USA: The Ride For Missing Children


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The Ride For Missing Children is the biggest annual fundraiser for the National Center of Missing & Exploited Children-NY/Mohawk Valley. Our mission is “to make our children safer …one child at a time.”

If you have any questions or concerns regarding parental abduction feel free to contact us 24 / 7.  We are always available at contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311)

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US / Armenia: Armenia joins the Hague Convention on International Parental Abduction


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US Department of State:

On March 1, 2018, the 1980 Hague Convention on the Civil Aspects of International Child Abduction entered into force between the United States and Armenia. The United States now has 77 partners under the Convention.

The Convention provides a civil law mechanism for parents seeking the return of children who have been wrongfully removed from or retained outside their country of habitual residence in violation of custodial rights. Parents seeking access to children residing in treaty partner countries may also invoke the Convention. The Convention is important because it establishes an internationally recognized legal framework to resolve international parental child abduction cases. The Convention does not address who should have custody of the child; rather it addresses where issues of child custody should be decided.

The Department of State’s Office of Children’s Issues, which serves as the Central Authority for the United States under the Convention, welcomes our partnership with Armenia and looks forward to working together on this critical issue.

If you have any questions or concerns regarding parental abduction to or from Armenia  feel free to contact us 24 / 7.  We are always available at contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311)

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UK: International children: when does moving abroad with your child become child abduction?


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by 

The question of whether a mother’s decision to relocate from Australia to England with her two young children amounted to child abduction has been the subject of a Supreme Court ruling called Re C.

The Court decision is of interest as it highlights the fact that often the decision to move from one country to another with children isn’t straightforward and therefore it isn’t easy to say what amounts to ‘’child abduction’’ and when ‘’habitual residence’’ changes from the country of origin to the country of relocation.

In re C, two parents were living in Australia with their two children, the marriage ran into trouble and the father agreed that the British mother and the children (who had Australian citizenship) could take a trip to the UK for 8 weeks. The father then agreed, by email, that the trip could be extended to up to a year. During the year the mother decided that she wanted to remain in the UK with the two children. This decision resulted in the father applying under the Hague Convention for the children’s return to Australia.

The legal question was whether the children remained ‘’habitually resident’’ in Australia as, on the father’s case, their stay in England was only temporary. If the Court ruled that the children remained ‘’habitually resident’’ in Australia the Hague Convention rules would be applied and the children would go back to Australia .The long term decision as to which parent the children should live with and in what country would then be decided by the Australian family Court. The Australian Court would have the option to rule that the children should stay in Australia with their mother or father or grant an application by the mother to return to the UK with the children.

The mother resisted the father’s High Court application that the children should be returned to Australia arguing that the children were now habitually resident in the UK so the UK Court couldn’t apply the Hague Convention rules and summarily return the children to Australia for the Australian family Court to decide on the children’s future. The High Court agreed with the mother, the father appealed and the Court of Appeal agreed with the father ordering the children’s return to Australia. There was a further appeal to the Supreme Court. The Court held that the father’s application under the Hague Convention failed because the children had become ‘’habitually resident’’ in the UK and therefore the English Court could decide where the children’s future lay. Not all of the Supreme Court judges agreed with the leading judgment and a reading of the Court case and the various judge’s views shows just how finely balanced and complicated the decision was.

The decision on whether the children were habitually resident in Australia or England all came down to when the mother formed her intention to remain in the UK with the children. Was it a case of a mother who was struggling to decide what to do and where to live with her two young children or a case of planned child removal by tactically getting the husband to agree to a one year stay in England?

Why does the case matter? If the children had retained their habitual residence in Australia then under the Hague Convention the UK Court would have had to return the children to Australia using a quick summary procedure and without looking at the merits of either parent’s case namely that the children would be better off being brought up in Australia or the UK. Once back in Australia the mother might have found it harder to argue that the children should return to the UK with her.

However as the Court has ruled that the Hague Convention doesn’t apply the UK Court can now carefully decide what is in the children’s best interests: to live in England with their mother or return to Australia with their father and the sort of contact time they should spend with the parent who isn’t going to be caring for them on a day to day basis.

