Background:

A variety of state, federal, and international laws have been enacted that either directly or indirectly address child abduction issues. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), adopted by Washington and numerous other states, and the federal Parental Kidnapping Prevention Act (PKPA), enacted by Congress in 1980, both address jurisdictional issues over child custody determinations when more than one state is involved.

The UCCJEA establishes procedures to determine when one state has jurisdiction to enter or modify a child custody order and when it must recognize another state's order. The UCCJEA gives exclusive and continuing jurisdiction over child custody to the courts of the child’s home state, defined for the most part as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding. It also provides a uniform procedure to register and enforce child custody orders across state lines. The UCCJEA provides a court with temporary emergency jurisdiction, even if another state has issued a custody order, if a child is present in the state and needs protection due to abuse or abandonment.

The PKPA requires that states give “full faith and credit” to other states’ custody determinations so long as those determinations are made consistent with the PKPA. The act provides that only those child custody determinations made by a child’s “home state” are eligible for full faith and credit treatment.

The Hague Convention on the Civil Aspects of International Child Abduction, currently in effect between the U.S. and approximately 70 countries, facilitates the return of an abducted child to the child’s habitual residence. Parents, not the governments, are parties to the legal action, and a treaty obligation requires return of an abducted child if the parent applies for a return order within a specified period of time from the abduction.

In 2006, the National Conference of Commissioners on Uniform State Laws approved and recommended for enactment in all states the Uniform Child Abduction Prevention Act (UCAPA). Since then, seven states have adopted the UCAPA. The UCAPA’s stated purpose is to provide a mechanism for a court to impose child abduction prevention measures at any time to deter and prevent domestic and international abductions. It does not create criminal offenses or establish child custody.

Summary of Bill:

The Uniform Child Abduction Prevention Act (UCAPA) is adopted. An "abduction" is the wrongful removal or wrongful retention of a child. A wrongful removal or wrongful retention means the taking or keeping of a child that breaches rights of custody or visitation given or recognized under state law.

The UCAPA permits a court, on its own motion, to order abduction prevention measures if the court finds the evidence establishes a credible risk of abduction of the child. It also allows a party or anyone with the right to seek a child custody determination to petition the court for an abduction prevention order. Petitions may be filed only in a court that has jurisdiction to make child custody determinations with respect to that child or if the court has temporary emergency jurisdiction under the existing Uniform Child Custody Jurisdiction and Enforcement Act. The UCAPA also allows a prosecutor or the Attorney General to seek a warrant to take physical custody of a child or seek other abduction prevention measures.

The petition must specify certain information, including factors showing a risk of abduction, whether there has been prior action to prevent abduction or domestic violence, and whether a party has been arrested for domestic violence, stalking, or child abuse or neglect.

In determining whether there is a credible risk of abduction, the court must consider whether the petitioner or respondent has engaged in certain activity that may indicate an abduction, such as:

abandoning employment, selling the home, terminating a lease, closing bank accounts, unusual financial actives, applying for a passport or visa or other travel documents, or seeking to obtain the child's birth certificate or school records;
domestic violence, stalking, or child abuse or neglect; and
refusal to follow a custody determination.

The UCAPA specifies other evidence the court must consider that pertain to possible international abductions, including whether the petitioner or respondent:

lacks strong family, financial, emotional, or cultural ties to the state or the country;
is undergoing a change in immigration or citizenship status that would adversely affect the person's ability to remain in the country legally;
has forged or presented misleading evidence on government forms to obtain a passport, travel documents, or other government-issued documents;
is likely to take the child to a country where it would be difficult to have the child returned (a country that is not a party, does not comply with or lacks the legal mechanisms for enforcement of the Hague Convention on Civil Aspects of International Child Abduction, or doesn't provide extradition); and
is likely to take the child to a country that poses a risk of harm to the child's physical or emotional health or safety because of the country's human rights violations committed against children or because of the country's laws or practices that restrict travel based on a person's gender, nationality, marital status, or religion, or a country that is listed as a sponsor of terrorism or is engaged in military action or war to which the child may be exposed.

If, at a hearing, the court finds a credible risk of abduction, it must enter an abduction prevention order that specifies the basis for the court's jurisdiction, the manner in which notice was provided to persons entitled to notice, a detailed description of each party's custody and visitation rights and residential arrangements, and other provisions.

When imposing abduction prevention measure and conditions, the court must consider, among other things, custody and visitation rights, the difficulties of returning the child if abducted, and the reasons for the potential abduction, including evidence of domestic violence, stalking, or child abuse or neglect. The measures and conditions must be reasonably calculated to prevent abduction. Measures and conditions may include:

imposing travel restrictions and requiring the party traveling with the child to provide the other party with travel itinerary and copies of travel documents;
prohibiting the respondent from removing the child from the state, the country, or other geographic location without permission from the court or consent from the petitioner;
prohibiting the respondent from removing the child from school or day care or approaching the child at any location other than a supervised visitation site;
requiring a party to register the order in another state before allowing travel;
directing the petitioner to place the child's name in the federal passport alert program;
requiring the respondent to surrender the child's passport to the court or the petitioner's attorney;
requiring the respondent to provide to the federal agency handling abduction issues copies of travel restrictions before the respondent can exercise custody or visitation;
requiring the respondent to provide to the court an acknowledgment from a foreign consulate that no passport application has been made on behalf of the child before the respondent may exercise custody or visitation.

The court may also require that the respondent exercise supervised visitation and require the respondent to post a bond or security as a financial deterrent to abduction before exercising visitation or custody.

To prevent imminent abduction, the court may direct law enforcement to take any action reasonably necessary to locate and return a child or enforce a child custody determination. The court may issue an ex parte warrant to take physical custody of the child if the court finds that there is a credible risk that the child is imminently likely to be wrongfully removed. The respondent must be served with the warrant when or immediately after the child is taken into custody and must be given a hearing at the earliest possible time after the ex parte warrant is executed. If a less-intrusive remedy would not be effective, the court may authorize law enforcement to enter private property. If required by exigent circumstances, the court may allow law enforcement to make a forcible entry at any hour.

If feasible, before issuing a warrant and determining the placement of the child after the warrant is executed, the court may order a search of relevant databases to determine if either the petitioner or respondent has a history of domestic violence, stalking, or child abuse or neglect. If the petitioner sought an ex parte hearing in bad faith, the court may award the respondent reasonable attorneys' fees, cost, and expenses.

An abduction prevention order remains in effect until the earliest of:

the time specified in the order;
the emancipation of the child;
the child's 18th birthday; or
the time the order is modified, revoked, vacated, or superseded.