11/17/1995 Draft and 1968 Act:
Uniform Child Custody Jurisdiction Act (UCCJA)*
UCCJEA = UCCJA + UCVA
UCCJA, approved by all the states, was replaced by the UCCJEA, which has not yet been adopted by all states
D R A F T
FOR DISCUSSION ONLY
UNIFORM CHILD CUSTODY JURISDICTION ACT (199_)
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
November 17, 1995, Draft
UNIFORM CHILD CUSTODY JURISDICTION ACT (199_)
with Prefatory Note and Comments
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
The ideas and
conclusions herein set
drafts of proposed legislation, have not been passed upon by the
DRAFTING COMMITTEE ON
INTERSTATE CHILD VISITATION ACT
MARIAN P. OPALA, Supreme Court, Room 238, State Capitol, Oklahoma City, OK 73105,
DEBORAH E. BEHR, Office of Attorney General, Department of Law, P.O. Box 110300, Juneau, AK 99811
ROBERT N. DAVIS, University of Mississippi, School of Law, University, MS 38677ROBERT L., McCURLEY, JR., Alabama Law Institute, P.O. Box 1425, Tuscaloosa, AL 35486
DOROTHY J. POUNDERS, 47 North Third Street, Memphis, TN 38103
BATTLE R. ROBINSON, Family Court Building, 22 The Circle, Georgetown, DE 19947
HARRY L. TINDALL, 2800 Texas Commerce Tower, 600 Travis Street, Houston, TX 77002
LEWIS V. VAFIADES, P.O. Box 919, 23 Water Street, Bangor, ME 04402
MARTHA LEE WALTERS, Suite 220, 975 Oak Street, Eugene, OR 97401ROBERT G. SPECTOR, University of Oklahoma, College of Law, 300 Timberdell Road, Norman, OK 73019, Reporter
BION M. GREGORY, Office of Legislative Counsel, State Capitol, Suite 3021, Sacramento, CA 95814-4996,
President DAVID PEEPLES, 224th District Court, Bexar County Courthouse, 100 Dolorosa, San Antonio, TX 78205, Chair, Division F
FRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Road, Norman, OK 73019, Executive Director
WILLIAM J. PIERCE, 1505 Roxbury Road, Ann Arbor, MI 48104, Executive Director Emeritus
Copies of this Act may be obtained from:
NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS
676 North St. Clair Street, Suite 1700
Chicago, Illinois 60611
UNIFORM CHILD CUSTODY JURISDICTION ACT (199_)
November 17, 1995, Draft
INTRODUCTORY NOTE: JURISDICTION REVISION
Committee on the Uniform
Act was requested by the Scope and Program Committee to revise the
for home state priority:
The PKPA provides
for full faith and credit only when the custody determination is made by
clarification of emergency
are several problems with the current emergency jurisdiction provision
against another parent or against the child's sibling.
Finally, the UCCJA provides no exception to the notice requirement, or the ban on simultaneous proceeding, in emergency cases.
Therefore, custody orders issued on a temporary emergency basis (e.g., child abuse orders or domestic violence orders of protection), prior to notice being given to all contestants or during the pendency of another custody proceeding in another state, would not currently be enforceable in any other state pursuant to the UCCJA.
contains a separate section
jurisdiction at Section 106 which addresses these issues.
for exclusive continuing
for the decree granting state: The failure of the current UCCJA to
clearly state that
the decree granting state
jurisdiction to modify that decree have resulted in two major problem
interpretations of the UCCJA on
jurisdiction have resulted in conflicting custody decrees. States have
as to how
lasts. Some courts have held that modification jurisdiction continues
contestant leaves the
regardless of how
many years the child has lived outside the state or how tenuous the
to the state
have held that continuing modification jurisdiction ends as soon as the
child's new home
of how significant the child's connections to the decree state remain.
This divergence of
views leads to simultaneous
and conflicting custody orders.
This draft addresses these issues in Section 105.
4. What custody
covered: The definition
of custody proceeding in the UCCJA is ambiguous. Although the intent was undoubtedly to cover all proceedings
access to a child, states have rendered conflicting decisions regarding
certain types of
proceedings. There is no general
whether the UCCJA applies to neglect, abuse, dependency, wardship, guardianship, termination of parental
and protection from domestic violence proceedings.
The definition of custody proceeding has been modified to specify what proceeding are covered under the Act and which are excluded. This amendment while desirable is not necessary to conform the UCCJA to federal enactments.
5. Applicability to Native Americans: It is currently unclear whether Native American tribes are intended to be included under the definition of "state." This ambiguity creates uncertainty whether child custody determinations made by Native American tribal courts are ever entitled to enforcement under the UCCJA and whether Native American tribal authorities are obliged to enforce state court determinations. Currently some states have enacted statues exempting from UCCJA coverage all proceedings that would fall under the Indian Child Welfare Act. Others disagree.
draft makes it clear that
judicial systems are included in the Act. This clarification, while
is not necessary
to confirm the UCCJA to federal
6. Role of
"Best Interests:" The
of the UCCJA was designed to promote the best interests of the children
custody was in question by
abduction and providing that, in general, the state with the closest connections to and the most evidence
regarding a child
should decide that child's custody. The "best interest" language in the
sections of the Act was not
to be an invitation to include discussion of the merits of the custody
dispute in the jurisdictional
determination or to
that "best interests" considerations should override jurisdictional
to provide an additional jurisdictional
eliminates the term "best
order to establish clarity between the jurisdictional standards and the
7. Other Changes: This draft also makes a number of additional amendments to the UCCJA as pointed out in the comments to
those sections. These changes are not necessary to conform the Act to federal statutes. The Drafting Committee will need to decide whether such changes are or are not authorized by the Scope and Program Committee.
INTRODUCTORY NOTE: ENFORCEMENT PROVISIONS
Article II of
the present draft
contains the custody
enforcement remedy as originally set out in the provisions of earlier
financial support, state
borders have become
the biggest obstacle to enforcement of state policies designed to
currently no uniform method of
and visitation orders validly entered in another state. As documented
by the ABA Center
and the Law's
to the Recovery and Return of Parentally Abducted Children
Obstacles Study pointed out, the
lack of specificity
in enforcement procedures has resulted in the law of enforcement
in different jurisdictions. In
it might be common practice to file a Motion to Enforce or a Motion to
Grant Full Faith
and Credit to initiate an
In another a writ of habeas corpus or a citation for contempt might be commonly used. In some
also may be utilized. All of these enforcement procedures differ in
While many states
tend to limit
in enforcement proceedings to whether the court which issued the decree
to make the custody
broaden the considerations to a scrutiny of whether enforcement would
in the best
interests of the child.
uniformity complicates the
in several ways: (1) It increases the costs of the enforcement action
All of the
difficulties inherent in the
lack of uniformity
for visitation orders also apply to the custody part of the same order.
Jurisdiction Act defined
visitation as an aspect of custody. The American Bar Association's
Family Law Section
requesting the drafting
committee to include provisions addressed to both custody and
drafting committee, at
that this article should cover enforcement of all aspects of the
The title of
the Act is not
However, the term "custody determination" is used to describe what is
of Article II reflect
taken by the drafting committee. The Act severely restricts the time
extremely important when
are at issue. If visitation rights cannot be enforced quickly, they
The draft also
provides that the
will be able to exercise extraordinary remedies. If the enforcing
The scope of
the enforcing court's
inquiry is limited
to the issue of whether the decreeing court had subject matter
ARTICLE ONE. JURISDICTION
SECTION 101. PURPOSES OF ACT.
