdiction of a foreign court.
full faith and credit in sister States. These   Some laws enacted after the UCCJA added
courts also have exclusive, continuing          a Federal dimension to interstate and in-
jurisdiction to modify their own orders         ternational child-custody practices that        Rationale Underlying
under circumstances stipulated in the law.      was unforeseen by the drafters of the
                                                UCCJA in 1968 (but which was considered
                                                                                                the UCCJEA
The PKPA’s jurisdictional criteria resemble     by drafters of the UCCJEA in 1997). In          Custody contestants have sometimes
those of the UCCJA, but there are signifi-      addition to the PKPA, these Federal laws        exploited jurisdictional ambiguities to
cant differences. PKPA jurisdictional provi-    include the Full Faith and Credit provi-        draw out litigation, secure conflicting cus-
sions are discussed in the sections that        sions of the VAWA, enacted in 1994; the         tody orders, and delay (or deny) enforce-
follow.                                         Hague Convention, ratified in 1986; and         ment of valid custody and visitation or-
Home State priority. The PKPA prioritizes       the ICARA, enacted in 1988.19                   ders. In these instances, resources that
home State jurisdiction in initial custody                                                      could have been used to help children
                                                The VAWA. In recognition of the fact that       were instead spent on multistate litigation.
cases.17 Whereas two States may have            domestic violence victims often leave the
jurisdiction over a case under the UCCJA


                                                                      3
Eliminating such contentious multistate         not be charged with simple kidnapping               exercising jurisdiction. Such jurisdic-
litigation of custody is one of the stated      under Louisiana law (and thus should not            tion continues until the child, his or
purposes23 of the UCCJA, which is intend-       be extradited) because he was the lawful            her parents, and any person acting as
ed to:                                          custodian of the children pursuant to a             the child’s parent move away from the
                                                California custody order that was entitled          decree State.28
   (1) avoid jurisdictional competition
                                                under the PKPA to full faith and credit in       x Authorizes courts to exercise emer-
   and conflict with courts of other
                                                Louisiana. The Supreme Court, however,             gency jurisdiction in cases involving
   states in matters of child custody
                                                held that under the Uniform Criminal Ex-           family abuse and limits the relief avail-
   which have in the past resulted in
                                                tradition Act, 18 U.S.C. § 3182, the place         able in emergency cases to temporary
   the shifting of children from state to
                                                for the father to assert his defenses to the       custody orders.29
   state with harmful effects on their
                                                criminal charge (however meritorious)
   well-being . . . [and] (4) discourage                                                         x Revamps the rules governing inconven-
                                                was Louisiana, not California.
   continuing controversies over child                                                             ient forum analysis, requiring courts to
   custody in the interest of greater           The UCCJEA’s enforcement mechanisms                consider specified factors.30
   stability of home environment and            authorize public officials to assist in expe-
                                                                                                 x Directs courts to decline jurisdiction
   of secure family relationships for           dited enforcement proceedings and allow
                                                                                                   created by unjustifiable conduct.31
   the child.                                   for an abbreviated, court-assisted registra-
                                                tion process. In doing so, these mecha-
Parents bent on “winning” an interstate
                                                nisms should considerably reduce self-           Enforcement: Article 3
custody case (or ensuring that the other                                                         The UCCJEA also establishes uniform pro-
                                                help recoveries, which can be emotionally
parent “loses”) sometimes employ tactics                                                         cedures for interstate enforcement of child-
                                                and physically injurious to children and
that may hurt children in the process.                                                           custody and visitation determinations.
                                                legally problematic for parents.
Ironically, some parents lose sight of their
children when fighting for the right to                                                          In particular, article 3 of the UCCJEA:
keep them. In a particularly egregious          UCCJEA Highlights                                x Authorizes temporary enforcement of
case,24 for example, after 3 years of litiga-
                                                This section provides a brief overview             visitation determinations.32
tion in Indiana that should have resulted
                                                of the UCCJEA’s jurisdiction and enforce-        x Creates an interstate registration
in a child’s immediate return to her moth-
                                                ment provisions. The cases to which the            process for out-of-State custody
er (pursuant to an Indiana order enforcing
                                                UCCJEA applies and the law’s jurisdic-             determinations.33
a Hawaiian order), a juvenile court inter-
                                                tion and enforcement provisions are de-
vened at the last minute and ordered the                                                         x Establishes a procedure for speedy
                                                scribed in detail in the next sections of
child detained for a mental examination.                                                           interstate enforcement of custody and
                                                this Bulletin.
The father’s attorney had orchestrated a                                                           visitation determinations.34
CHINS (Child In Need of Services) pro-
ceeding in juvenile court to prevent the        Jurisdiction: Articles 1 and 2                   x Authorizes issuance of warrants direct-
child’s return to her mother. The case          The UCCJEA is a complete replacement               ing law enforcement to pick up children
remains a strong reminder of the need for       for the UCCJA. Articles 1 and 2 of the             at risk of being removed from the
a custody jurisdiction statute that clearly     UCCJEA contain jurisdictional rules that           State.35
specifies the proceedings to which it ap-       essentially bring the UCCJA into conformi-       x Authorizes public officials to assist in
plies, restricts the use of emergency juris-    ty with the PKPA. Modeling the UCCJEA’s            the civil enforcement of custody deter-
diction, and establishes enforcement pro-       jurisdictional standards on the PKPA’s             minations and in Hague Convention
cedures that are expeditious, sure, and         standards is intended to produce custody           cases.36
predictable. The UCCJEA accomplishes            determinations that are entitled under
these objectives.                               Federal law to full faith and credit in sister
                                                States. The UCCJEA also addresses the
                                                                                                 Applicability of the
Protracted custody litigation and conflict-     practice and interpretation problems de-         UCCJEA
ing orders not only undermine a child’s         scribed earlier in this Bulletin and brings
sense of stability; they also raise the pos-    the law into harmony with the VAWA and           Covered Proceedings
sibility of criminal liability for either or    the Hague Convention.                            The UCCJEA applies to a variety of pro-
both of the child’s parents, who may face
                                                                                                 ceedings.37 Specifically, courts in UCCJEA
charges in one State when complying with        Under articles 1 and 2, the UCCJEA,
                                                                                                 States must comply with the statute when
the order of another. California v. Superior    among other things:
                                                                                                 custody and visitation issues arise in
Court of California, San Bernardino County
                                                x Applies to a range of proceedings in           proceedings for divorce, separation, ne-
(Smolin et al.),25 exemplifies this predica-
ment. In this case, the U.S. Supreme Court        which custody or visitation is at              glect, abuse, dependency, guardianship,
refused to block a California father’s extra-     issue.26                                       paternity, termination of parental rights,
                                                x Grants priority to home State                  and protection from domestic violence.
dition to Louisiana, where he was charged
                                                  jurisdiction.27                                The UCCJEA does not apply to child sup-
with simple kidnapping. The criminal
                                                                                                 port proceedings38 or adoption cases.39
charges stemmed from the father’s “self-        x Preserves exclusive, continuing juris-         Identifying the specific proceedings to
help” recovery of his children from Lou-          diction in the decree State if that State      which the UCCJEA is applicable clarifies
isiana, where they had moved with their           determines that it has a basis for
mother. The father argued that he could




