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TESTIMONY OF
RONALD W. NELSON TO HOUSE JUDICIARY COMMITTEE
SB 18 – Uniform
Child Abduction Prevention Act
Members of the Committee: Good afternoon. I am Ronald W.
Nelson. I am a
Today I am testifying in favor of passage of the Uniform Child Abduction Prevention Act (UCAPA), which is the subject of Senate Bill 18. This important bill addresses the growing problem of interstate and international child abduction by parents and others who seek to use the child as a pawn in their disputes. Although addressing these issues has not been nearly so chaotic as before passage of the Uniform Child Custody Jurisdiction Act in 1978 and the Uniform Child Custody Jurisdiction and Enforcement Act in 2000 (when parents had to travel from state-to-state-to-state filing one action after another to re-establish custody rights already established in one or more other jurisdictions), problems continue and the UCAPA seeks to address those problems.
Although “stranger” abductions and kidnappings are most
publicized – and feared – by far the most common child abduction is parental
child abduction, which often occurs when the parents separate or begin divorce
proceedings but also which may occur in other periods of turmoil. A parent may
remove or retain the child from the other seeking to gain an advantage in
expected or pending child-custody proceedings or because that parent fears
losing the child in those expected or pending child-custody proceedings; a
parent may refuse to return a child at the end of an access visit or may flee
with the child to prevent an access visit. Parental child abductions may be
within the same city, within the state region or within the same country, or
may be international. Studies performed for the U.S. Department of Justice's
Office of Juvenile Justice and Delinquency Prevention reported that in 1999,
53% percent of family abducted children were gone less than one week, and 21%
were gone one month or more.[1]
Historically,
Even though strides have been made by limiting the State where child custody actions can be filed by passage of the Uniform Child Custody Jurisdiction Act and federal Parental Kidnapping Prevention Act and, more recently, by procedures for enforcement of temporary and final child custody orders by the Uniform Child Custody Jurisdiction and Enforcement Act, even more efficient and rapid remedies need to be instituted to protect children against being used as pawns in tragic interstate and international games of “custody-chess.”
The Uniform Child Abduction Prevention Act (UCAPA) is an
important step to address the growing problem of parental abduction and protect
the child from credible threats to do so. The UCAPA is modeled on effective
measures already in effect in other arenas to address this issue: the
Convention on the Civil Aspects of International Child Abduction, which was
adopted by the Hague Convention on Private International Law[2],
and Child Abduction Prevention Acts from other States in the
The UCAPA closely follows the Hague Convention on the Civil Aspects of International Child Abduction and the Uniform Child Custody Jurisdiction and Enforcement Act in its language.
· The UCAPA specifically states that only a state that has jurisdiction under the UCCJEA may enter an order implementing remedies. It prohibits a court in one state from exercising jurisdiction if a valid custody proceeding is already pending in another state and requires that states give full faith and credit to sister state decrees made in accordance with its principles – all as is required by the federal Parental Kidnapping Prevention Act. While a State may enter a prevention order if the petitioning party alleges an “emergency,” that matter must immediately be referred to the State having appropriate jurisdiction under the UCCJEA as the “home state” or other significant connections if the child hasn’t resided in the State for six months. This Act equates a credible risk of abduction with threatened mistreatment or abuse for emergency jurisdiction purposes, but sets forth those allegations that must be made.