(a) The general purposes of this Act are to:
and conflict with
courts tribunals of other States in matters of child custody which have
in the past
resulted in the shifting of children
to state with harmful effects on their well-being;
cooperation with the courts
other States to the end that a custody decree is rendered in that State
which can best
decide the case in the interest of
(3) Assure that
the custody of
a child take place ordinarily in the State with which the child and his
family have the
closest connection and where
concerning his care, protection, training and personal relationships is
available, and that courts of this
the exercise of jurisdiction when the child and his family have a
with another state;
controversies over child
custody in the interest of greater stability of home environment and of
(5) (4) Deter
abductions of children;
and other unilateral
removals of children undertaken to obtain custody awards;
(6) (5) Avoid relitigation of custody
other States in this State; insofar as feasible;
(7) (6) Facilitate the enforcement of custody decrees of other States;
(8) (7) Promote and expand the exchange
and other forms of mutual assistance between the courts tribunals of
this State and
those of other
same child; and
(9) (8) Make uniform the law of those States which enact it.
(b) This [Act]
shall be construed to
promote the general
purposes stated in this section.
While there are
many issues that need
to be addressed
in revising the UCCJA, the authority of the Drafting Committee is, as I
it, to make some very specific
to conform the Act to federal statutes. Most uniform acts do not
a statement of
purpose. However, the
purposes of the
Act are generally laudatory and there is no major reason for deleting
Subsection (3) has, however, been deleted. The thrust of this revision is to further restrict child custody jurisdiction. Under this Act it will normally be clear where child custody jurisdiction is located. Subsection (3) was designed as an interpretive canon to help courts decide between two states with concurrent jurisdiction. It should not be necessary in this revision. In enacting the PKPA Congress approved of the purposes of the UCCJA, except for Subsection (3).
In amending the
UCCJA to conform to the PKPA the subsection should be eliminated.
has been modified in
the Committee decision. One of the purposes of the UCCJA should be to
discourage the abduction of
the reason. Note: This change is not necessary to conform the UCCJA to
the PKPA or other
has been modified by
striking the final
clause. Avoiding relitigation should always be a major goal. Note: This
change is not
necessary to conform the UCCJA to
SECTION 102. DEFINITIONS. In this [Act]
(1) "Child" means a person under the age of eighteen;
(2)"Contestant" means a person,
including a parent,
who claims a right to custody of or visitation rights with respect to a
child under State
tribunal providing for the custody of a child, including visitation rights. It includes permanent, temporary, initial and modification
orders. The term does not include a decision relating to parentage, child support or any other monetary obligation of any individual.
3. (4) "Custody proceeding" includes means a proceeding in which a custody determination is one of an several issue s, and includes such as an action for a proceeding involving [adoption], divorce, or separation, and includes child neglect, abuse, or dependency, wardship, guardianship, termination of parental rights, or protection from domestic abuse. Actions regarding status offenses, juvenile delinquency and emancipation are not custody proceedings.
4. (5) "Decree"
or "custody decree"
means a custody
determination contained in a judicial decree or in a custody
and includes an
5. (5). "Home
state" means the State in
which the child
immediately preceding the time involved lived with parents, a parent,
a person acting as
parent, for at least six
months, and in the case of a child less than six (6) months old, the
in which the child
lived from birth with any
of the persons
mentioned. Periods of temporary absence of any of the named persons are
as part of the six-month or other
"Initial" decree means the
first custody decree
or determination concerning a particular child;
state" or "issuing
tribunal" means the
State or the tribunal which decided a custody determination for which
sought under this [Act]
8 (9) "Physical custody" means actual possession and control of a the child;
9. (10) "Person
acting as parent" means
a person, other
than a parent and including state agencies, who has physical custody of
a the child or has
had physical custody for a
three months within two years of the filing of the custody proceeding
who has either
been awarded custody
by a court or
right to custody;
"State" means any a State,
territory or possession
of the United States, the District of Columbia, the Commonwealth of
means a court, agency,
or other entity
authorized to establish, enforce, or modify a custody determination.
of this State" means the
[court, administrative agency, quasi- judicial entity, or combination].
means an order issued by
authorizing law enforcement officers to detain a child.
The UCCJA did
not contain a definition
The definition here is taken from the PKPA and is part of the process
of conforming the
UCCJA to the
determined to abandon an attempt to define a child functionally as one who was subject of a custody proceeding.
Such a definition
resulted in including adult guardianships in the Act which is not
committee determined to
use the word "person"
instead of "individual" in the definition of contestant. This was to facilitate UCCJA coverage of cases where
custody of a child is given to a state agency in, for example, a child
The use of the term
raise doubts about the applicability of the Act in juvenile cases.
definition of the term "contestant"
the term "person." The phrase "under State law" has been added to
this Act does not confer any
rights. Only those persons authorized to seek custody or visitation
State law may be
considered a contestant. Note:
"contestant" as defined in the PKPA does not include this phrase. It's
inclusion in the
Act does not create a conflict with
The federal statute cannot give any state law substantive rights.
this clause is not
required by any federal
determination" is expanded
from the prior version. It closely tracks the PKPA definition. The
of "custody proceeding"
has been slightly
expanded from the comparable definition in the UCCJA. These proceedings
adjudicated to be the
type of proceeding
to which the UCCJA and PKPA are applicable. There are however some contrary holdings. See e.g.,
P.2d 647 (Colo. 1995) (juvenile neglect proceedings are not "custody
the PKPA). The list of
controversy about the types of proceedings where a custody
can occur. Decrees
of any of
access to the child are subject to this Act. The inclusion of
proceedings is necessary
passage of the Violence Against Womens Act, 18 U.S.C. 2265 (Full Faith
and Credit for
have been bracketed. If a state adopts the jurisdictional provisions of
Adoption Act, that
proceedings. Juvenile delinquency, status offender or emancipation proceedings are not "custody
they do not relate to civil aspects of access to a child. Hague
have not been
included at this
custody of the child is not determined in a proceeding under
Act. It will
have to be
included at a later point so that Hague proceedings are subject to the
of the original UCCJA
and "custody decree" has been eliminated as duplicative of the
determination." Note this change
is not required
to conform the UCCJA to federal enactments.
"issuing state" is borrowed
from UIFSA. There
it refers to the tribunal that issued the support or parentage order.
"person acting as parent" has been redefined in accordance with the
decision at the last meeting of the drafting
SECTION 103. RELATIONSHIP TO OTHER PROCEEDING.
(a) A custody
proceeding which pertains to an Indian child as defined in the Indian
Child Welfare Act, 25 U.S.C. section
1901 et seq. is not subject to this [Act] to the extent that
it is governed by the Indian Child Welfare Act, 25 U.S.C. section 1901
sections et seq..
[(b) An adoption proceeding is governed by the [Uniform Adoption Act.]]
proceedings must be treated separately. First in cases governed by the
Indian Child Welfare Act, the
jurisdictional requirements of that statute take
precedence. Second, in States that adopt the Uniform Adoption Act, the
requirements of that Act should govern.
If the State does not adopt the Uniform Adoption Act, the
jurisdictional scheme of this Act will
is placed in brackets.
SECTION 3 104. INITIAL JURISDICTION.