                                                                      4
when courts must conform to the UCCJEA,          Jurisdictional                                 commenced) or if it is located in the State
which should minimize the likelihood that                                                       that was the child’s home State within 6
more than one State will take jurisdiction       Provisions of the                              months of the proceedings’ commence-
over the same matter.                            UCCJEA                                         ment and the child’s parent (or a person
                                                 There are two requirements under the           acting as his or her parent) continues to
Initial and Modification                         UCCJEA for making or modifying a cus-          live in the State even after the child has
Determinations                                   tody determination: (1) the court must         been removed. This extended home State
                                                 have a basis of jurisdiction under the Act     rule allows a left-behind parent to com-
The UCCJEA governs courts’ jurisdiction                                                         mence a custody proceeding within 6
to issue permanent, temporary,40 initial,        (i.e., subject-matter jurisdiction), and
                                                 (2) the parties must be given notice and       months of a child’s removal from the
and modification orders. The rules that                                                         home State.
govern courts’ jurisdiction to make an ini-      opportunity to be heard. Personal jurisdic-
tial custody determination differ from           tion over a party or child—based on phys-      Example. A 2-year-old child, born and
those governing jurisdiction to modify an        ical presence in or minimum contacts with      raised in Minnesota, is abducted by his
existing order. The type of custody pro-         the State—is not required. Moreover, a         mother before either parent has filed for
ceeding determines which rules apply and         court that has personal jurisdiction over a    custody. The boy and his mother move to
whether a court has the authority to act.        party or child cannot adjudicate custody       Idaho. The left-behind father may file for
                                                 unless it has a basis for exercising juris-    an initial custody determination in Min-
                                                 diction under the Act.44                       nesota (which has home State jurisdiction)
Foreign Custody Orders and
Proceedings                                      The UCCJEA’s jurisdictional provisions         within 6 months of the child’s removal.
                                                 vary, based on whether a case involves an      The child’s absence from Minnesota does
The UCCJEA requires State courts to rec-                                                        not deprive the State of jurisdiction. If the
                                                 initial custody or visitation determination
ognize and enforce custody determina-                                                           mother commences a custody proceeding
                                                 or modification of an existing order. This
tions made by foreign courts under factual                                                      in Idaho while Minnesota is the child’s
                                                 section describes the UCCJEA’s jurisdic-
circumstances that substantially conform                                                        home State under the UCCJEA, the father
                                                 tional provisions and provides examples
with the UCCJEA’s jurisdictional standards                                                      can seek dismissal of the Idaho proceed-
                                                 that illustrate the intended effect of many
and to defer to foreign courts as if they                                                       ing based on lack of jurisdiction. Assum-
                                                 of these provisions. It also describes two
were State courts.41 However, State courts                                                      ing the notice requirements of section 108
                                                 grounds on which courts may decline to
need not apply the Act (i.e., enforce a for-                                                    are met, any order the father obtains in
                                                 exercise jurisdiction under the UCCJEA
eign court order or defer to a foreign                                                          Minnesota is entitled to enforcement in
                                                 and includes examples of each.
court’s jurisdiction) if the child-custody                                                      Idaho.
law of the foreign country violates funda-
mental principles of human rights. This          Initial Jurisdiction                           Significant connection jurisdiction.45
language is derived from article 20 of           The UCCJEA establishes four bases for          When a child has no home State or when
the Hague Convention. According to the           initial jurisdiction—home State, significant   a home State declines jurisdiction,46 an-
U.S. Department of State’s legal analysis        connection, more appropriate forum, and        other State court may exercise jurisdic-
of the Convention, the “human rights/            vacuum jurisdiction. It also authorizes        tion if the child has sufficient ties to the
fundamental freedoms” defense to return          courts to issue temporary relief on emer-      State and substantial evidence concerning
may be invoked “on the rare occasion that        gency grounds. These jurisdictional bases      the child is available in the State. A child
return of a child would utterly shock the        are discussed in the sections that follow.     need not be physically present in a State
conscience of the court or offend all                                                           for the State to exercise significant connec-
notions of due process.”42                       Home State jurisdiction. The UCCJEA            tion jurisdiction. More than one State may
                                                 gives home State jurisdiction priority in      have jurisdiction on this basis, but only
                                                 initial child-custody proceedings. In doing    one State may exercise jurisdiction.47 The
Tribal Court Orders and                          so, the Act conforms to the PKPA and
Proceedings                                                                                     statute resolves the conflict in favor of the
                                                 rejects the UCCJA’s coequal treatment of       first-filed proceeding. However, the courts
The UCCJEA does not apply to custody             home State and significant connection          are required to communicate, and the
proceedings concerning American Indian           jurisdiction. Only in cases in which a child   court in the State of the first-filed proceed-
children to the extent that such proceed-        has no home State or the home State de-        ing may defer to the court in the second
ings are governed by the Indian Child            clines jurisdiction may another court exer-    State following judicial communication.48
Welfare Act, 25 U.S.C. § 1901 et seq.43 Child-   cise significant connection jurisdiction.
custody proceedings in State courts that         This change is intended to significantly       Example. A father and his child go to visit
involve tribal-State jurisdictional disputes     reduce the number of situations in which       the child’s paternal grandparents in Colo-
are subject to the UCCJEA only if the State      more than one State has jurisdiction over      rado. The father is reminded of the beauty
has enacted optional sections 104(b) and         a child-custody matter. In turn, the inci-     of the mountains and decides not to re-
(c) of the UCCJEA, which require State           dence of conflicting custody orders being      turn to Iowa, where his marriage had
courts to treat tribes as if they were States    issued by courts in different States should    been faltering and his job prospects have
and tribal court custody proceedings as          also decrease.                                 dimmed. The family had been living in
if they were court proceedings of sister                                                        Iowa for 4 years. Within 2 months of his
States and to enforce tribal court custody       Under the UCCJEA, a court has home State       arrival in Colorado, the father files for
orders.                                          jurisdiction if it is located in the child’s   custody there on significant connection
                                                 home State (as of the date proceedings are     grounds. The Colorado court lacks juris-
                                                                                                diction and may not proceed to the merits



                                                                      5
of the case unless Iowa, the child’s home       involving frequent overtime, many of the        Notice and opportunity to be heard must
State, declines jurisdiction in favor of Col-   girl’s weekend visits are spent at the          be given54 for a temporary emergency
orado. However, if the mother does not          homes of friends in her mother’s neigh-         order to be enforceable in other States
commence a custody proceeding in Iowa           borhood. Both sets of the child’s grand-        pursuant to the UCCJEA and PKPA. At a
within 6 months of the child’s removal,         parents live in Maryland. The father plans      minimum, both laws require that notice be
Colorado becomes the child’s home State         to move to Maryland at the end of the           provided to any parent whose parental
and the Colorado court may then exercise        school year so the child can go to her          rights have not been terminated and to
jurisdiction and decide custody.                grandparents after school, and he has a         any person with physical custody of the
                                                contract to purchase a house in Maryland        child. Temporary custody or visitation
Example. A mother and father are high-
                                                when the school year ends. However,             provisions in a protection order that was
tech professionals who have moved fre-
                                                before the move, the father becomes             obtained ex parte (i.e., without notice) are
quently during the previous several years
                                                increasingly concerned about the moth-          unenforceable in sister States under the
to work for Internet companies. After 4
                                                er’s absence during the child’s visits. He      UCCJEA and the PKPA. These provisions,
months in California, the father leaves the
                                                files for custody in Maryland. Based on         however, may be enforceable within the
mother and their infant and returns to
                                                these facts, it is conceivable that courts in   issuing State if domestic violence laws or
North Carolina, where the family had lived
                                                the District of Columbia (the child’s home      other laws so provide.
for 5 months preceding their move to Cal-
                                                State) and West Virginia (a significant con-
ifornia. The infant has been in daycare                                                         The duration of a temporary emergency
                                                nection State) might decline jurisdiction in
and has pediatricians and relatives in                                                          custody order depends on whether cus-
                                                favor of Maryland, the child’s soon-to-be
both States. The father’s cross-country                                                         tody has been or is being litigated else-
                                                home State. A decision to decline jurisdic-
move prompts the couple to assess the                                                           where. If there is no prior custody order
                                                tion is discretionary and fact dependent.
viability of their marriage, and they decide                                                    that is enforceable under the UCCJEA and
to divorce. However, they cannot agree on       Vacuum jurisdiction. Similar to the             no proceeding has been commenced in a
custody, and the mother and father simul-       UCCJA, the UCCJEA provides that if no           court with jurisdiction, the temporary
taneously commence separate custody             court has home State, significant connec-       emergency custody order becomes a final
proceedings in California and North Car-        tion, or more appropriate forum jurisdic-       determination (if it so provides) when
olina. The parents have not lived in any        tion, an alternate court may fill the vacu-     the issuing State becomes the child’s
State long enough for their child to have       um and exercise jurisdiction over an            home State (i.e., in 6 months). Notice
established a home State. Both California       initial custody proceeding.52 This provi-       must have been given in accordance with
and North Carolina arguably have signifi-       sion would apply to situations in which         the UCCJEA. If a previous order exists
cant connection jurisdiction, but under         children fail to remain in any State long       and/or a custody proceeding has been
the UCCJEA only one of them should exer-        enough to form attachments (e.g., home-         commenced in a court with jurisdiction,
cise it. If a court learns from the required    less children, children of migrant workers      the temporary emergency custody order
pleadings49 that a proceeding has been          or military personnel, or children sent         must specify an adequate period within
commenced in a sister State, the court is       from relative to relative for temporary         which the person seeking emergency re-
required by the UCCJEA to stay its pro-         care).                                          lief may obtain a custody order from the
ceeding and communicate with the other                                                          other court. The temporary order remains
court50 to decide which proceeding should       Temporary emergency jurisdiction.
                                                                                                in effect until a custody order is obtained
continue. If they cannot agree, the court       Under the UCCJEA, courts have tempo-
                                                                                                from the other State (within the specified
with the first-filed case may move forward      rary emergency jurisdiction when a child
                                                                                                period) or the specified period expires.
and the other court should dismiss its          in the State has been abandoned or when
proceeding.                                     emergency protection is necessary be-           Example. Following a fight with her hus-
                                                cause a child—or a sibling or parent of         band, a battered wife takes the couple’s
More appropriate forum jurisdiction.            the child—has been subjected to or is           child from their Texas home to Utah and
Under the UCCJEA, a third basis for initial     threatened with mistreatment or abuse.53        seeks refuge at a domestic violence shel-
jurisdiction exists when both the home          The UCCJEA narrows the UCCJA’s defini-          ter. In Utah, the mother files for custody
State and significant connection State(s)       tion of “emergency” by excluding neglect        of the child on emergency jurisdiction
decline jurisdiction in favor of another,       cases—thus bringing it into conformity          grounds. She gives her husband the requi-
more appropriate State on grounds of            with the PKPA—while expanding the defi-         site notice, but in the interest of safety,
inconvenient forum or unjustifiable             nition to cover emergencies that put a          asks the court not to disclose her ad-
conduct.51                                      child’s parent or sibling at risk, such as      dress to him.55 The child’s father does not
                                                those covered by the VAWA.                      respond to the suit. The court in Utah
Example. The parents of a 10-year-old girl
                                                                                                grants the mother temporary custody,
are separated but have not filed for cus-       Under the UCCJEA, courts may exercise           stipulating that the order will become per-
tody. Pursuant to her parents’ informal         emergency jurisdiction and make tempo-          manent after 6 months if no proceeding is
agreement, the girl remains with the fa-        rary orders even if a proceeding has been       commenced in Texas, the child’s home
ther in the District of Columbia, where she     commenced in another State. Immediate           State. The father, however, commences a
goes to school. She spends the majority of      judicial communication is mandatory to          custody proceeding in Texas soon after
her time with a housekeeper because her         resolve the emergency, protect the safety       receiving notice of the Utah action. The
father is frequently out of town on busi-       of the parties and the child, and deter-        mother receives notice of the proceeding
ness. The child spends one weekend a            mine how long a temporary order should          via her attorney, and she petitions the
month in West Virginia with her mother.         remain in effect.                               Texas court to decline jurisdiction in favor
Because the mother works a night shift
                                                                                                of Utah on inconvenient forum grounds.