What does this case mean for a parent travelling with children to the UK? For the parent who has come over to the UK with their children it shows the depth of analysis of the legal concept of ‘’habitual residence’’ and the pouring over of detail and, in the case or Re C, the review of correspondence to try to determine when the children lost their habitual residence in Australia. Despite the Re C ruling many parents should be wary of the risks of arguing that their children have become habitually resident in England and thus the Convention doesn’t apply. That is because if the UK Court rules against them on the legal definition of habitual residence or on the facts of their case they start on ‘’the back foot’’ if they have to return to the country they departed from for that country to rule on their children’s long term future. The dilemma remains – do you apply for permission to take a child to live abroad in the country in which the child lives and risk Court failure or risk travelling abroad and the Court ruling that the child’s habitual residence remains the country of origin thus forcing a Hague Convention return and a more challenging Court application in the country of origin.

What does this case mean for a parent agreeing to their children going abroad with one parent for an extended period? It may mean that if the parent receives legal advice they will be less likely to agree to a child going abroad for an extended holiday as if their child is at risk of losing habitual residence the Hague Convention won’t apply thus making it a lot harder to recover children from abroad.

The dissenting Supreme Court judge’s views show just how difficult it is to define the concept of ‘’habitual residence’’ and how easy it is to fall foul of child abduction laws and conventions. As a child abduction lawyer the case of Re C shows just how finely balanced Court decisions can be and the importance of parents taking legal advice before they take their children abroad or agree to an extended trip abroad so that they make informed decisions.

For advice on any aspect of children or child abduction law call Louise at Evolve Family Law –  +44 (0) 1477 464020 or email me at louise@evolvefamilylaw.co.uk  

If you have any questions or concerns regarding parental abduction to or from The UK  feel free to contact us 24 / 7.  We are always available at contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311)

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Japan: Courts fail to return disputed children


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The Yomiuri ShimbunAll domestic legal procedures to compel divorced parents who are refusing to obey finalized court orders to return their children to the children’s country of habitual residence, in keeping with an international treaty, have so far failed, according to the Foreign Ministry.

The Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) stipulates how to handle the cases of children who have been taken by their father or mother to a foreign state due to divorce or other reasons.

In domestic trials involving the convention, some parents have not obeyed even finalized orders to return such children to the state where they habitually resided. According to the Foreign Ministry, six legal procedures have been conducted to separate children from such parents, but all have failed to bring about the return of the children.

This has led the effectiveness of the Hague Convention to be questioned, and some experts are calling for improvements to the relevant systems.

The Hague Convention is an international rule under which, if a parent takes his or her children to his or her home country without the permission of the other parent, the parent must in principle return the children to the state where the children have their habitual residence.

Parents residing in foreign countries file a suit with family and other courts demanding the return of their children to their countries. The courts then decide whether to accept such demands through trials or other procedures.

If the other parent refuses to return their children in defiance of the court decision, implementation by proxy (see below) of the children’s return will be carried out, following the implementation of fines.

The Hague Convention went into effect in April 2014. According to the Foreign Ministry, from then until January this year, there have been 23 cases in which courts have ordered, through a trial, the return of children to states where they have their habitual residence.

Of these cases, implementation by proxy was conducted in six cases involving 14 children. However, the parents would not agree and refused to hand over their children, holding them tightly in their arms or using other means. As a result, none of the children were returned in these six cases.

Under the Japanese law for implementation of the convention, it is impossible to forcibly separate children from parents through implementation by proxy.

A lawyer for a male U.S. national who had filed such a suit under the Hague Convention pointed out the weak effectiveness of the Japanese implementation law, with the U.S. system — in which parents who do not obey court decisions can be detained — in mind.

Shinichiro Hayakawa, a professor of international private law at the University of Tokyo, said: “The current situation in which parents are allowed to refuse to return their children is problematic. It’s necessary to consider improving the system to enhance the effectiveness of the treaty while paying attention to the mental and physical condition of children.”

Decision could be overturned

On Monday, the first petty bench of the Supreme Court held a hearing for a case filed by a father living in the United States who is demanding the return of his 13-year-old son. The boy’s mother lives in Japan and refused to obey an order to return the son to the United States and accept implementation by proxy.

The case was closed the same day, after hearing from both sides. A ruling will be handed down on March 15, and may be overturned by the Nagoya High Court’s Kanazawa branch that refused the father’s demand.