(a) Subject to Section 106, a court tribunal of this State which is competent to decide child custody matters has jurisdiction to make an initial child custody determination by initial or modification decree only if:
(1) this State:
is the home
State of the child at
the time on the
date of the commencement filing of the proceeding,
(ii) had been the child's home State within six (6) months before the date of the filing commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
(2) It is in the best interest of the child that a court of this state assume jurisdiction because No State has jurisdiction under paragraph(1) or the child's home State has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under Section 110 and (i) the child and his the child's parents, or the child and at least one contestant, have a significant connection with this State, other than mere physical presence, and (ii) there is available in this State substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or
(3). The child is physically present in this State and:
(ii) the child has been abandoned, or
(ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(4) (3) It appears that No other State would have jurisdiction under prerequisites substantially in accordance with paragraphs (1) or (2), or 3 of this subsection, or another State has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child under Section 110. and
b. it is in the best interest of the child that this court assume jurisdiction.
under paragraphs 3 and 4 of subsection(a) Physical presence in this
State of the child, or of the child and one
of the contestants, is not alone sufficient to confer jurisdiction on a
court tribunal of this State to make a child custody determination.
C. (c) Physical
presence of the child, while desirable, is not a prerequisite for
jurisdiction to make a custody determination.
The basic UCCJA
jurisdiction section has been modified
in several ways. It now applies only to the initial custody
home state provision has been modified, in accordance with the decision
of the drafting committee, to apply
whenever the child has left the state and a parent or person
acting as a parent remains. It is no longer necessary to determine why
the child has been removed. The only inquiry relates to
the status of the person left behind. Note: This change provides a
than the PKPA. The
PKPA requires a determination that the child has been removed by a
contestant or for other reasons.
connection jurisdiction is amended in three ways. First, it eliminates
the "best interest" language. This phrase
tended to create confusion between the jurisdictional issue
and the substantive custody determination. Since the language was not
necessary for the jurisdictional
determination, it has been removed.
The removal of the language is not necessary to conform the UCCJA to
any federal enactment. The
section also prioritizes home state jurisdiction in the same manner as
the PKPA. Note: This
prioritization is necessary to conform the UCCJA to the PKPA.
connection state may assume jurisdiction
when the home state decides that significant connection state would be
the most appropriate forum under the section
on forum non conveniens. In addition, the determination of significant
connections has been changed to eliminate the language of "present
or future care." The jurisdictional determination should be made by
determining whether there is sufficient evidence in
the state for the court to make an informed custody determination. That
might relate to
the recent past as well
as "present or future." In accordance with the decision of the drafting
clause and the "evidence" clause of the original draft
have been merged into one sentence. The ellimination of the "present or
care" language is not required by any
jurisdiction has been moved to a separate section. This is to make it
clear that the power to protect a child in
crisis does not give the power to enter a permanent
order for that child.
SECTION 105. CONTINUING JURISDICTION.
Section 106, a tribunal of
this State which
has made a child custody determination consistent with the provisions of
(a) as long as this
State remains the
residence of the child, or any party and
(1) a tribunal of this State determines that this State continues to be the home state of the child, or (2) a tribunal of this State determines the child and one party has a significant connection with this State and there is present in this State substantial evidence concerning the child's care, protection, training and personal relationships. or
(b) until each
party has filed written consent with
the tribunal for a tribunal of another State with subject matter
This is a new
section addressing continuing jurisdiction.
Continuing jurisdiction was not specifically addressed under the
original UCCJA. Its absence caused considerable
confusion. This section borrows from UIFSA as well as recent UCCJA case
law and makes the continuing
jurisdiction of the original decree state exclusive so long one party
remains in the state and that
state determines that it has either home state jurisdiction
or significant connection jurisdiction. The term "party" is used
"contestant" or "person acting as a parent"
since all persons with an interest in the original custody
determination will have been joined
under the provisions of Section 113.
The use of the
phrase "a tribunal of this State determines" has been included to make
it clear that the original decree state is
the sole determinant of whether jurisdiction
continues. A party seeking to modify a custody determination must
obtain an order from the original
decree state unless
all parties and the child have left that state or the parties agree on
another state to exercise
jurisdiction over the custody determination.
with the majority of UCCJA case law, the state with continuing
exclusive jurisdiction may relinquish it in
provisions of this
section are narrower than the comparable provisions of the PKPA. That
jurisdiction so long
"contestant" remains in the original decree state and that state
to have jurisdiction
under its own
concerns the problem of
proceedings in the state with exclusive continuing jurisdiction and
SECTION 106. TEMPORARY EMERGENCY JURISDICTION.
(a) Notwithstanding any other provision of this Act, a tribunal that is competent to make a child custody determination may make a temporary child custody order if the child is present in the State, and
(1) the child has been abandoned, or
(2) it is necessary to protect the child because the child, the child's sibling or the child's parent is subject to imminent mistreatment or abuse.
(b) A tribunal
proceeding under this
section may waive
the notice requirements of this [Act] and issue a temporary emergency custody order. After issuing
the order the
shall require the defendant be notified and shall hold a hearing within
five days to determine
(c) No tribunal
shall issue a final
custody order under
this section. The tribunal shall require the person seeking the order
file in the state
under Section 104
of this State shall
enforce a temporary
custody order issued by another State under statutory provisions
(1) until it is superseded by an order from a tribunal with jurisdiction under Section 104 or 105; or
(2) for [number] days if no custody proceeding has been commenced in a state with jurisdiction under Section 104 or 105, whichever is shorter.
The problem of
questions involved in revising the UCCJA to conform it to federal
recognizes several aspects
of what has
become common practice under the UCCJA. First, a court may take
protect the child even
though it could
home state nor significant connection jurisdiction. Second, the duties
of states to
recognize, enforce and
not modify a
of another state do not take precedence over the need to enter an emergency order to protect
determinations made under the emergency jurisdiction provisions must be
issued under this section must include a direction to the parties to
a petition in the
104 or 105 and that the order expire on its own after a period of time.
also provides for the
issuance of ex parte
emergency custody decrees. There is no provision for the issuance and recogni- tion of an ex parte
However, emergency protective orders, both ex parte and bilateral, are
required to be
given full faith and
with 18 U.S.C. 2265 (Violence Against Women Act). Since those
provisions on custody
it is necessary to address this issue in a revised UCCJA.
NOTICE AND OPPORTUNITY TO
Subject to Section 106, before making a custodydetermination decree under this [Act], reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of the child. If any of these persons is outside this State, notice and opportunity to be heard shall be given pursuant to Section 108 of this [Act].
This section is
subject to the section
Emergency Jurisdiction. It provides an exception to the notice and
for ex parte
such a provision, an ex parte order would not be entitled to
to this act.
Federal law now
victim protection orders be granted full faith and credit. 18 U.S.C.A.
2265. Since a victim
protection order can
be a custody
and can be granted without notice and hearing in an emergency, there
be provision in a
act for a narrow exception to the notice requirement.
SECTION 108. NOTICE TO PERSONS OUTSIDE THE STATE.
required for the exercise of
over a person outside this State shall be given in a manner reasonably
calculated to give
actual notice, and may
delivery outside this
State in the
manner prescribed for service of process within this State;
manner prescribed by the law
of the place
in which the service is made for service of process in that place in an
action in any of
its courts of general
by any form
of mail addressed to
the person to
be served and requesting a receipt; or
(4) as directed by the court, tribunal including publication, if other means of notification are ineffective.
under this section shall be
delivered or last published at least [10, 20] days before any hearing
(c) Proof of
service outside this State
may be made
by affidavit of the individual who made the service, or in the manner
(d) Notice is
not required if a person
submits to the
jurisdiction of the court tribunal.