                                                                     6
The two courts communicate. The Texas         State and new home State both assert           Unjustifiable conduct. Subject to specific
court grants the mother’s motion on find-     modification jurisdiction, which is likely     exceptions,60 section 208 of the UCCJEA
ing that domestic violence has occurred       to result in conflicting custody orders and    requires a court to decline jurisdiction if
and is likely to continue and that Utah can   confusion as to which order takes prec-        such jurisdiction was created by the un-
best protect the mother and child.56 Fol-     edence.59 Conflicting orders have also         justifiable conduct of the party bringing
lowing a hearing on the merits in the Utah    caused many law enforcement officers to        the action. Furthermore, the Act requires
court, the temporary Utah order is made       refuse help in enforcing an order because      the court to assess the wrongdoer neces-
permanent. The mother is granted cus-         of uncertainty as to its validity.             sary and reasonable expenses61 unless
tody, and the father is granted limited,                                                     that party can prove that the assessment
                                              Example. Following proceedings in Kansas
supervised visitation.                                                                       would be clearly inappropriate. Although
                                              (the child’s home State), the child’s father   the statute does not define “unjustifiable
                                              is granted custody. The mother moves to
Modification Jurisdiction                                                                    conduct,” examples cited in the accompa-
                                              Oklahoma, where the child spends extend-       nying comment to section 208 include
The UCCJEA addresses courts’ jurisdic-        ed visits over summers and holidays. Two       wrongful removal, retention, or conceal-
tion to modify existing child-custody or      years later, when the child reaches school     ment of a child.
visitation determinations in two comple-      age, the mother refuses to return the child
mentary sections: section 202 establishes     to Kansas at the end of the summer and         Questions may arise as to how this sec-
rules of continuing jurisdiction in the       enrolls the child in an elementary school      tion of the UCCJEA operates in domestic
decree-granting State, and section 203        in Oklahoma. She also files an action in       violence situations. The comment to sec-
governs when another State may modify         Oklahoma to modify the Kansas order,           tion 208 explains that if a parent flees with
an existing decree.                           seeking full custody of the child. The fa-     a child to escape domestic violence and
                                              ther challenges the Oklahoma court’s ju-       in the process violates a joint custody de-
Exclusive, continuing jurisdiction. The
                                              risdiction and moves to dismiss the suit       cree, that parent’s case should not auto-
UCCJEA adopted a rule of exclusive, con-
                                              on grounds that Kansas has exclusive,          matically be dismissed. Instead, an in-
tinuing jurisdiction similar to that in the
                                              continuing jurisdiction. He also seeks         quiry must be made into whether the
PKPA.57 Under the UCCJEA, an original
                                              return of the child pursuant to the Kansas     flight was justified under the circum-
decree court that exercised jurisdiction
                                              order. The father prevails based on the        stances. The comment goes on to distin-
consistent with the Act has exclusive, con-
                                              UCCJEA and the PKPA. Both statutes             guish the case of an abusive parent who
tinuing jurisdiction to modify its decree
                                              require enforcement of valid orders, and       seizes a child and flees to another State to
until one of the following occurs:
                                              the validity of the Kansas order was un-       establish jurisdiction. In this case, he or
x The original decree court loses signifi-    contested. Oklahoma could not modify           she has engaged in unjustifiable conduct
  cant connection jurisdiction.               the Kansas order because Kansas had            and the new State must decline to exer-
                                              exclusive modification jurisdiction.           cise jurisdiction.
x The child, the child’s parents, and any
  person acting as the child’s parent no                                                     Example. Without warning, a father
  longer live in the State.                   Declining Jurisdiction                         snatches his son from a school bus stop
Only the decree State may determine           Under the UCCJEA, a court with initial         in Arizona. He takes the child to Oregon
whether it has significant connection ju-     jurisdiction; exclusive, continuing juris-     and keeps their location hidden from the
risdiction. That is, a sister State’s court   diction; or modification jurisdiction may      left-behind mother for 10 months. The
may not substitute its judgment on this       decline to exercise jurisdiction on two        boy’s mother mistakenly believes that she
issue for that of the decree State’s court.   grounds: inconvenient forum and unjus-         cannot file for custody in Arizona (the
By contrast, either State court may deter-    tifiable conduct.                              child’s home State) because the child is
mine that all parties identified in the                                                      no longer physically present there. (Had
                                              Inconvenient forum. Under section 207 of
statute have left the State.                                                                 she consulted a knowledgeable lawyer,
                                              the UCCJEA, a court may, after taking into
                                                                                             she would have known that the child’s
Jurisdiction to modify determination.         account specified factors, determine that
                                                                                             absence from Arizona did not deprive the
If an original decree State has exclusive,    another State is better able to decide cus-
                                                                                             home State of jurisdiction as long as a
continuing jurisdiction, no other State       tody. These factors include whether do-
                                                                                             custody action was commenced within
may modify the decree State’s custody         mestic violence has occurred and, if so,
                                                                                             6 months of the boy’s departure.) The
order—even if the child moves and estab-      which State can best protect the parties
                                                                                             father waits 16 months before filing for an
lishes a new home State. (In such a sce-      and child; how long the child has lived out
                                                                                             initial custody order in Oregon and gives
nario, the noncustodial parent usually        of State; where the evidence is located;
                                                                                             the mother notice of the proceeding. She
remains in the original decree State.) A      and which court is most familiar with the
                                                                                             promptly files a motion to dismiss on
court in the child’s new home State (or       case.
                                                                                             grounds that the father’s conduct was
any other State) cannot modify the initial    Example. In the Kansas-Oklahoma example        unjustifiable. The court agrees, and it
decree unless the original decree State       described above, the mother could peti-        declines jurisdiction, dismisses the peti-
loses exclusive, continuing jurisdiction or   tion the Kansas court to decline jurisdic-     tion, and orders the father to pay the
declines to exercise it on inconvenient       tion on grounds of inconvenient forum.         mother’s attorney’s fees and investigative
forum grounds, and then only if the child’s   However, the decision would be at the          costs. The mother then commences a cus-
new home State has jurisdiction under the     court’s discretion, and the fact that the      tody action in an Arizona court, which
UCCJEA.58 These requirements are intend-      mother wrongfully withheld the child in        exercises jurisdiction on significant con-
ed to eliminate the practice under the        Oklahoma might weigh heavily in the            nection grounds, the home State having
UCCJA in which a child’s original home        court’s decision.                              declined its jurisdiction. The mother can