At the hearing, the father’s side claimed that the mother’s act ignored the purpose of the convention. The mother’s side claimed that their son wants to live in Japan and so he should not be returned to the United States even though a return order was issued under the treaty.

The parents in this case are both Japanese nationals. They divorced in the United States, and the mother took their son to Japan in 2016. The father filed a suit demanding the return of the son under the implementation law.

The Tokyo High Court’s order to return him was finalized. However, when court enforcement officers arrived at the home of the mother and son, the mother wrapped herself and her son in a futon and refused to cooperate. Therefore, the boy could not be returned.

Implementation by proxy

If a person does not obey court orders or other directives, court enforcement officers and other people visit the person to implement the relevant orders in a compulsory manner. Under the Japanese implementation law for the Hague Convention, such officers and parents demanding their children’s return visit the relevant children and ask the other parent living with the children to return them. Court enforcement officers are allowed to unlock and search homes, and to attempt to persuade the other parent. However, they are not allowed to forcibly separate parents and children who refuse to accept the implementation.Speech

If you have any questions or concerns regarding parental abduction to or from Japan  feel free to contact us 24 / 7.  We are always available at contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311)

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Netherlands / India: Amberalert.eu, News


Abduction Insiya (Netherlands) – Dutch Public Prosecutor does not accept withdrawal of arrest warrant against Insiya’s father.

Update February 27th 2018: The Public Prosecutor in the Netherlands does not accept Interpol’s decision to withdraw the international arrest warrant against Insiya’s father, Shehzad H., writes Dutch newspaper De Telegraaf. “We do not agree with the removal and will strive to reactivate the arrest warrant”, the Public Prosecutor’s Office states in a press release. The statement was issued after the father’s attorney claimed that Interpol, the international police organisation, considers Insiya’s abduction a “private family matter”. For that reason, Interpol has withdrawn the arrest warrant against Shehzad H. 

Previous Updates

Update February 16th 2018:  A judge in the Netherlands ruled that the three-year-old Insiya, who was taken from Amsterdam to India by her father, does not have to immediately return home. The Supreme Court in The Hague annulled the ruling of another judge, who stated that Insiya must be brought back to her mother in the Netherlands before March 27th. According to the Supreme Court, it is up to the Indian judiciary to make that decision, writes Dutch newspaper Algemeen Dagblad.

Update January 30th 2018: Three-year-old Insiya must return to the Netherlands. Her return was ordered by an Indian court yesterday. Insiya’s father, who is said to be behind the violent abduction of his daughter from Amsterdam to India on September 29th 2016, will have to bring his daughter back to her Dutch mother before March 27th, writes Dutch newspaper De Telegraaf.

Update January 12th 2018: In 2016, the now three-year-old Insiya was forcibly kidnapped to India. Although there have been negotiations between the Dutch and Indian government to bring the girl back to the Netherlands, the case is deadlocked. However, the pressure on India has increased, after the court in The Hague formally established that the toddler was kidnapped. “In December, the judge also ruled that Insiya was held in India illegally,” says Insiya’s mother, Nadia Rashid. Insiya’s father, Shehzad H., who is presumed to be behind the abduction, was also ordered by the court to bring the girl back. In a direct appeal to the Indian prime minister Narendra Modi, Rashid is asking the government in India (Mumbai) for help in returning her kidnapped daughter to her. AMBER Alert Netherlands in turn has received direct threats from Shehzad H. to remove any communication regarding the case from its website.

Read the full story from the moment of abduction until now:

Update September 29th 2017: On this day last year, Dutch toddler Insiya Hemani was kidnapped and taken to India. Despite numerous efforts of the Dutch government to reunite the girl with her mother, the case is completely log-jammed, according to Dutch newspaper De Telegraaf. Most of the suspects are in custody, but her father, presumed to be the mastermind behind the abduction, is said to still be hiding the child in a house in India. Insiya’s mother, Nadia Rashid, has released an emotional appeal to the public. She hopes the video will remind the public once again of the abuction, bringing her one step closer to being reunited with her daughter.

Update July 13th 2017: The Public Prosecutor wants to charge Insiya’s father, who is believed to be behind his daughter’s abduction, if he fails to show up in court, according to Dutch newspaper de Volkskrant. The chances that Shehzad H. will actually make an appearance are slim to none as India refuses to extradite the man.