No substantive changes were made to this section.
SECTION 109. SIMULTANEOUS PROCEEDINGS.
(a) Subject to
Section 106, a court
tribunal of this
State shall not exercise its jurisdiction under this [Act] if at the
of filing the
(b) Before hearing the petition in a custody proceeding the court tribunal shall examine the pleadings and other information supplied by the parties under Section 112 of this [Act] and shall consult the child custody registry established under Section 117 of this [Act] concerning the pendency filing of proceedings with respect to the child in other States. If the court tribunal has reason to believe that proceedings may be pending in another State it shall direct an inquiry to the State court administrator or other appropriate official of the other State.
(c) If the court tribunal is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending filed in another State before the court tribunal assumed jurisdiction, it shall stay the proceeding and communicate with the court tribunal in which the other proceeding is pending has been filed to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with Sections 119 through 121 of this [Act]. If a court tribunal of this State has made a custody decree before being informed of a pending the filing of a proceeding in a court tribunal of another State, it shall immediately inform that court tribunal of the fact. If the court is informed that a proceeding was commenced in another State after it assumed jurisdiction it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum.
(d) Communication with other tribunals should be made in a manner which allows the parties to participate. Methods of participation may include: having the parties or their attorneys on the telephone during a conference call between the tribunals, having the parties or their attorneys join in on-line or other electronic communication between tribunals, or by allowing the parties or their attorneys to present facts and legal arguments to the tribunals before a final determination of the appropriate forum is made.
(e) A record
shall be made of the
record may include: the notes or transcripts of a court reporter who
This section is subject to the section on Temporary Emergency Jurisdiction. A court can always take jurisdiction to protect a child even if a custody proceeding is pending in another State that is exercising jurisdiction under this Act.
This section clarifies the role of the tribunals when there is simultaneous proceedings. Rather than the first-to-file rule of the UCCJA, this section, in combination with section 104, requires a "significant connection" State to defer to the state with home state jurisdiction. Note: This change is required to conform the statute to the PKPA. The first to file rule is utilized only to decide between two States with "significant" connection jurisdiction.
The second change eliminates the term "pending". It has caused considerable confusion in the case law. It has been replaced with the term "filing" as more accurately reflecting the policy behind this section. Note: This change is not required to conform the UCCJA to federal statutes.
The remaining subsections continue to stress the role of judicial communications under the Act. One new subsection has been added to increase the role of the parties in the communication process. A tribunal should communicate with another tribunal in a manner which allows the parties to participate. In any event a record of the communication must be made. Communications between judges that affect the substantive rights without participation by the parties, raises due process and ethical concerns. See the discussion in Nebraska ex rel Grape v. Zach, 21 Fam.L.Rep. 1101 (Neb.Sup.Ct. 1994). There has been some concern that the methods of communication and making a record are not specifically set out in the text. The final subsections will, hopefully, meet those concerns. Note: These additional sections are not necessary to conform the act to federal statutes.
SECTION 110. INCONVENIENT FORUM.
(a) A court
tribunal which has
jurisdiction under this
[Act] to make an initial or modification decree may decline to exercise
(b) A finding of inconvenient forum may be made upon the court's tribunal's own motion or upon motion of a party or a guardian ad litem or other representative of the child.
(c) In determining if it is an inconvenient forum, the court tribunal shall consider if it is in the interest of the child that another State assume jurisdiction. For this purpose, it may take into account the following factors, among others:
(1) If another State is or recently was the child's home State;
(2) If another State has a closer connection with the child and his the child's family or with the child and one or more of the contestants;
(3) If substantial evidence concerning the child's present or future care, protection, training and personal relationships is more readily available in another State;
(4) If the parties have agreed on another forum which is no less appropriate; and
(5) If the exercise of jurisdiction by a court tribunal of this State would contravene any of the purposes stated in Section 1 of this[Act].
(d) Before determining whether to decline or retain jurisdiction the court tribunal may communicate with a court tribunal of another State and exchange information pertinent to the assumption of jurisdiction by either court tribunal with a view to assuring that jurisdiction will be exercised by the more appropriate court tribunal and that a forum will be available to the parties.
(e) If the court tribunal finds that it is an inconvenient forum and that a court tribunal of another State is a more appropriate forum, it may dismiss the proceedings, or it may shall stay the proceedings upon condition that a custody proceeding be promptly commenced in another named State or upon any other conditions which may be just and proper, including the condition that a moving party stipulate his consent and submission to the jurisdiction of the other forum.
(f) The court
tribunal may decline to
jurisdiction under this act if a custody determination is incidental to
an action for
(g) If it appears to the court tribunal that it is clearly an inappropriate forum it may shall require the party who commenced the proceedings to pay in addition to the costs of the proceedings in this State, necessary travel and other expenses, including attorneys' fees, incurred by other parties or their witnesses, unless the party who commenced the proceeding establishes that such order would be clearly inappropriate. Payment is to be made to the clerk of the court for remittance to the proper party.
(h) Upon dismissal or stay of proceedings under this section the court tribunal shall inform the court tribunal found to be the more appropriate forum of this fact or, if the court tribunal which would have jurisdiction in the other State is not certainly known, shall transmit the information to the court administrator or other appropriate official for forwarding to the appropriate court tribunal.
communication received from
another State informing
this State of a finding of inconvenient forum because a court tribunal
This section generally retains the focus of the original section. It authorizes tribunals to decide that another State could do a better job of making the custody determination. If so the tribunal may defer to the other State. However, under this section the tribunal may not simply dismiss the action. To do so would leave the case in limbo. Rather the tribunal shall stay the case and direct the parties to file in the State that has been found the be the more convenient forum. Note: This change is not necessary to conform the UCCJA to federal statutes.
amendment occurs in
subsection (g). The
attorney fee standards are now patterned after the International Child
SECTION 111. JURISDICTION DECLINED BY REASON OF CONDUCT.
(a) Subject to
Section 106, a tribunal
to exercise the jurisdiction provided in Section 104 and 105 if the
purposes of this Section, the
removal or retention
of a child is to be considered wrongful where it is in breach of rights
(a) If the
petitioner for an initial
decree has wrongfully
taken the child from another State or has engaged in similar
(b)Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another State if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another State the court may decline to exercise its jurisdiction if this is just and proper under the circumstances.
(c) A tribunal
is not required to
decline to exercise
its jurisdiction under this Section if more than one year has elapsed
appropriate cases, A court
dismissing a petition
under this section may shall charge the petitioner with necessary
has been substantially
original UCCJA section authorized so much judicial discretion that it's
This section is subject to the section on temporary emergency orders. If the child is in need of protection, the petitioner's conduct is no longer egregious.
Subsection (c) was suggested at the July drafting committee meeting. It would limit the requirement that the court decline to exercise jurisdiction if over one years has elapsed since the wrongful removal or retention. The tribunal could, as a matter of discretion, decline the hear the case, but it would not be required to do so.
subsection has been amended
to conform the
attorney fees and costs section to the International Child Abductions
SECTION 112. INFORMATION TO BE SUBMITTED TO THE COURT
(a) In a custody proceeding, every party's first pleading, Every party in a custody proceeding in his first pleading or in an affidavit attached to that pleading shall give information under oath as to the child's present address, the places where the child has lived within the last five (5) years, and the names and present addresses of the persons with whom the child has lived during that period. This pleading or affidavit shall state whether the party: In this pleading or affidavit every party shall further declare under oath whether:
(1) He has participated, as a party, witness, or in any other capacity, in any other litigation concerning the custody of the same child in this or any other State;
(2) He has information of any custody proceeding concerning the child pending in a court tribunal of this or any other State; and
(3) He knows of any person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child.