                                                                   7
then seek enforcement of the Oregon or-        The process for registering out-of-State       physical harm or abduction, this remedy
der in Arizona, using any of the enforce-      custody determinations is straightfor-         may be used in concert with a warrant to
ment procedures in the UCCJEA or other         ward. A party sends a request for registra-    take physical custody of a child (UCCJEA
procedures available in that State. The        tion to a court in another State, along with   section 311, as discussed below).
UCCJEA and the PKPA require Arizona to         copies of the child-custody determination
                                                                                              The UCCJEA’s expedited enforcement sec-
enforce the mother’s order.                    and other required information. The court
                                                                                              tions provide for an enforcement hearing,
                                               files the order as a foreign judgment and
                                                                                              normally within 24 hours of service (i.e.,
                                               serves notice on the parent (or person
Duty To Enforce Under                          acting as a parent) who has been awarded
                                                                                              on the next judicial day after service). If
                                                                                              that date is impossible, the hearing must
the UCCJEA                                     custody or visitation in the order. Persons
                                                                                              be held on the first judicial day possible.
The UCCJEA requires State courts to rec-       who receive notice have 20 days to re-
                                                                                              In other words, this is a priority proceed-
ognize and enforce child-custody determi-      quest a hearing to contest the validity of
                                                                                              ing on the fastest track available.
nations made in substantial conformity         the order. If no such request is made, the
with the jurisdictional provisions of the      order is confirmed as a matter of law and      At the hearing, the respondent has limited
Act or made under factual circumstances        may be enforced as if it were a local order.   defenses, the availability of which de-
that meet the jurisdictional standards of                                                     pends on whether the order has been reg-
                                               If the registration is contested, only three
the Act.62 This basic duty to enforce is the                                                  istered. If so, the only available defense is
                                               defenses are available:
same as that in the UCCJA; however, a                                                         that the order has since been vacated,
custody order is enforceable under the         x That the court making the custody de-        stayed, or modified. If the custody order
UCCJEA only if the issuing court exer-           termination lacked jurisdiction.             has not been registered, the respondent
cised jurisdiction in conformity with the      x That the person contesting registra-         may assert the three defenses that could
UCCJEA.                                          tion was entitled to but did not receive     have been raised in a registration pro-
                                                 notice of the underlying custody pro-        ceeding: (1) lack of jurisdiction in the is-
In addition to establishing a duty to en-                                                     suing court; (2) the underlying custody
force sister States’ custody and visitation      ceeding in accordance with the
                                                 UCCJEA.                                      order has been vacated, stayed, or modi-
orders, the UCCJEA creates five new inter-                                                    fied; and (3) lack of notice.
state enforcement mechanisms. These            x That the child-custody determination
mechanisms, each described in this sec-          has been vacated, stayed, or modified.       At the conclusion of the hearing, unless
tion, supplement any other enforcement                                                        the respondent has established a defense,
                                               The UCCJEA’s registration process differs      the court must issue an order authorizing
procedures available under State law.          from the UCCJA provision requiring clerks      the petitioner to take immediate physical
Registration of an out-of-State custody        of court to maintain a registry for filing     custody of the child. Pursuant to section
determination. The UCCJEA creates a            out-of-State decrees. The UCCJA’s registry     312, the court must also order the re-
process for registering out-of-State cus-      provision was omitted from the UCCJEA.65       spondent to pay the petitioner’s neces-
tody and visitation orders.63 Parents and      Temporary visitation orders. Under the         sary and reasonable expenses68 unless the
other parties are not required to register     UCCJEA, courts may issue temporary             respondent shows that such award would
a custody or visitation determination but      orders to enforce visitation schedules in      be clearly inappropriate. (If the respond-
may choose to do so for the following          other States’ court orders or visitation       ent had prevailed, the court would assess
reasons:                                       provisions of out-of-State orders that do      the petitioner with costs and expenses be-
x Registration puts the courts of a State      not contain a specific schedule.66 For in-     cause section 312 expressly provides for
  on notice of an existing custody deter-      stance, courts may order compensatory          an award to the “prevailing party.”) The
  mination and of the issuing court’s          visitation time or give specific meaning       return order may also include a directive
  exclusive, continuing jurisdiction.          to another State’s award of “reasonable        for law enforcement assistance.
                                               visitation.”
x Registration is a pretest of enforceabili-                                                  Warrants to take physical custody of a
  ty; that is, it can be used to obtain as-    Although this section gives judges the         child. The UCCJEA also includes a proce-
  surance that the custody determination       authority to issue temporary orders to         dure to ensure a child’s safety and pres-
  will be enforced in the future.64            facilitate visitation that might not other-    ence in the jurisdiction when notice of an
                                               wise occur, it does not confer modification    enforcement proceeding might cause the
x Registration limits possible defenses to
                                               jurisdiction to make wholesale changes         recipient to harm or flee with the child.69
  enforcement at a later date, which sim-                                                     On a finding that a “child is imminently
  plifies and expedites subsequent en-         to sister States’ orders. Consistent with
                                               the UCCJEA and the PKPA, permanent             likely to suffer serious physical harm or
  forcement efforts.                                                                          be removed from the State,” section 311
                                               changes to the underlying custody order
x Uncontested registration may obviate         may be made only by the court with modi-       specifically authorizes a court to issue a
  the need for lawyers in a case, which        fication jurisdiction, unless that State       warrant directing law enforcement officers
  would be a great benefit to parents          declines to exercise jurisdiction.             to take immediate physical custody of the
  who cannot afford counsel.                                                                  child.
                                               Expedited enforcement of custody de-
x A registered order is enforceable as if      terminations. Sections 308–310 of the          Warrants to take physical custody of a
  it were a local order as of the date of      UCCJEA create a new enforcement reme-          child (also known as “pickup” orders) are
  registration.                                dy, the object of which is the immediate       obtained under the UCCJEA in conjunc-
                                               recovery of a child.67 It is fast and summa-   tion with an enforcement action. The peti-
                                               ry in nature. If there is a risk of serious    tioner files a verified application to obtain
                                                                                              a warrant to take physical custody of the


                                                                    8
child upon filing an enforcement action.       civil proceeding—to locate a child, facili-       interference cases. This network
The court must take testimony from the         tate a child’s return, or enforce a child-        should result in faster resolution of
petitioner or another witness. The testi-      custody determination. Any actions taken          many interstate custody and visitation
mony may be taken by phone, in person,         by the prosecutor are done on behalf of           disputes, thereby sparing children the
or by any other means allowed under            the court. The prosecutor does not repre-         trauma of protracted custody litigation,
local law. If the court finds that the child   sent any party.                                   reducing litigation costs for parents,
is imminently likely to suffer serious                                                           and limiting more costly prosecutions
physical harm or be removed from the           The prosecutor may act if one of the fol-
                                                                                                 by allowing prosecutors to pursue civil
State, the court may issue a warrant to        lowing exists:
                                                                                                 remedies.
take physical custody of the child. The        x A prior custody determination.               x Give prosecutors the authority to assist
warrant must direct law enforcement offi-                                                       with civil enforcement, thereby provid-
                                               x A request from a court in a pending
cers to pick up the child immediately, and                                                      ing custodial parents of limited finan-
                                                 child-custody proceeding.
it must provide for the child’s placement                                                       cial ability lawful means by which to
pending the enforcement hearing. The           x A reasonable belief that a criminal
                                                                                                secure return of their children.
respondent must be served with the peti-         statute has been violated.
tion, warrant, and order immediately after                                                    x Involve public authorities in handling
                                               x A reasonable belief that a child has
the warrant is executed (i.e., after the                                                        international child-custody and visita-
                                                 been wrongfully removed or retained
child is picked up), and the enforcement                                                        tion disputes under the Hague Conven-
                                                 in violation of the Hague Convention.
petition must be heard on the next judicial                                                     tion. Their involvement should improve
day unless that date is impossible.            Under section 315, prosecutors may re-           the United States’ standing with treaty
                                               quest the assistance of law enforcement          partners—many of whom now provide
This remedy may be especially helpful in       officers, and section 316 expressly author-      free legal assistance to U.S. citizens
preventing international abductions. The       izes them to respond to such a request.71        seeking return of their children from
ICARA contemplates that courts hearing         Under section 317, prosecutors and law           abroad—and may foster the return of
Hague Convention cases may take meas-          enforcement agencies may recover their           more children who have been abducted
ures under State and Federal law to pro-       direct costs and expenses from a non-            from this country.
tect the well-being of a child or to prevent   prevailing party.
further removal or concealment before                                                         x Give the criminal justice community
final disposition of the petition. Section     The authority granted under these sec-           the option of using civil remedies in
311 of the UCCJEA provides the authority       tions is discretionary, meaning that prose-      interstate and international custody
to do so.                                      cutors may elect to use their new civil          and abduction cases, while leaving the
                                               authority to resolve custody and visitation      door open to prosecute the abducting
Public enforcement provisions. Sections        interference cases but are not required to       parent when circumstances warrant.
315–317 of the UCCJEA provide a mecha-         do so. For example, a prosecutor may opt         This leeway should facilitate resolution
nism for enforcing custody and visitation      for civil remedies under the UCCJEA when         of these difficult cases in the best inter-
orders70 that is modeled on a system that      this approach would best serve the child         ests of children and society.
has functioned remarkably well in Cal-         and family. Compared with criminal pro-
ifornia for more than 20 years with wide       ceedings, civil proceedings tend to be less
support from the criminal justice commu-       traumatic for children. In all cases, prose-
                                                                                              Conclusion
nity. (See “The Role of Prosecutors and        cutors may choose, under State criminal        This Bulletin has highlighted the many
Law Enforcement in Civil Custody Enforce-      law, to prosecute the perpetrator-parent if    ways in which nationwide enactment of
ment: California’s Experience,” page 10.)      prosecution is in the interest of justice.     the UCCJEA would improve interstate
                                               Civil and criminal remedies may be pur-        child-custody practice. To recap a few, the
State legislatures may designate any pub-                                                     UCCJEA adopts the PKPA’s priority for
                                               sued simultaneously in some circum-
lic officials they deem appropriate to im-                                                    home State jurisdiction in initial custody
                                               stances. In short, the UCCJEA adds civil
plement sections 315 and 316. Although                                                        cases and codifies the principle of exclu-
                                               remedies to the tools prosecutors already
most States will select prosecutors and                                                       sive, continuing jurisdiction. These pro-
                                               have under criminal statutes but allows
law enforcement, legislatures may desig-                                                      visions will clarify where child-custody
                                               prosecutors to choose how to proceed in
nate other public officials, such as a                                                        proceedings should be brought and sub-
                                               parental kidnapping cases.
“Friend of the Court.” California’s experi-                                                   stantially reduce the number of competing
ence exemplifies the advantages of allow-      Sections 315–317 offer potential advan-        custody proceedings in sister States. The
ing district attorneys, criminal investiga-    tages to prosecutors, children, and par-       UCCJEA also includes the following inno-
tors, and other law enforcement officers       ents. Specifically, the provisions may:        vative enforcement mechanisms: the expe-
to play an active part in civil enforcement                                                   dited enforcement procedure, the warrant
of custody determinations. The following       x Deter abductions and encourage citi-
                                                 zens to respect the terms of court           to take physical custody of a child, and
explanation of sections 315–317 assumes                                                       the public officials sections of the Act, all
that State legislatures have designated          orders.
                                                                                              of which should result in swifter, more
prosecutors and law enforcement officers       x Deter self-help recoveries (“reabduc-        streamlined, and more predictable inter-
to exercise the new discretionary powers.        tions”), which can be harmful to             state enforcement of custody and visita-
                                                 children and may have civil or criminal      tion orders. The UCCJEA’s new interstate
Section 315(a) of the UCCJEA gives prose-
                                                 consequences for parents.                    jurisdictional rules and procedures reflect
cutors statutory authority to take any law-
ful action—including instituting a proceed-    x Create an interstate network of recipro-     sensitivity to the safety needs of parents
ing under article 3 or any other available       cal assistance to resolve custodial          and children who are the victims of do-
                                                                                              mestic violence.