Update May 8th 2017: Dutch Minister Koenders is going to India to personally discuss the abduction case of the 3-year old Insiya with the Indian authorities. The girl was abducted last September. Insiya’s father, Shehzad H., is presumed to be have orchestrated the abduction.

Update March 29th 2017: The Dutch Public Prosecutor filed a legal request with India asking the country to extradite Shehzad H. to the Netherlands, the prosecutor revealed in court on Wednesday. The Prosecutor believes Shehzad H. is responsible for the kidnapping of his 2-year-old daughter Insiya in Amsterdam last year.

The Prosecutor also wants to question two suspects in Iraq and the United States, AD reports. India is considering the request for extradition, the Prosecutor is still waiting for a response.

Update February 28th 2017: Insiya’s mother, Nadia Rashid, has started a petition to get her daughter back to the Netherlands as soon as possible. “It is awful. It has been hell”, says Rashid. “It hits you every day that she is not here. You look at her pictures, watch video clips of her. You miss her little hands, that she runs up to you in the morning. And yet, you still hope that at some point you catch a glimpse of your child. But that is not the case.”

With the petition, Rashid hopes to push the Dutch and Indian government to come to a resolution and bring Insiya back home. The petition has already gathered over 11.000 signatures.

Update February 27th 2017: The Dutch Ministry of Foreign Affairs is hoping for a quick solution in the abduction case of Insiya from Amsterdam. The ministry is mediating between both parents to get the girl back to the Netherlands. A spokesperson of the Ministry: “We are in contact with the mother almost daily and there is regular contact with the father. We are making small steps towards a resolution”.

Update February 27th 2017: The Dutch newspaper De Telegraaf reports that, once again, one of the abductors of the 2.5-year old Insiya has been arrested at the airport in Teheran, Iran. The arrest is an important development in the investigation of the Dutch police. Last week Daniel C., suspected of having prepared the abduction, was already arrested in the United States.

Update January 12th, 2017: The Dutch news broadcaster AT5 reports that the abduction of the 2-year old Insiya Hemani has been well prepared for eight months. On the computer of one of the suspects a plan was found. The plan reveals that the use of violence wasn’t an issue for the abuctors.

“I will continue. I won’t stop until Insiya is back in the Netherlands,” says Insiya’s mother (Dutch video, AT5)

Update December 27th, 2016Three months ago, Insiya (2) was kidnapped. Since then, her mother Nadia Rashid, has faced some tough times. Not having Insiya around is especially hard around Christmas time, reports Dutch newspaper De Telegraaf. “Last year everything was different”, Rashid reminisces. “Insiya really liked Christmas, she couldn’t stop staring at the tree. Now, I know nothing about her. I only hear stories of neighbours in Mumbai, who live in the apartment building where my daughter is being held. They say they occasionally hear Insiya crying heartrendingly. That’s all I know.” (De Telegraaf)

RTL Boulevard also reported on the case. Watch the video (Dutch).

Update Nov 12th: The father of the kidnapped toddler Insiya, Shehzad H., reportedly refuses to reunite his 2-year-old daughter with her mother, reports De TelegraafShehzad H. informed the mother’s lawyer through his attorney Gerard Spong. India has not contacted the Amsterdam police to cooperate in the arrest of the father or bringing back Insiya to the Netherlands (De Telegraaf)

Watch the video (Dutch)

Update Oct 28th: The abducted Insiya is said to be held in an apartment in Mumbai, India, by her father. A crime reporter of the Dutch news paper Telegraaf, spoke to witnesses who confirm that they have seen and heard the two-year old girl in the apartment of her grandmother.

Update Oct 21st: German media like Focus, Stern, DPA, Hamburger Morgenpost, News Deutschland, cover the abduction of Insiya. In addition to the attention of German media, information about Insiya is also displayed in Germany on big screens in bus- and train stations.

Oct 19th – 15:28: Information about Insiya is now displayed in Germany via big screens on bus- and train stations. The information was disseminated in cooperation with NGO Initiative Vermisste Kinder, the German member of AMBER Alert Europe.

Oct 19th – 11.56: The Dutch police has arrested two more persons that are believed to be involved in the abduction of the two-year old Insiya Hemani. One of the suspects has been arrested in Germany. The police have also searched a house in Germany. Both suspects have the Dutch nationality.