(b) If the declaration as to any of the above items is in the affirmative the declarant shall give additional information under oath as required by the court tribunal. The court tribunal may examine the parties under oath as to details of the information furnished and as to other matters pertinent to the court's tribunal's jurisdiction and the disposition of the case.
(c) Each party has a continuing duty to inform the court tribunal of any custody proceeding concerning the child in this or any other State of which he the party obtained information during this proceeding.
(d) Upon a finding, which may be made ex parte, that the health, safety or liberty of a party or a child would be unreasonably put at risk by the disclosure of identifying information, or if an existing order so provides, a tribunal shall order that the address of the child or party or other identifying information not be disclosed in a pleading or other document filed in a proceeding under this [Act]. The information shall be provided to the tribunal.
requirements from the
UCCJA are carried
over into this revision. A separate section has been added to protect
SECTION 113. ADDITIONAL PARTIES. If the court tribunal learns from information furnished by the parties pursuant to Section 11 112 of this [Act] or from other sources that a person not a party to the custody proceeding has physical custody of the child or claims to have custody or visitation rights with respect to the child, it shall order that person to be joined as a party and to be duly notified of the joinder and pendency of the proceeding, and of his joinder as a party. A joined party located outside this State shall If the person joined as a party is outside this State he shall be served with process or otherwise notified in accordance with Section 5 108 of this [Act].
No major changes have been made to this section.
SECTION 114. APPEARANCE OF PARTIES AND CHILD.
(a) The court
tribunal may order any
party to the proceeding
who is in this State to appear personally before the court tribunal. The
(b) If a party
to the proceeding whose
desired by the court tribunal is outside this State with or without the
(c) If a party to the proceeding who is outside this State is directed to appear under subsection (b) or desires to appear personally before the court tribunal with or without the child, the court tribunal may require another party to pay to the clerk of the court travel and other necessary expenses of the party so appearing and of the child if this is just and proper under the circumstances.
No major changes have been made to this section.
SECTION 115. BINDING FORCE OF CUSTODY DECREE. A custody decree rendered by a court tribunal of this State which had jurisdiction under Section 3 of this [Act] binds all parties who have been served in this State or notified in accordance with Section 108 of this act or who have submitted to the jurisdiction of the court tribunal, and who have been given an opportunity to be heard. As to these parties the custody decree is conclusive as to all issues of law and fact decided and as to the custody determination made, unless and until that determination is modified pursuant to law, including the provisions of this [Act].
No major changes have been made to this section.
SECTION 13. ENFORCEMENT AND NON-MODIFICATION OF DECREE OF ANOTHER STATE. The court of this State shall recognize and enforce an initial or modification decree of a court of another State which had assumed jurisdiction under statutory provisions substantially in accordance with this act or which was made under factual circumstances meeting the jurisdictional standards of the act, so long as this decree has not been modified in accordance with jurisdictional standards substantially similar to those of in accordance with this act.
This section has been eliminated. It is duplicated by the first section of the enforcement provisions. However, if it is decided that the enforcement provisions are to be a stand-alone act, then this section will be added back.
SECTION 14 116. MODIFICATION OF DECREE OF ANOTHER STATE.
A. If A court tribunal of another State has made a custody decree, a court tribunal of this State shall not modify that decree unless:
1. It appears to the court tribunal of this State that the court tribunal which rendered the decree does not now have jurisdiction underjurisdictional prerequisites substantially in accordance with this act or has declined to assume jurisdiction to modify the decree; and
2. The court tribunal of this State has jurisdiction.
(a) Subject to the provisions of Section 106, a tribunal of this State shall not modify a custody determination of the same child made by a tribunal of another State, unless
(1) that State no longer has jurisdiction under Section 105, and
(2) this State has jurisdiction under Section 104.
(b) A tribunal of this State may issue a temporary order enforcing a visitation schedule that deviates from the terms of the original schedule. The order shall be effective for no more than  of days. If necessary, the tribunal shall require the petitioner to file for a permanent modification in the State with continuing exclusive jurisdiction under Section 105.
(b) (c) If a court tribunal of this State is authorized under subsection (a) to modify a custody decree of another State it shall give due consideration to the transcript of the record and other documents of all previous proceedings submitted to it in accordance withSection 124.
probably should be moved to
section on continuing jurisdiction. It correlates to Section 105.
than set out the
converse of the
conditions in that
it is simply incorporated by reference. If any of the conditions of
modification the original
state will have
to relinquish jurisdiction. Ordinarily that would occur when the
authorizes a court to
issue a temporary
order if it is necessary to enforce visitation rights without violating
the rules on
SECTION 15. FILING AND ENFORCEMENT OF CUSTODY DECREES OF OTHER STATES
certified copy of a custody
decree of another
State may be filed in the office of the clerk of any district court of
(b) A person violating a custody decree of another State which makes it necessary to enforce the decree in this State may be required to pay necessary travel and other expenses, including attorneys' fees, incurred by the party entitled to the custody or his witnesses.
has been deleted. The
will be covered in Article II, which is the current draft of UICVA. In
SECTION 16 117.
CHILD CUSTODY REGISTRY
The clerk of
each district court tribunal shall maintain a registry in which he
copies of custody decrees
of other States
received for filing;
(b) communications as to the pendency of custody proceedings in other States;
(c) Communications concerning a finding of inconvenient forum by a court tribunal of another State; and
(d) other communications or documents concerning custody proceedings in another State which may affect the jurisdiction of a court tribunal of this State or the disposition to be made by it in a custody proceeding.
We need to
discuss whether to retain
of the custody registry. In many counties the registry simply does not
exist or is
SECTION 17 118. CERTIFIED COPIES OF CUSTODY DECREE. The clerk of the district court tribunal of this State, at the request of the court tribunal of another State or at the request of any person who is affected by or has a legitimate interest in a custody decree, shall certify and forward a copy of the decree to that court tribunal or person.
No major changes have been made to this section.
SECTION 18. 119 TAKING TESTIMONY IN ANOTHER STATE. In addition to other procedural devices available to a party, any party to the proceeding or a guardian ad litem or other representative of the child may adduce testimony of witnesses, including parties and the child, by deposition or otherwise, in another State. The court tribunal on its own motion may direct that the testimony of a person be taken in another State and may prescribe the manner in which and the terms upon which the testimony shall be taken.
No major changes have been made to this section.
SECTION 19 120. HEARINGS AND STUDIES IN ANOTHER STATE.
(a) A court tribunal of this State may request the appropriate court tribunal of another State to hold a hearing to adduce evidence, to order a party to produce or give evidence under other procedures of that State, or to have social studies a custody evaluation made with respect to the custody of a child involved in proceedings pending in the court tribunal of this State; and to forward to the court tribunal of this State certified copies of the transcript of the record of the hearing, the evidence otherwise adduced, or any social studies custody evaluation prepared in compliance with the request. The cost of the services may be assessed against the parties or, if necessary, ordered paid by the [County, State].
(b) A court tribunal of this State may request the appropriate court tribunal of another State to order a party to custody proceedings pending in the court tribunal of this State to appear in the proceedings, and if that party has physical custody of the child, to appear with the child. The request may state that travel and other necessary expenses of the party and of the child whose appearance is desired will be assessed against another party or will otherwise be paid.