                                                                    9
  The Role of Prosecutors and Law Enforcement in Civil Custody Enforcement:
  California’s Experience
  District attorneys and law enforcement                 x The likelihood of flight.                     lawyer (at State expense) to bring the
  officers in California have had the statu-                                                             action under local law.
  tory authority to intervene in civil child             x The health and welfare of the child.
  custody enforcement cases for more                                                                     In predecree abduction cases (i.e.,
                                                         Although the prosecutor may initially           when there is no custody determination
  than 20 years. The UCCJEA’s “public                    choose a civil approach, he or she re-
  officials” provisions are modeled on                                                                   at the time of the abduction), the district
                                                         tains the discretion to proceed criminally      attorney usually requires the left-behind
  California law. Although California’s en-              against the abductor if the facts and cir-
  actment of the UCCJEA has changed                                                                      parent to initiate a custody proceeding.
                                                         cumstances warrant (e.g., where facts are       However, the district attorney can file
  some enforcement practices,1 it is useful              uncovered that indicate that the child may
  to examine the extensive pre-UCCJEA                                                                    the appropriate initial pleading in certain
                                                         be endangered or abused).                       cases.
  experience of California’s prosecutors
  and law enforcement officers in these                  Under civil enforcement, once the abduct-       In cooperation with the California State
  cases.                                                 ing parent and the child are located, the       Attorney General, California district
                                                         district attorney may contact the abduct-       attorneys also play an important role in
  A California prosecutor seeking to re-                 ing parent by telephone, explain the law,
  cover a child being wrongfully kept in                                                                 international child abduction cases in-
                                                         and request a voluntary return. If the          volving the Hague Convention. When a
  another State (in violation of a custody               abducting parent refuses to cooperate or
  determination) may evaluate the case                                                                   child is abducted to California from a
                                                         if such contact may trigger flight and con-     Hague Convention country, the district
  to determine whether to initially proceed              cealment of the child, the district attorney
  criminally or civilly. The prosecutor will                                                             attorney may seek the voluntary return
                                                         will secure an order from the California        of the child or pursue a court action
  consider several factors in determining                court directing the district attorney to re-
  his or her approach. Factors affecting                                                                 under the Convention for the return of
                                                         cover the child. This order gives the dis-      the child. When a child is abducted from
  the decision include the following:                    trict attorney temporary custody of the         California to a Hague Convention coun-
  x Facts surrounding the abduction.                     child for the purpose of the child’s recov-     try, the district attorney is involved in
                                                         ery and designates temporary placement          locating the child and may file an appli-
  x Evidence that the child is in danger.                of the child. (The court may order the          cation with the U.S. Department of
                                                         child placed with the left-behind parent, in    State or directly with the foreign Central
  x The child’s age.                                     foster care, or otherwise, depending on         Authority under the Hague Convention
  x Date the child was initially taken.                  the facts and circumstances of the case.)       seeking the child’s return.
                                                         The district attorney (or criminal investiga-
  x The likelihood that the child will be                tor working with the district attorney) then    Based on California’s experience, the
      removed from the country.                          contacts the law enforcement agency and         cost of using prosecutors and law en-
                                                         the court in the jurisdiction where the         forcement in the civil enforcement of
  x Concealment of the child.                            child is located to arrange for pickup of       custody matters should be modest.
  x Allegations or evidence of domestic                  the child (and to inquire about a UCCJEA        Using civil remedies to resolve custodial
                                                         enforcement proceeding, if applicable).         interference cases typically costs less
      violence or child abuse.
                                                         The district attorney ascertains the pro-       than prosecuting wrongdoer parents. In
  x The criminal history of both parties.                cedures and requirements of the law en-         1989, the California Controller’s Office
                                                         forcement agency and the court regarding        paid counties $3.3 million for their work
  x The probability of recovering the                    enforcement practices and any other per-        in 5,890 cases statewide. The 1991–92
      child without pressing criminal                    tinent issues, such as arrangements for         budget was also $3.3 million, but prose-
      charges against the abductor.                      overnight shelter and care.                     cutors assisted in almost 8,000 cases
                                                                                                         of civil custody enforcement and recov-
  x The assistance available from the                    If the law enforcement agency is coopera-       ered 3,000 abducted children. The vol-
      other State without pressing criminal              tive, pickup of the child generally goes        ume of cases has grown since then,
      charges.                                           smoothly. If a court hearing is required,       with corresponding increases in State
                                                         the presence and/or testimony of the dis-       spending, as more counties have be-
                                                         trict attorney’s investigator may be suffi-     come involved in civil custody enforce-
  1 One of the most important changes since enact-       cient for the court to order the return of      ment. Other States can expect to spend
  ment of the UCCJEA is the increase in interstate       the child with the investigator. If the local
  judicial communication to address jurisdictional and
                                                                                                         less than California because California,
                                                         law enforcement agency is not coopera-          the most populous State, probably has
  enforcement issues.                                    tive or if an enforcement action is re-         the highest volume of custodial interfer-
                                                         quired, the district attorney may retain a      ence cases in the country.



Readers interested in promoting enact-                   law may be obtained from NCCUSL. (Con-          courts interpreting it uniformly, and pub-
ment of the UCCJEA in their State should                 tact information for NCCUSL appears in          lic officials using the law’s new tools ef-
contact the Governor’s office and members                the “For Further Information” section.)         fectively to minimize the harmful effects
of the Judiciary Committees in their State                                                               children endure when they are pawns in
legislature to request action on the legisla-            Once the UCCJEA is enacted, its success
                                                                                                         interjurisdictional custody battles.
tion. Legislative packets and copies of the              will depend on lawyers using it wisely,



                                                                              10
                                                                                                                703–274–2220 (fax)
  A Prosecutor’s Perspective                                                                                    77431.177@Compuserve.com
                                                                                                                www.missingkids.com
  As a general proposition, California’s prosecutors and law enforcement officers are
  very supportive of the dual civil/criminal approach to custodial interference cases. In                       NCMEC is a private, nonprofit clearing-
  1992, when the State was making programmatic cuts to reduce its deficit, strong                               house that was established in 1984 and
  statewide support from the criminal justice community fended off an effort to cut a                           operates under a congressional mandate.
  program that implemented this approach. A district attorney with expertise in child                           A resource center for child protection,
  abduction cases sums up why the program was well received by California’s crimi-                              NCMEC collects and distributes informa-
  nal justice community and why the UCCJEA should be supported:1                                                tion on missing and exploited children
                                                                                                                and operates a national toll-free hotline,
      As a prosecutor assigned to the Child Abduction Unit of the Santa Clara
      County D.A.’s Office for the past 6 years, I can personally attest to the incalcu-                        800–THE–LOST (800–843–5678), for indi-
      lable value of the availability of civil, as well as criminal, enforcement tools in                       viduals to report missing children or re-
      resolving interstate child abduction cases. This office alone has recovered ap-                           quest information. NCMEC assists fami-
      proximately 1,777 children in the last 10 years. The ability to act in a civil con-                       lies and can be of tremendous help to law
      text has been an important factor in recovery of these children. In the majority                          enforcement in case management, case
      of the custody and visitation disputes I have handled, resolving the issues                               tracking, lead and information analysis,
      without criminal proceedings has clearly served the best interests of the chil-                           and coordination of responses across
      dren involved. Other states do not have the same ability to serve and recover                             jurisdictional lines.
      their children. The most effective deterrent to child abduction in this country
      would be the nationwide network of law enforcement and prosecutors this bill                              National Center for Prosecution of Child
      [the UCCJEA] would create.                                                                                Abuse (NCPCA)
                                                                                                                99 Canal Center Plaza, Suite 510
                                                                                                                Alexandria, VA 22314
  1J.M. Heim, Deputy District Attorney, Child Abduction Unit, Santa Clara County, CA, personal communication,   703–739–0321
  March 1996, to Justice Marian Opala, Chair, UCCJEA Drafting Committee, in support of the prosecutor/law       703–549–6259 (fax)
  enforcement sections of the UCCJEA.                                                                           www.ndaa-apri.org/apri/NCPCA/Index.html
                                                                                                                The National Center for Prosecution of
                                                                                                                Child Abuse recognizes child abuse as a
For Further Information                                  drafting committee. Although the Center
                                                                                                                crime for which perpetrators must be
                                                         currently has no ongoing projects related
For additional information on the UCCJEA,                                                                       held accountable. Because no area of
                                                         to parental kidnapping, its Web site in-
readers may contact the organizations                                                                           criminal justice has changed so rapidly in
                                                         cludes an extensive collection of literature
listed and described below. Brief descrip-                                                                      the past 15 years, the need for profession-
                                                         about parental kidnapping and links to
tions of selected publications available                                                                        al specialization is especially great. Com-
                                                         other resources.
from each organization are also provided.                                                                       mitted to excellence in training, technical
                                                         American Bar Association (ABA)                         assistance, and publications, the National
Organizations                                            Section of Family Law                                  Center for Prosecution of Child Abuse is
                                                         750 North Lake Shore Drive                             meeting that need. In cooperation with
American Bar Association (ABA)
                                                         Chicago, IL 60611–4497                                 prosecutors and other child abuse profes-
Center on Children and the Law
                                                         Attn: Jeff Atkinson, ABA advisor to the                sionals in the United States and interna-
740 15th Street NW., Ninth Floor
                                                            UCCJEA drafting committee                           tionally, the Center demonstrates concern
Washington, DC 20005–1009
                                                         312–988–5000                                           for a particularly vulnerable group of
202–662–1720
                                                         www.abanet.org/family/home.html                        crime victims based on the premise that
202–662–1755 (fax)
                                                                                                                children are entitled to equal treatment
ctrchildlaw@abanet.org                                   The ABA is the largest voluntary associa-              under the law.
www.abanet.org/child                                     tion of lawyers in the United States, and
                                                         its Section of Family Law is devoted to                National Conference of Commissioners
The ABA Center on Children and the Law
                                                         stabilizing and preserving the family. The             on Uniform State Laws (NCCUSL)
concentrates on legal issues that directly
                                                         spring 1998 issue of Family Law Quarterly,             211 East Ontario Street, Suite 1300
affect children. The Center’s Obstacles to
                                                         one of the section’s two publications,                 Chicago, IL 60611
the Recovery and Return of Parentally
                                                         focused on two uniform laws that affect                312–915–0195
Abducted Children Project, funded by
                                                         children and families: the UCCJEA and the              312–915–0187 (fax)
OJJDP and directed by Linda Girdner,
                                                         Uniform Interstate Family Support Act.                 www.nccusl.org
Ph.D., documented problems that parents
                                                         The ABA advisor to the UCCJEA drafting
face when children are abducted inter-                                                                          For more than 100 years, NCCUSL has pro-
                                                         committee, Jeff Atkinson, is an active
state and internationally. Among the many                                                                       moted uniformity in State law and inter-
                                                         member of the Section of Family Law.
recommendations contained in the origi-                                                                         state cooperation by developing uniform
nal Obstacles Project’s final report was                 National Center for Missing and                        acts and endeavoring to secure their en-
the need for streamlined, uniform proce-                 Exploited Children (NCMEC)                             actment by the voluntary action of each
dures to expedite interstate enforcement                 Charles B. Wang International Children’s               State government. The conference in-
of custody and visitation orders. In fur-                   Building                                            cludes commissioners from each State,
therance of that goal, the Obstacles Proj-               699 Prince Street                                      the District of Columbia, the Common-
ect’s Legal Director, Patricia M. Hoff, J.D.,            Alexandria, VA 22314–3175                              wealth of Puerto Rico, and the U.S. Virgin
served as an advisor to the UCCJEA                       800–843–5678                                           Islands. Drafting committees made up of