A purpose of the UCAPA is to preserve whatever status quo custody arrangement existed for the child prior to the time of the alleged wrongful removal or retention and to deter a parent from crossing boundaries in search of a more sympathetic court – which is the same purpose as the Hague International Convention. An additional purpose is to preserve jurisdiction in that place which has the closest connection with the family and child. As stated by one court regarding Hague proceedings:
Every family dispute has its own unique set of facts, and
the case before us certainly is no different. However, there is a central core
of matters at which The Hague Convention was aimed: situations where one parent
attempts to settle a difficult family situation, and obtain an advantage in any
possible future custody struggle, by returning to the parent's native country,
or country of preferred residence. That is exactly what happened here.[4]
The UCAPA defines
“abduction” in the same way it is used in the Hague Convention on the Civil
Aspects of International Child Abduction; that is, as “the wrongful
removal or wrongful retention of a child.” Case law under the Hague Convention has
indicated the term does not require that the removal was “intentionally”
wrongful in order to qualify as a “wrongful retention or removal”– it is
sufficient that the removal or retention deprive another joint holder of rights
of the continued exercise of that right. “The conduct made actionable by the Convention
– the wrongful removal or retention of children – is wrongful not in a criminal
sense but in a civil sense.”[5] Thus,
for the removal or retention to be wrongful, it is enough to show that the
rights of custody were either being exercised or that they would have been
exercised if not for the actions of the person alleged to have wrongfully
removed or retained the children.[6]
“Generally speaking, ‘wrongful removal’ refers to the act of keeping the child
without the consent of the person who was actually exercising custody of the
child. ‘Wrongful retention’ refers to the act of keeping the child without the
consent of the person who was actually exercising custody. The archetype of
this conduct is the refusal by the noncustodial parent to return a child at the
end of an authorized visitation period.”[7] A
“wrongful removal or retention” of a child occurs within the meaning of the
Convention when an action is taken by one parent in contravention to the rights
of a person or institution under the law of the State of the child’s habitual
residence.[8] The Hague Convention Explanatory Note makes
clear that:
. . . the removal of a child by one of the joint holders
without the consent of the other, is . . . wrongful, and this wrongfulness
derives in this particular case, not from some action in breach of a particular
law, but from the fact that such action has disregarded the rights of the other
parent which are also protected by law, and has interfered with their
normal exercise. The Convention's true nature is revealed most clearly in
these situations: it is not concerned with establishing the person to whom
custody of the child will belong at some point in the future, nor with the
situations in which it may prove necessary to modify a decision awarding joint
custody on the basis of facts which have subsequently changed. It seeks, more
simply, to prevent a later decision on the matter being influenced by a change
of circumstances brought about through unilateral action by one of the parties.[9]
· The UCAPA spells out many remedies that are already available, although they are not widely known by lawyers or judges, to deal with domestic or international parental abductions, all of which are cumulative, including:
– imposition of
travel restrictions that require that a party traveling with the child outside
designated geographical area provide the other party with specific designated
information;
–prohibitions
against the removal of the child from the State, the
–prohibitions
against removing the child from school or a child-care facility or from approaching
the child at any location other than a site designated for supervised parenting
time;
–require
registration of the child-custody order in another state to which the child
will travel before that travel is allowed;
–require surrender
of or placement of restrictions upon the child’s passport or obtaining a new or
replacement passport or visa;
–require that the
respondent obtain an order from the relevant foreign country containing identical
child-custody provisions as those contained in the child-custody order issued
in the United States.
–imposing conditions,
restrictions, or supervision on the exercise of custody or visitation.
–require that the
respondent post a bond or other security to serve as a financial deterrent to
abduction, with the proceeds used to pay for the reasonable expenses of
recovery of the child, including reasonable attorneys fees and costs if there
is an abduction; and
–issue a warrant
to take physical custody of the child;
–direct law
enforcement to take any action reasonably necessary to locate the child, obtain
return of the child, or enforce a custody determination.
These remedies are already, for the most part, available under existing law. However, it is important that statute set for those remedies available because of the chaotic situations under which these actions will most likely arise.
As previously stated, a significant portion of my practice involves cases in which interstate or international jurisdictional issues are present and, as a result, I've handled a large number of cases in which threatened or actual parental child abduction is a concern. In those cases, rapid and effective action is critical. Child abduction is child abuse. A parent’s attempt to “take the law into their own hands” by spiriting their child away from the other parent – without any authority from anyone other than their own sense of what is “right” harms their child and expresses contempt for ordered society. They seek not what is best for their child, but to impose what they want without regard to any independent or objective assessment of that situation. Numerous psychological studies show the harm visited upon the children by these unilateral acts.[10]
I strongly urge the Committee pass out the Uniform Child Abduction Prevention Act. It is an important act to protect children from becoming embroiled in an already tense situation that threatens to cause irreparable and unfathomable harm on the family and the subject children.
Thank you.
___________________________________
NELSON & BOOTH
Telephone: (913) 469-5300
[1]
, NISMART National Family Abduction
Report, October 2002.
[2] The Hague Convention on the Civil Aspects of International Child Abduction is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child taken from one member nation to another. Proceedings on the Convention concluded October 25, 1980 and the Convention entered into force between the signatory nations on December 1, 1983. The Convention is now in force between the United States and 55 other Nation-States.
[3]
See
[4] Friedrich v. Friedrich, 983 F.2d 1396, 1402 (6th Cir. 1993):
[5] Legal Analysis of the Hague Convention, 51 Fed.Reg. 10494, 10505 (1986).
[6] Hague Convention, Article 3.
[7] Legal Analysis of the Hague Convention, 51 Fed.Reg. 10494, 10503 (1986).
[8] Hague Convention, Article 3.
[9] Elisa Perez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session ("Explanatory Report"), ¶ 71, at 447-48.
[10]
See
e.g. Forehand, et al., Child
Abduction: Parent and Child Functioning After Return. Clinical
Pediatrics 28(7):311-316; The Impact of Parental Abduction on Children: A
Review of the Literature, American
Journal of Orthopsychiatry 62(4):599-206.