No major changes have been made to this section. The term "social study" is dated. It has been replaced with the modern term: "custody evaluation." The change in terminology is not required by any federal statute.
SECTION 20 121. ASSISTANCE TO TRIBUNALS OF OTHER STATES.
(a) Upon request of the court tribunal of another State the court tribunals of this State which are competent to hear custody matters may order a person in this State to appear at a hearing to adduce evidence or to produce or give evidence under other procedures available in this State or may order social studies a custody evaluation to be made for use in a custody proceeding in another State. A certified copy of the transcript of the record of the hearing or the evidence otherwise adduced and any social studies custody evaluation prepared shall be forwarded by the clerk of the court tribunal to the requesting court tribunal.
(b) A person within this State may voluntarily give his testimony or a statement in this State for use in a custody proceeding outside this State.
(c) Upon request of the court tribunal of another State a competent court tribunal of this State may order a person in this State to appear alone or with the child in a custody proceeding in another State. The court tribunal may condition compliance with the request upon assurance by the other State that travel and other necessary expenses will be advanced or reimbursed.
changes have been made to this
term "social studies has been replaced with "custody evaluation" as in
SECTION 21 122. PRESERVATION OF DOCUMENTS. In any custody proceeding in this State the court tribunal shall preserve the pleadings, orders and decrees, any record that has been made of its hearings, social studies custody evaluations, and other pertinent documents until the child reaches eighteen (18) years of age. Upon appropriate request of the court tribunal of another State the court tribunal shall forward to the other court tribunal certified copies of any or all such documents.
No major changes have been made to this section.
SECTION 22 123.
REQUESTS FOR COURT
RECORDS FROM ANOTHER
STATE If a custody decree determination has
been rendered in another
concerning a child
involved in a custody proceeding pending in a court tribunal of this
the court tribunal
of this State
of the case shall request of the court tribunal of the other State a
No major changes have been made to this section.
SECTION 23 124.
APPLICATION OF ACT. The
general policies of this [Act] extend to the international area. The provisions of this
relating to the
recognition and enforcement of custody decrees of other States apply to
in nature to custody institutions rendered by appropriate authorities
other nations if
opportunity to be
heard were given to all affected persons.
changes have been made to this
has been a suggestion that the provisions of this section be changed to
SECTION 24 125.
PRIORITY Upon the
request of a party
to a custody proceeding which raises a question of existence or
No major changes have been made to this section.
ARTICLE 2. ENFORCEMENT
SECTION 201. DUTY TO ENFORCE.
(a) A tribunal
of this State shall
recognize and enforce
a custody determination of another State which had assumed jurisdiction
this [Act] or which was made under factual circumstances meeting the
Article applies to proceedings
determinations made under the Hague Convention on the Civil Aspects of
Article does not confer
a tribunal of this State to modify a custody determination of the
tribunal may extend the time
for filing any
pleading under this Article for good cause shown.
begins the incorporation
of the material
on the Interstate Child Visitation Enforcement Act. Subsection (a) is
applies the enforcement
by this Act applicable to orders requiring the return of a child issued
authority of the
Remedies Act, 42 U.S.C. 11601 et seq. implementing the Hague Convention
on the Civil
specific section was thought necessary because even though an ICARA proceedings often occurs
prior to any
determination, the need for a speedy enforcement remedy is just as
makes it clear that the
enforcement of a custody determination does not authorize a
of that custody
Whether such a
necessary in light of the provisions on continuing jurisdiction and
questionable. However, it
included here to emphasize that whether a tribunal may modify a custody
is governed by
sections and the
PKPA, 28 U.S.C. 1738A(f).
has been moved to this
to the Drafting Committee's determination to have this provision apply
to the entire
SECTION 202. LIMITED IMMUNITY OF PETITIONER.
Participation by a petitioner in a
enforce a custody determination in this State, whether in person or by
an attorney, does
not confer personal
for purposes of other proceedings.
(b) A person is
not amenable to service
solely by being physically present in this State for the purpose of
(c) The immunity granted by this section does not extend to civil litigation based on acts unrelated to the participation in a proceeding under this [Act] committed by a party while present in this State.
This section is
derived from UIFSA 314.
A person who
files an enforcement action under this Act is not subjected to the
However, as the comments to UIFSA note, the immunity provided is limited. It does not provide immunity for civil litigation unrelated to the enforcement action. For example, a party to an enforcement action is not immune from service for an automobile accident occurring while in the state.
SECTION 203. SIMULTANEOUS PROCEEDINGS.
(a) Subject to Section 106, when a proceeding to enforce a custody determination has been filed in this State, the tribunal shall inquire of the parties whether a proceeding to modify the determination has been filed in another state. If a proceeding has been filed in another State, the tribunal shall immediately communicate with the tribunal in which the proceeding is filed in order to avoid unnecessary litigation.
(b) The communication shall be governed by Section 109 (d)(e) of this [Act].
shall take precedence
over a modification action. However, communication between the
The process of communication is set out in Section 109.
SECTION 204. PLEADINGS.
(a) All pleadings under this [Act] shall be verified and shall attach certified copies of all orders sought to be enforced.
(b) The pleading seeking enforcement shall state:
(1) whether the tribunal which issued the custody determination identified the jurisdictional basis it relied upon in exercisingjurisdiction, and, if so, what it was;
(2) whether the custody determination for which enforcement is sought has been stayed, vacated, or modified by a tribunal having jurisdiction to do so under Section 105 and 116;
(3) whether the respondent was notified and given an opportunity to be heard in the proceeding that resulted in the custody determination sought to be enforced;
(4) whether any proceeding is pending which could affect the current enforcement proceeding, including proceedings relating to domestic violence and orders of protection;
(5) subject to the provisions of Section 112(d), the present address of the child and the respondent, if known; and
(6) the relief sought.
petitioner shall attach to the
pleading a Show
Cause Order. The Order shall inform the respondent that the requested
relief will be
granted unless the
files an answer
with  calendar days. The Show Cause Order shall inform the
that a hearing
will be held at a
than fourteen calendar days following service of notice and that costs
and fees may be assessed.
are intended to provide
the tribunal with
as much information as possible. Attaching certified copies of all
sought to be
enforced allows the
tribunal to have
information. While, in theory, the determination may be registered with
the state UCCJA
states have not
the registry. Therefore while registration of the decree could be
considered as a
condition precedent to
it is likely
to prove unworkable in a number of states.
of the information
required relates to
the permissible scope of the tribunal's inquiry. If properly presented
the tribunal will
be able to make a
decision on the
basis of the
pleadings without the necessity for holding a hearing. The petitioner
to inform the
court of all
that would affect the current enforcement action. Specific mention is
violence and orders
that they are disclosed. Perhaps forms can be developed for both the
answer that would be
clerk. The forms could be constructed to provide sufficient information
to allow the
tribunal to make a
decision solely on
section relates to the Order
To Show cause
and its contents as determined by the drafting committee. The
is required to
have the Order
issued at the
as the pleading.
SECTION 205. NOTICE.
petitioner shall give notice
to be heard to any person or entity who claims a right under the custody
required for this Article
shall be accomplished
as provided by Section 108.
The notice requirements for the enforcement section are slightly changed from Article I. Here notice must be given to any person or entity which claims a right to custody or visitation to the child under the decree sought to be enforced as well as any person or entity having physical custody of the child. It is not necessary to give notice to third parties who are not mentioned in the custody determination.
SECTION 206. ANSWER.
respondent has  five
calendar days after
service of notice to answer the petition.