                                                                                   11
commissioners are appointed to draft spe-     Parental Kidnapping: Prevention and           examines the challenges and opportuni-
cific acts, and advisors and observers        Remedies. This paper is designed to help      ties this crime poses to policymakers.
often participate in the drafting process.    attorneys better understand parental
A draft uniform act must be read, section     abduction cases and applicable laws. It       Missing and Abducted Children: A Law-
by section, at no fewer than two annual       includes practical tips on protections that   Enforcement Guide to Case Investigation
meetings before a decision is made, by        can be placed in child custody orders         and Program Management. This guide,
vote of States, to promulgate the act as a    that may help prevent an abduction, tips      authored by a team of 38 professionals
Uniform Act.                                  that lawyers can give their parent clients,   from local, State, and Federal agencies,
                                              a review of possible legal actions that can   outlines a standard of practice for law
NCCUSL approved the UCCJEA in 1997.                                                         enforcement officers handling several
                                              be taken on parents’ behalf, and govern-
Copies of the law are available from                                                        types of missing child cases, including
                                              mental resources that can be used to help
NCCUSL’s Chicago address and may be                                                         runaways, thrownaways, family/nonfamily
                                              in these cases.
downloaded from the NCCUSL Web site                                                         abductions, and disappearances in which
(www.nccusl.org).                             Parental Kidnapping Law Reform Package        the circumstances are unknown.
                                              (consists of three proposed State laws:
Office of Juvenile Justice and                                                              When Your Child Is Missing: A Family
                                              Parental Kidnapping Crime Act, Missing
   Delinquency Prevention (OJJDP)                                                           Survival Guide. Also available from
                                              Children Record Flagging Act, and Tor-
Child Protection Division (CPD)                                                             OJJDP; see page 13 for description.
                                              tious Interference With Child Custody
810 Seventh Street NW.
                                              and Visitation Act). This package, pro-       NCPCA. The following documents are
Washington, DC 20531
                                              duced in 1996, contains three proposed        available from NCPCA (see Publications
202–616–3637
                                              State laws related to parental abduction      on its Web site).
202–353–9093 (fax)
                                              that can be adopted by State legislatures.
www.ojjdp.ncjrs.org                                                                         Charging the Parental Kidnapping Case.
                                              ABA Section of Family Law. The following      This monograph assists prosecutors in
OJJDP’s Child Protection Division admin-
                                              document is available from the Section        determining appropriate charges and sen-
isters programs related to crimes against
                                              (see Publications on its Web site).           tencing recommendations. It notes that an
children and provides leadership and
funding in the areas of enforcement, inter-   International Child Abductions: A Guide to    aggressive investigative and prosecutorial
vention, and prevention. CPD promotes         Applying the 1988 Hague Convention, With      approach sends the message that paren-
effective policies and procedures to ad-      Forms, Second Edition. This guide provides    tal kidnapping is a serious crime with
dress the problems of abused, neglected,      all the basic information needed to invoke    serious consequences for both victims
missing, and exploited children. Activities   and apply the Hague Convention and the        and abductors and recommends that
include conducting research, providing        forms necessary for its use.                  prosecution be seriously considered in
training and technical assistance, and                                                      every parental kidnapping case.
supporting demonstration and service          NCMEC. The following documents are
                                              available from NCMEC (see Education           Investigation and Prosecution of Parental
programs related to child victimization.                                                    Abduction, 2000 (Training Conference
CPD also supports the National Center         & Resources on its Web site or call
                                              800–843–5678).                                Notebook). This notebook contains train-
for Missing and Exploited Children (see                                                     ing materials compiled for the 2000
above), a clearinghouse and resource          Family Abduction. This handbook guides        NCPCA Conference, Investigation and
center that collects and distributes data     parents through the civil and criminal jus-   Prosecution of Parental Abduction.
regarding missing and exploited children      tice systems, explains the laws that will
and operates a national toll-free hotline     help them, outlines prevention methods,       Parental Kidnapping, Domestic Violence and
(800–843–5678).                               and provides suggestions for aftercare        Child Abuse: Changing Legal Responses to
                                              following the abduction. It thoroughly        Related Violence. This monograph assists
                                                                                            investigators and prosecutors in develop-
Publications                                  details search and recovery strategies
                                                                                            ing appropriate responses to the inter-
ABA Center on Children and the Law.           and contains advice for attorneys, prose-
                                              cutors, and family court judges handling      related crimes of parental kidnapping,
The following documents are available                                                       domestic violence, and child abuse.
from the Center (see Issues/Parental          these cases.
Kidnapping on its Web site).                  International Forum on Parental Child         NCCUSL. Copies of acts, drafts, and legis-
                                              Abduction: Hague Convention Action            lation are available from NCCUSL (see
Hague Child Abduction Convention Issue                                                      NCCUSL Acts, Drafts & Legislation on its
Briefs. This 1997 material consists of four   Agenda. This report details the findings
                                              of a forum held in September 1998 to          Web site).
issue briefs that can help attorneys han-
dle cases that fall under the Hague Con-      study the Hague Convention on the Civil       OJJDP. The following documents are avail-
vention on the Civil Aspects of Inter-        Aspects of International Child Abduction.     able from OJJDP (see Publications on its
national Child Abduction.                     It offers 12 action/agenda items to help      Web site or call the Juvenile Justice Clear-
                                              strengthen the implementation of the          inghouse at 800–638–8736) or from the
The Hague Convention: A Curriculum for        Hague Convention.                             National Criminal Justice Reference Serv-
American Judges and Lawyers. This 1997                                                      ice (visit www.ncjrs.org or call
publication explains how the Hague Con-       “The Kid Is With a Parent, How Bad Can It
                                              Be?”: The Crisis of Family Abductions. This   800–851–3420).
vention can be used effectively within the
United States in international parental       issue brief discusses the seriousness of      Addressing Confidentiality of Records in
kidnapping cases.                             the problem of family abduction, consid-      Searches for Missing Children (NCJ 155183).
                                              ers whether the problem is growing, and       This Report makes recommendations



