"Arizona Child Custody"
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 email@example.com 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 U.S. Department of Justice PRESORTED STANDARD Office of Justice Programs POSTAGE & FEES PAID Office of Juvenile Justice and Delinquency Prevention DOJ/OJJDP PERMIT NO. G–91 Washington, DC 20531 Official Business Penalty for Private Use $300 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.