(b) The answer may request that the petition be dismissed because:
(1) the issuing tribunal did not have subject matter jurisdiction under Sections 104, 105 or 106 of this [Act]; or
determination for which
is sought has been vacated, stayed or modified by a state with
to do so under
Sections 105 and
(3) the respondent lacked notice and opportunity to be heard in the proceedings before the tribunal which issued the order for which enforcement is sought;
(c) A certified
copy of any order
or modifying the custody determination sought to be enforced shall be
to the answer.
respondent may file a pleading
seeking an order
enforcing the terms of the custody determination. The petitioner has
sets out what should be
contained in the
answer. The respondent is given a very short period of time from
affirmative relief the
respondent may request
relates to enforcement of the custody determination. The respondent may
not request a
decree in the
enforcement action. Therefore no information that would only be
to a modification
be included in
such as information concerning the best interests of the child. If the
concerned that the child
harmed as a result
of the enforcement action, the respondent should file a petition under
Section 106 asking
the tribunal to
There is an
argument that the
respondent may not request
any affirmative relief. However, both parties to a custody
problems. Perhaps the
parent is not returning the child at the appropriate time in addition
allowing the child to
up on time. The tribunal should to be allowed to address both
in the same
does not attempt to
address the issue
of whether the child should be separately represented in an enforcement
SECTION 207. EXAMINATION OF THE PLEADINGS.
tribunal shall review the
five  calendar days after the receipt of the answer or if the
(b) If a
material issue of law or fact
the parties, the tribunal shall hold a hearing on the date specified in
the Order To
tribunal may order any party to
who is present in this State to appear personally. The tribunal may
any person in this
custody of the
child to personally appear with the child.
This section continues to emphasize the promptness of the enforcement proceeding. The tribunal must review all the pleadings within 5 days of their receipt. Normally, If there is no real issue of law or fact, the tribunal will issue an order either enforcing or dismissing the petition.
pleadings show that there is an
a hearing, the hearing must be held within a very short period of time
on the date specified
in the Show Cause
been made to limit the time for the hearing. If the answer alleges that
the issuing state
did not have
jurisdiction to issue
determination, the tribunal must allow the parties sufficient time to
the issue. The
have res judicata
effect on those issues. If the issuing state litigated the issues of
relitigation of those issues in the context of the enforcement action.
is derived from UCCJA
11, now 114. It
authorizes the tribunal in an enforcement proceeding to require the
SECTION 208. HEARING PROCEDURE AND EVIDENCE.
(a) In a
proceeding under this [Act],
may order that the hearing be held by conference call or other
technology and may
permit a party or a
residing in another
State to testify by telephonic, or other appropriate means at a
or other location
in that State.
shall cooperate with tribunals of other States in designating an
location for the
tribunal may assess
of telephone calls, audiovisual, or other electronic communications in accordance with [213 of this
from another State
to a tribunal of this State by telephone, telecopier, facsimile or
device that does
not provide an
be excluded from evidence solely because of the means of transmission.
(c) If a party
called to testify
refuses to answer
on the ground that the testimony may be self-incriminating, the
may draw an
(d) A privilege
against disclosure of
between spouses does not apply in a proceeding under this [Act].
(e) In a
proceeding under this [Act],
the defense of
immunity based on the relationship of husband and wife or parent and
does not apply.
In the normal
case, the hearing will be
in the respondent's
jurisdiction. However, the procedure could be brought in the
or where the child is
There is no
overriding requirement that all parties attend the proceeding. The
should have the
power to hold a hearing
can best accommodate all the parties. A record must, however, be made
requires tribunals of
this state to
cooperate with tribunals in other states in allowing witnesses to
from this state in
of this section is
derived from UIFSA
316 and the current UCCJA 18,19 and 20, particularly with regard to
Nothing in this
Act addresses the
question of whether
the tribunal should appoint an attorney or guardian ad litem for the
in the enforcement
issue is left
individual state to determine.
SECTION 209. COMMUNICATION BETWEEN TRIBUNALS.
(a) A tribunal
of this State may
communicate with a
tribunal of another State in writing, or by telephone or other means,
laws of that
legal effect of a custody determination of that tribunal, the status of
a proceeding in the
other State, or other
of this State shall furnish similar information by similar means to a
of another State.
Communication with other tribunals
should be made
in a manner which allows the parties to participate. Methods of
include: having the
parties or their
on the telephone during a conference call between the tribunals, having
the parties or their
attorneys join in
on-line or other
communication between tribunals, or by allowing the parties or their
to present facts
arguments to the
before a final determination of the appropriate forum is made.
(c) A record
shall be made of the
record may include: the notes or transcripts of a court reporter who
expenses of communicating with
a tribunal of
another State may be assessed as costs under [213 of this Act].
This section is
derived from UIFSA 317
and the current
UCCJA 7(d). It encourages judicial communication. The communication
could be combined with the
material of Article I into a separate section so we would not have to
SECTION 210. SCOPE OF INQUIRY.
(a) The petitioner's case shall consist of
(1) a certified or exemplified copy of the custody determination to be enforced, and
(2) evidence of its violation, or evidence of the respondent's violation, and
(3) the remedy sought.
tribunal shall grant the relief
the respondent shows by a preponderance of the evidence that
(1) the issuing tribunal's exercise of subject matter jurisdiction did not comply with [Section 104, 105 of this Act];
(2) a different tribunal has made a custody determination that is entitled to enforcement under the Parental Kidnapping Prevention Act, 28 U.S.C. Section 1738A;
(3) the respondent did not receive notice in accordance with [Sections 107,108 of this Act];
(4) the determination has been modified, stayed, or vacated by the issuing tribunal or by a tribunal whose decision must be enforced under the authority of the Parental Kidnaping Prevention Act, 28 U.S.C. Section 1738A.
has been rewritten in
the decision of the Drafting Committee at its February meeting. The
or exemplified copy of
the custody determination
is prima facie evidence of the issuing tribunal's jurisdiction to enter
the order. The
shifts to the
show that the custody determination is not entitled to enforcement.
It is a defense
to enforcement that
has issued a custody determination that is required to be enforced
opportunity to be heard at the
deter- mination is a defense to enforcement of the custody determina-
The defense of
lack of notice
should not be
if the respondent purposely hid from the petitioner, took deliberate
to avoid service
of process or
elected not to
the initial proceedings.
There are no
affirmative defenses to an
action. The drafting committee discussed whether there should be a
SECTION 211. EMERGENCY RELIEF.