                                                                  12
concerning law enforcement agencies’            the civil and criminal remedies availa-        primary issues involved in parental
access to records maintained by schools,        ble in international parental kidnapping       abduction.
hospitals, child welfare agencies, domes-       cases, explains applicable laws and identi-
tic violence shelters, and runaway shel-        fies both the public and private resources     Prevention of Parent or Family Abduction
ters. The Report also covers information        that may be called upon when an interna-       Through Early Identification of Risk Factors
release procedures and includes a check-        tional abduction occurs or is threatened,      (NCJ 182791). Based on analyses of data
list for maximizing record access from          and prepares parents for the legal and         from several California studies related to
service providers. The Report’s appen-          emotional difficulties they may experience.    child abductions by a noncustodial par-
dixes contain additional information and                                                       ent, this Report outlines a set of charac-
other relevant statistical data on the con-     International Parental Kidnapping: A Law       teristics of parents who abduct their
fidentiality of records in searches for         Enforcement Guide (forthcoming). This          children and presents indepth socio-
missing children, jurisdictions that allow      guide provides practical information on        demographic and legal information
record access or impose reporting re-           the public and private resources and           about the families of abducted children.
quirements in missing children cases,           services that are available to assist law
                                                enforcement in international parental          Using Agency Records To Find Missing
and State laws affecting record access.                                                        Children: A Guide for Law Enforcement
                                                abduction cases. It explains applicable
The Criminal Justice System’s Response to       laws, defines agency roles and responsi-       (NCJ 154633). This Summary focuses on
Parental Abduction (NCJ 186160). This           bilities, describes criminal and civil reme-   procedures for obtaining and using the
Bulletin summarizes primary findings            dies, examines methods for prevention          records of certain types of human service
from a study of the criminal justice sys-       and interception, and discusses impor-         providers to find missing children. It ex-
tem’s response to parental abduction.           tant issues and procedures to be ad-           amines the use of, access to, barriers to
Funded by OJJDP and conducted jointly           dressed during an international parental       securing, and limitations of records from
by the American Bar Association Center          abduction case.                                schools, medical care providers, runaway
on Children and the Law and Westat, the                                                        shelters, and domestic violence shelters.
study examined all aspects of the system’s      Issues in Resolving Cases of International
                                                Child Abduction (NCJ 182790). This Report      When Your Child Is Missing: A Family
response, including the reporting of the                                                       Survival Guide (NCJ 170022; Spanish ver-
incident, investigation of the case, loca-      documents a lack of uniformity in the
                                                application of the Hague Convention            sion: NCJ 178902). This guide, written by
tion and recovery of the child, and crimi-                                                     parents and family members who have
nal prosecution of the abductor. The Bul-       across countries. It includes case histo-
                                                ries, survey findings on left-behind par-      experienced the disappearance of a child,
letin reports results from the study’s                                                         explains how parents can best participate
national survey of law enforcement agen-        ents, selected practices in international
                                                family abduction cases, and recommenda-        in the search for a missing child. It dis-
cies and prosecutors, site visits, and case                                                    cusses the parents’ relationship with
file reviews and presents implications for      tions for the judicial and legal systems.
                                                                                               law enforcement, examines issues related
legal, programmatic, and policy reforms.        Issues in Resolving Cases of International     to the media, and presents practical in-
Early Identification of Risk Factors for        Child Abduction by Parents (NCJ 190105).       formation about distributing fliers and
Parental Abduction (NCJ 185026). This           This Bulletin provides an overview of the      photos, organizing volunteers, and man-
Bulletin presents the design and findings       major survey findings, selected good           aging monetary donations.
of four OJJDP-funded projects on prevent-       practices, and recommendations from
ing family abductions: a documentary            the Report Issues in Resolving Cases of        Bibliography
study, a criminal sanctions study, an           International Child Abduction (see previous    Gonzalez, R.M., Tumonis, E.F., and Dun-
interview study, and an intervention            entry).                                        ham, R. 1998. Attorney General Child Ab-
study. The findings provide information         Obstacles to the Recovery and Return of        duction Reference Manual. Sacramento,
regarding the risk factors associated with      Parentally Abducted Children (Report: NCJ      CA: State of California Department of
parental kidnapping and strategies that         144535; Research Summary: NCJ 143458).         Justice, Office of the Attorney General.
can be used to intervene with at-risk           These publications present the results of      Hoff, P.M. 1998. The ABC’s of the UCCJEA:
families.                                       a 2-year study of the legal, policy, proce-    Interstate child-custody practice under
Family Abductors: Descriptive Profiles and      dural, and practical obstacles to the loca-    the new act. Family Law Quarterly 32(2):
Preventive Interventions (NCJ 182788). This     tion, recovery, and return of parentally       267–299.
Bulletin describes preventive interventions,    abducted children. They include recom-
such as counseling, conflict resolution, and    mendations to overcome each obstacle           Spector, R.G. 1998. Uniform Child-Custody
legal strategies, that seek to settle custody   and extensive appendixes that describe         Jurisdiction and Enforcement Act (with
and access disputes for families identified     the pros and cons of existing legal proce-     Prefatory Note and Comments). Family
as at risk for parental abduction.              dures for enforcing a custody order, sam-      Law Quarterly 32(2):301–384.
                                                ple forms to be used with existing legal
A Family Resource Guide on International        procedures, and summaries of both civil
Parental Kidnapping (NCJ 190448). This          and criminal appellate decisions.
                                                                                               Endnotes
guide presents practical and detailed                                                          1. Uniform Child-Custody Jurisdiction and
advice about preventing international kid-      Parental Abduction: A Review of the            Enforcement Act (1997), 9(1A) U.L.A. 657
napping and increasing the chance that          Literature (Available online only: ojjdp.      (1999). The text is accessible online at
children who are kidnapped or wrongfully        ncjrs.org/pubs/missing.html#186160).           www.nccusl.org.
retained will be returned. It provides de-      This online resource summarizes current
                                                research and literature relating to the        2. Uniform Child Custody Jurisdiction Act,
scriptions and realistic assessments of
                                                                                               9(1A) U.L.A. 271 (1999).



                                                                    13
3. Alabama, Alaska, Arizona, Arkansas, Cali-    13. 28 U.S.C. § 1738A, “Full Faith and Credit    Hawaii and her ex-husband, who retained
fornia, Colorado, Connecticut, the District     Given to Child Custody Determinations.”          custody of their daughter in Indiana.
of Columbia, Georgia, Idaho, Iowa, Kansas,      14. 28 U.S.C. § 1738A(d). This section es-       Proceeding in accordance with the UCCJA,
Maine, Minnesota, Montana, New Mexico,          tablishes the principle of “exclusive, con-      the mother sought to enforce the Ha-
North Carolina, North Dakota, Oklahoma,         tinuing jurisdiction.”                           waiian court order in Indiana. The father
Oregon, Tennessee, Texas, Utah, Virginia,                                                        resisted at every level of the State’s
Washington, and West Virginia.                  15. 28 U.S.C. § 1738A(g). This section pro-      courts.
                                                hibits simultaneous proceedings.
4. Florida, Hawaii, Illinois, Indiana, Mary-                                                     After 3 years of litigation, the mother final-
land, Mississippi, Missouri, New Jersey,        16. 28 U.S.C. § 1738A(e).                        ly prevailed; the father had exhausted his
New York, and Rhode Island.                     17. Like the UCCJA, the PKPA defines             remedies in the State courts, and it was
5. The terms “child-custody determina-          “home State” as the State in which a child       expected that the orders of the State Su-
tion,” “custody determination,” and             has lived with a parent or person acting         preme Court and the Court of Appeals
“order,” as used in this Bulletin, refer to     as a parent for at least 6 months preced-        would be honored and the child returned
custody determinations and visitation           ing the commencement of a child-custody          to her mother. However, the father’s coun-
determinations.                                 proceeding.                                      sel staged an 11th hour attempt to shield
                                                                                                 his client from the orders of Indiana’s high-
6. Parental Kidnapping Prevention Act of        18. See endnote 12, supra.
                                                                                                 est courts by initiating the filing of a CHINS
1980, 28 U.S.C. § 1738A.                        19. See endnotes 6–9, supra.                     (Child In Need of Services) petition by the
7. Violence Against Women Act of 1994;          20. 18 U.S.C. § 2266. The VAWA’s definition      county prosecutor in juvenile court. The
Violence Against Women Act of 2000, 18          of “protection order” expressly excludes         juvenile court issued the CHINS petition
U.S.C. §§ 2265, 2266.                           child-custody orders issued pursuant to          minutes before the Circuit Court’s issu-
                                                State child-custody laws (except to the          ance of a writ of habeas corpus ordering
8. The complete text of the Hague Conven-
                                                extent that they are entitled to Full Faith      the return of the child to her mother.
tion can be found at 51 Fed. Reg. 10,494 et
                                                and Credit under Federal law).                   However, the Circuit Judge assisted the
seq. (1986) or online via the U.S. Depart-
                                                                                                 father’s efforts by ordering that the writ
ment of State’s Web site at www.travel.         21. As of July 2001, the Hague Convention        not be executed for 4 hours and then dis-
state.gov, under “International Parental        was in force between the United States           qualifying himself from hearing the CHINS
Child Abduction.”                               and 49 countries. For a complete list of         petition. A new judge was named to hear
9. International Child Abduction Remedies       countries that are party to the Conven-          the CHINS petition, and it was this judge
Act, 42 U.S.C. § 11601 et seq.                  tion, see the U.S. Department of State’s         who found the daughter in need of servi-
                                                Web site (www.travel.state.gov) or the           ces and ordered that she be detained for a
10. Uniform Child Custody Jurisdiction          Hague Conference on Private International
Act, Prefatory Note. The Full Faith and                                                          mental examination.
                                                Law’s Web site (www.hcch.net).
Credit clause requires that full faith and                                                       Characterizing the sole legal issue in the
credit “be given in each state to the public    22. The Hague Convention, ratified in            contempt proceeding as whether the juve-
acts, records, and judicial proceedings         1986, took effect in the United States in        nile court’s jurisdiction was properly in-
of every other state” (U.S. Constitution,       1988 following enactment of the Interna-         voked, the courts in this case held that
article IV, § 1).                               tional Child Abduction Remedies Act.             they would “not tolerate the attempted
11. Id.                                         23. UCCJA, section 1 (Purposes of Act;           use of emergency jurisdiction to reopen a
                                                Construction of Provisions). The UCCJEA          fully litigated and decided custody battle”
12. Girdner, L.K., and Hoff, P.M., eds. 1993.   omitted a “purposes” clause for stylistic        (413 N.E.2d at 245). The courts “became
Final Report: Obstacles to the Recovery and     reasons: NCCUSL no longer includes claus-        convinced that [the CHINS hearing] was
Return of Parentally Abducted Children.         es of this type in its uniform acts. The offi-   not a good faith effort to help a child in
Washington, DC: American Bar Associ-            cial comments note, however, that many           need of services. Rather, it was a well-
ation Center on Children and the Law            of the original purposes of the UCCJA            orchestrated effort to thwart the orders
(hereinafter Obstacles Project Final Re-        remain valid.                                    of these Courts by prostituting the emer-
port). The Obstacles Project Final Report                                                        gency authority of a juvenile court” (id. at
was considered by the UCCJEA drafting           24. In re Michelle Lemond, 413 N.E.2d 228
                                                (Ind. 1980). An extraordinary judicial           238). The juvenile court judge should have
committee, and numerous recommenda-                                                              recognized the CHINS petition for what it
tions from the report are reflected in the      panel—consisting of the Supreme Court of
                                                Indiana; the Court of Appeals of Indiana,        was: “nothing more than a pretense for
uniform act. In addition to suggesting                                                           the judge assuming jurisdiction,” a sham
amendments to the UCCJA and the PKPA,           First District; and the Chief Judge of the
                                                Court of Appeals—held two judges, a pri-         designed to avoid the force and effect of
the Obstacles Project Final Report pro-                                                          the writ (id. at 242).
posed an original “Act To Expedite En-          vate attorney, and a county prosecutor in
forcement of Child Custody Determina-           indirect criminal contempt for willfully         25. 716 P.2d 991 (Cal. 1986), rev’d, 484 U.S.
tions.” The purpose of the statute was to       and intentionally disobeying orders of the       400, 107 S. Ct. 2433 (1987).
alleviate the shortcomings and lack of uni-     State Supreme Court and the mandate of           26. UCCJEA, section 102(4) (definition of
formity in then-existing procedures for         the Court of Appeals in an interstate cus-       “child-custody proceeding”).
enforcing child-custody and visitation          tody enforcement case brought pursuant
                                                to the UCCJA. Each judge and lawyer was          27. UCCJEA, section 201 (Initial Child-
orders that had frustrated many parents
                                                fined $500 and charged with costs. The           Custody Jurisdiction).
trying to exercise their lawful court-
ordered rights. Article 3 of the UCCJEA         contempt proceeding stemmed from a               28. UCCJEA, section 202 (Exclusive, Con-
incorporates many ideas from the                custody dispute between a mother in              tinuing Jurisdiction). See also UCCJEA,
proposed statute.