(a) Upon the
filing of a petition, the
file a verified application for a waiver of notice and issuance of a
to take physical
custody of a child
believes the child may suffer immediate harm or be removed from this
(b) If the
tribunal finds that the
child will suffer
immediate harm or be removed from this State, it may waive notice and
(c) The warrant must:
facts upon which a
conclusion of immediate
harm is based;
enforcement officers to
physical custody of the child;
(3) be enforceable throughout this State
(4) provide for the placement of the child pending final relief, and
(5) provide that the respondent be served with notice and show cause order immediately after the child is taken into physical custody.
tribunal may authorize law
to enter private property to take physical custody of the child.
enforcement officers to make a forcible entry at any hour.
tribunal may impose conditions
of the child to ensure the appearance of the child and the child's
at the enforcement
This section concerns emergency provisions for a temporary waiver of notice in any case where there is a reason to believe that the child will suffer immediate harm or be removed from the jurisdiction once the respondent learns that the petitioner has filed an enforcement proceeding. If the tribunal finds immediate harm exists, it should temporarily waive the notice requirements and issue a warrant to take physical custody of the child. After the warrant is executed, the respondent receives notice of the proceedings.
cannot be totally
defined and, like
the issuance of temporary retraining orders, is left to the
The warrant must provide for the placement of the child pending the determination of the enforcement proceeding. Since the issuance of the warrant would not occur absent a risk of immediate harm to the child, placement cannot be with the respondent. Normally the child would be placed with the petitioner. However, if placement with the petitioner is not indicated, the tribunal can order any other appropriate placement authorized under the laws of the tribunal's state. Placement with the petitioner may not be indicated if there is a likelihood that the petitioner also will flee the jurisdiction. Placement with the petitioner may not be practical if the petitioner is proceeding through an attorney and is not present before the tribunal.
authorizes the tribunal to
means are available in the tribunal's jurisdiction to ensure the
of the petitioner
and child at the
means might include cash bonds, a surrender of a passport or whatever
SECTION 212. FINAL ORDER.
tribunal shall grant or deny
the relief requested
in whole or in part within 24 hours after a hearing under this [Act] is
(b) Subject to
the provisions of
[Section 116 of this
Act] the tribunal may utilize any remedy to enforce the custody
or its imminent
law of the forum.
(c) An order
granting the petition may
include a direction
to any law enforcement officer to assist the petitioner in enforcing
order is enforceable
order may authorize law enforcement officers to peaceably enter private
property to take
physical custody of
At the end of
the hearing the court
must either grant
or dismiss the petition in whole or in part. The short period for
a case under
necessary if the
is to be effective. The assistance of law enforcement provisions
in this article
mirror those in
since an emergency no longer exists only peaceable entrance onto
authorized by this
involved in the earlier draft has been resolved. This section refers to
116 on modification.
a tribunal to issue whatever orders are necessary to enforce a
SECTION 213. COSTS, FEES AND EXPENSES.
tribunal shall award the
including the State, reasonable expenses incurred by or on behalf of
tribunal shall not assess fees,
costs and expenses
against the State except as provided by other law.
with the decision of the
this section is derived from International Child Abduction Remedies Act,
42 U.S.C. 11607(b)(3). It
a tribunal will award fees and costs against the losing party. The word
is used in
describing the fee
Also included as costs are the amount of investigation fees incurred by
private persons or
officials as well as
of child placement during the proceedings.
non-prevailing party has the burden
that such an award would be clearly inappropriate. Fees and costs may be
This section is
consistent with Section
8(c) of Pub.L.
96-611 which provides that:
"In furtherance of the purposes of section 1738A of title 28, United States Code [this section], as added by subsection (a) of this section, State courts are encouraged to--
"(2) award to
the person entitled to
custody or visitation
pursuant to a custody determination which is consistent with the
provisions of such
section 1738A [this
expenses, attorneys' fees, costs of private investigations,
"prevailing party" is not
given a special
definition for this Act. It is assumed that each state will apply the
own standard. If
and respondent on others, local law will determine whether there is a
was added at the last
meeting to ensure that this section would not apply to the state unless
SECTION 214. RECOGNITION AND ENFORCEMENT. A tribunals of this State shall accord full faith and credit to an order enforcing a custody determination made consistently with this [Act] by a tribunal of another State unless the [registry established under Section 117] indicates the order has been superseded, stayed, vacated or modified by a tribunal authorized to do so under [Sections 104,105,116 of this Act].
order to be effective
must also be
enforced by other states. This section requires tribunals of this state
to give full
APPEALS. A final order in
under this Article may be appealed in accordance with expedited
The order may
be appealed as an
expedited civil matter.
An enforcement order should not be stayed. Provisions for a stay
would defeat the
purpose of having
If there is a risk of serious mistreatment to the child a petition to assume emergency
jurisdiction must be
Section 106. Absent such a filing there is no reason to stay the
of the order
ARTICLE 3: ASSISTANCE OF PUBLIC AUTHORITIES]
Introduction to Article Three
This article is
modeled upon the
which in turn is based on the California experience in authorizing a
for public authorities
in custody and
One of the basic policies behind the California approach is that the
parties to abide
by the terms of the custody determination. If the parties know that
law enforcement officers
in securing compliance with custody determinations, they may be
exercise of rights
by court order.
model could also prove
in remedying violations of the custody determination. Most parties do
have the resources
to enforce a
another jurisdiction. The availability of the prosecutor as an
agency will help
ensure that this
remedy can be
regardless of income level. In addition the prosecutor has resources to
draw on that
are unavailable to
SECTION 301. ROLE OF [PROSECUTOR].
(a) The [prosecutor] at the request of
(1) a person whose custody rights have been violated,
(2) a person who claims a right to custody or visitation under a custody determination,
(3) a [prosecutor] in another jurisdiction, or
(4) the United States Department of State in a proceeding arising under 42 U.S.C. 11601 (International Child Abduction RemediesAct) may take any action necessary to obtain the return of the child or to enforce a custody determination, including locating the child andrequesting the enforcement of the determination by a prosecutor in another jurisdiction.
(b) The [prosecutor] is authorized to utilize any available civil or criminal proceeding including proceedings under this [Act].
(c) The [prosecutor] shall act on behalf of the court and does not represent any party to the custody determination.
departs somewhat from the
which provides a role for public authorities, in some cases, prior to
is authorized to locate
the child and
enforce the custody determination. This Act does not attempt to suggest
how the prosecutor
under this Act.
It is assumed in locating the child the prosecutor would proceed as in
a state missing
person case. The
to utilize any criminal or civil proceeding to secure the enforcement
the custody determination,
this Act. If the
proceeds pursuant to this Act, the prosecutor is subject to its
For example, the
abide by the
pleading and notice requirements of 301 and 302. If the prosecutor
that the child is
it may request
an emergency order under 401.
does not represent any
party to the
custody determination. It acts as a "friend of the court." It's role is
to ensure that the custody determination is
ROLE OF LAW ENFORCEMENT At
of the [prosecutor] acting pursuant to [301 of this Act], law
enforce- ment officials shall
all actions reasonably necessary to locate a child and secure
with a custody
authorizes law enforcement
assist in locating a child and enforcing a custody determination. There
are two policy
choices to be made at
juncture. The first
is to determine how the assistance of law enforcement is to be
One method is to
shall be involved when so requested by the prosecutor pursuant to 301.
This removes all
doubt from law
to the propriety
of the request.
approach would authorize law
to act when requested by a private individual. However, there would
issue is whether all
reasonable means should
be defined. This section does not attempt to do so but rather leaves it
to each individual
the appropriate role of law enforcement consistent with the purposes of
SECTION 303. COSTS AND EXPENSES. All expenses and costs incurred by the [prosecutor] and law enforcement officials for proceedings under this [Act] shall be assessed against the losing party, unless the losing party establishes that such an order would be clearly inappropriate. If costs are not assessed against the losing party, the tribunal may assess some or all of the costs and expenses against the prevailing party. A monetary award made pursuant to this section shall constitute a judgment and be enforceable as such.
CommentOne of the major problems of utilizing public officials to locate children and enforce custody and visitation determinations is cost.
This section authorizes the prosecutor and law enforcement to recover costs and fees against the losing party. It differs from 402 in two ways. First, if the losing party cannot afford all the costs they may also be assessed against the prevailing party. The theory here is that one who utilizes government services may expect to pay a user fee under certain circumstances. Second, the monetary award is made an automatic judgment and can be enforceable as such.