                                                                     14
section 102(13), which defines a “person      39. UCCJEA, section 103 (Proceedings           child’s or a party’s health, safety, or liber-
acting as a parent” as “a person, other       Governed by Other Law).                        ty. If a State has adequate protections in
than a parent, who: (A) has physical cus-     40. UCCJEA, section 102(3). Temporary          existing law, it may reference them in sec-
tody of the child or has had physical         orders are expressly included in the           tion (a) and delete section (e).
custody for a period of six consecutive       UCCJEA’s definition of “child-custody de-      56. UCCJEA, section 207(b)(1).
months, including any temporary absence,      termination.” This definition is consistent
within one year immediately before the                                                       57. UCCJEA, section 202 (Exclusive, Con-
                                              with the PKPA definition and clarifies an      tinuing Jurisdiction).
commencement of a child-custody pro-          ambiguity in section 2(2) of the UCCJA.
ceeding; and (B) has been awarded legal                                                      58. UCCJEA, section 203 (Jurisdiction To
custody by a court or claims a right to       41. UCCJEA, section 105 (International         Modify Determination).
legal custody under the law of this State.”   Application of [Act]).
                                                                                             59. The UCCJA prohibition against simulta-
29. UCCJEA, section 204 (Temporary Emer-      42. 51 Fed. Reg. 10,510.                       neous proceedings was designed to pre-
gency Jurisdiction).                          43. UCCJEA, section 104 (Application to        vent this situation, but courts in two or
30. UCCJEA, section 207 (Inconvenient         Indian Tribes).                                more States often proceed with their cus-
Forum).                                       44. UCCJEA, section 201(c). Personal juris-    tody actions and issue conflicting orders
                                              diction over a party or a child is neither     notwithstanding the statutory prohibition.
31. UCCJEA, section 208 (Jurisdiction De-
clined by Reason of Conduct).                 necessary nor sufficient to make a cus-        60. UCCJEA, section 208(a)(1), (2), (3).
                                              tody determination.                            61. UCCJEA, section 208(c). Necessary and
32. UCCJEA, section 304 (Temporary
Visitation).                                  45. See UCCJEA, section 201(a)(2)(A) and       reasonable expenses include costs, com-
                                              (B), which provide that significant connec-    munication expenses, attorney’s fees, in-
33. UCCJEA, section 305 (Registration of      tion jurisdiction exists when “(A) the child   vestigative fees, expenses for witnesses,
Child-Custody Determination).                 and the child’s parents, or the child and at   travel expenses, and childcare expenses
34. UCCJEA, sections 308–310 (Expedited       least one parent or a person acting as a       during the course of the proceedings.
Enforcement of Child-Custody Determina-       parent, have a significant connection with     62. UCCJEA, section 303 (Duty To
tion; Service of Petition and Order; Hear-    this State other than mere physical pres-      Enforce).
ing and Order).                               ence; and (B) substantial evidence is avail-
                                              able in this State concerning the child’s      63. See endnote 33, supra.
35. UCCJEA, section 311 (Warrant To Take
Physical Custody of Child).                   care, protection, training, and personal       64. See comment to UCCJEA, section 305,
                                              relationships; . . . .”                        which gives as an example a foreign par-
36. UCCJEA, sections 315–317 (Role of                                                        ent seeking an advance determination of
[Prosecutor or Public Official]; Role of      46. Under the UCCJEA, a court with juris-
                                              diction may decline to exercise it if anoth-   whether a foreign custody order will be
[Law Enforcement]; Costs and Expens-                                                         recognized and enforced before sending a
es). In States that enact these sections,     er State is a more convenient forum (sec-
                                              tion 207) or the petitioner has engaged in     child to the United States for visitation.
prosecutors (or other designated public
officials) and law enforcement officers       unjustifiable conduct (section 208).           65. This author favors retaining a child-
are able to use the procedures to locate      47. UCCJEA, section 206 (Simultaneous          custody registry provision in State enact-
children, return them to the jurisdiction     Proceedings), part (a).                        ments of the UCCJEA. For a detailed dis-
of the court, and enforce custody                                                            cussion of this issue, see Hoff, 1998.
                                              48. UCCJEA, section 206 (Simultaneous
determinations.                               Proceedings), part (b); section 110 (Com-      66. See endnote 32, supra.
37. UCCJEA, section 102(4) (definition of     munication Between Courts).                    67. See endnote 34, supra.
“child-custody proceeding”).                  49. UCCJEA, section 209 (Information To        68. Recoverable costs include communica-
38. UCCJEA, section 102(3)(d). See com-       Be Submitted to Court).                        tion expenses, attorney’s fees, investiga-
ment to UCCJEA, section 102: “By exclud-      50. UCCJEA, section 206 (Simultaneous          tive fees, expenses for witnesses, travel
ing proceedings involving monetary obli-      Proceedings), part (b).                        expenses, and childcare expenses during
gations, this Act continues the notion of                                                    the course of the proceedings.
divided jurisdiction. A court may well        51. UCCJEA, section 201(a)(3).
                                                                                             69. UCCJEA, section 311 (Warrant To Take
have jurisdiction to dissolve the marriage    52. UCCJEA, section 201(a)(4).                 Physical Custody of Child).
or to make an order for child support
                                              53. UCCJEA, section 204.                       70. UCCJEA, section 315 (Role of [Prose-
without having jurisdiction to make a cus-
tody determination. For a recent case, see    54. UCCJEA, section 205(a), and PKPA, 28       cutor or Public Official]).
Stevens v. Stevens, 682 N.E.2d 1309 (Ind.     U.S.C. § 1738A(e).                             71. This statutory authority should re-
Ct. App. 1997).”                              55. UCCJEA, sections 209(a) and (e) pro-       move the threat of civil liability that influ-
                                              tect against disclosure of addresses and       ences many law enforcement decisions in
                                              other identifying information in the plead-    child recovery situations.
                                              ings when disclosure would jeopardize a




                                                                   15
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                       Bulletin                                                                                               NCJ 189181




This Bulletin was prepared under grant number
92–MC–CX–0007 from the Office of Juvenile               Acknowledgments
Justice and Delinquency Prevention, U.S. De-
partment of Justice.                                    This Bulletin was written by Patricia M. Hoff, J.D., a legal consultant on interstate
                                                        and international child-custody, visitation, and parental kidnapping law. She was an
Points of view or opinions expressed in this            advisor to the drafting committee of the UCCJEA on behalf of the ABA Center on
document are those of the author and do not             Children and the Law while serving as Legal Director of the Center’s Obstacles to
necessarily represent the official position or          the Recovery and Return of Parentally Abducted Children Project. The author
policies of OJJDP or the U.S. Department of             gratefully acknowledges the contribution of Janet Heim, J.D., Deputy District
Justice.                                                Attorney, Santa Clara County District Attorney’s Office, who wrote the Bulletin’s
                                                        sidebars on California prosecutors’ long-time involvement in civil child-custody
                                                        enforcement. The author also thanks Linda Girdner, Ph.D., former Director of
 The Office of Juvenile Justice and Delin-
                                                        Research at the ABA Center on Children and the Law and Project Director of the
 quency Prevention is a component of the Of-
                                                        Obstacles Project, for her thoughtful comments on the Bulletin as it was being
 fice of Justice Programs, which also includes
                                                        developed.
 the Bureau of Justice Assistance, the Bureau
 of Justice Statistics, the National Institute of       Points of view or opinions expressed in this document are those of the author and
 Justice, and the Office for Victims of Crime.          have not been approved by the House of Delegates or the Board of Governors of
                                                        the American Bar Association. The views, accordingly, should not be construed as
                                                        representing the official position or policies of the ABA.
                                                        This Bulletin is intended for educational and informational purposes and does not
                                                        constitute legal advice. Readers with specific cases should consult their legal
                                                        counsel.

				
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