Oct 18th – 18:38: “We suspect that the child might be in Germany. Because of the investigation process we can not provide more information at this stage. Germany is extremely large, but we think it is very important to find her. We hope everyone will be on the lookout, also in Germany”, says a spokeswoman of the Dutch police (Hart van Nederland).

Oct 18th 15:39: According to the Dutch Police there are indications that the abducted 2.5-year old Insiya Hemani might be in Germany. On September 29th, a Dutch AMBER Alert was issued for Insiya. The girl is still missing.

The police responsible for the investigation of the abducted toddler expects the child won’t be in Germany for a long period of time. It is unknown if she is accompanied by her father or by someone else. Therefore the Dutch police urges the public to stay on the lookout for the girl. If you have any information about this case, please contact: 0800 6070 (the Netherlands) or +31 79 345 9876 (from outside the Netherlands).

Oct 11th: The mother of the abducted 2.5-year old Insiya Hemani has posted an emotional Facebook message saying she is extremely thankful to all who joined the search for her daughter. “Every second without Insiya is unbearable”.

I am extremely thankful to all who are helping to find her and also to those who have been sharing these messages”, says Insiya’s mother. The Dutch police issued an AMBER Alert for the toddler on Thursday, September 29th. The AMBER Alert reached 11 million Dutch citizens. The alert was also disseminated by AMBER Alert Europe. The AMBER Alert has been cancelled, Insiya is still missing. Knowing that there are so many people on the lookout for Inisya, gives Inisya’s mother hope: “All your support and messages give me hope and assure me that I am not alone in this search. Therefore I request you to keep sharing this post, also in Europe, India and the rest of the world… Help me find my daughter.”

Oct 4th: The AMBER Alert reached 11 million Dutch citizens. The AMBER Alert was disseminated via social media, gas stations, public transport and and popular mobile apps. The AMBER Alert was also disseminated via AMBER Alert Europe’s Police Expert Network.

Oct 4th: A second suspect has been arrested. The police suspects the man is involved in the abduction of the 2.5-year old Insiya. The Police is still searching for the third abductor and the father of the child.

Sep 29th: One of the abducters has been arrested after a local resident captured him.

Sep 29th: The Dutch AMBER which was issued today for the 2.5-year old Insiya Hemani from Amsterdam has been cancelled. The girl is still missing.

The Dutch police suspects the girl, who was abducted, has been taken abroad and is now in the company of her father, Shehzad H.. The AMBER Alert has reached 10.850.031 Dutch citizens. Thank you all for being on the lookout!

For more information, please see: https://www.politie.nl/gezocht-en-vermist/vermiste-kinderen/2016/september/insiya-hemani.html. If you have any information about this case, please contact: 0800 6070 (the Netherlands) or +31 79 345 9876 (from outside the Netherlands).

 

Netherlands / India: PROSECUTOR WANTS KIDNAPPED GIRL’S FATHER BACK ON INTERPOL WANTED LIST


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Interpol withdrew an international arrest warrant against Shehzad Hemani, who had his daughter  kidnapped from Amsterdam in September 2016. The Public Prosecutor does not accept this and will keep trying to have Hemani arrested, NOS reports.

Insiya was kidnapped from her grandmother’s home in September 2016 and taken to Mumbai in India. The now almost 4-year-old girl is still in India with her father. Several civil proceedings are underway to get her back, though a Dutch court recently ruled that the matter

The arrest warrant was withdrawn because Interpol considers this a “private matter” of parental authority. But Interpol was not aware that Insiya was violently abducted, a spokesperson for the Public Prosecutor said to NOS. Further steps will be taken to get Hemani arrested, she said, but wouldn’t say what steps.

Hemani and four other suspects are charged with unlawful deprivation of liberty, abduction, and removing a child from parental authority. The Prosecutor hopes to have Hemani arrested so that he can stand trial in the fall.

If you have any questions or concerns regarding parental abduction to or from India or The Netherlands,  feel free to contact us 24 / 7.  We are always available at contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311)

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USA: 1999 Amendment to the United States UCCJEA


politics_congress
1999 Update to SB668, US Senate
 
 
UNFINISHED BUSINESS
 
Bill No: SB 668
Author: Sher (D)
Amended: 7/15/99
Vote: 21
 
SENATE JUDICIARY COMMITTEE : 9-0, 4/6/99
AYES: Burton, Escutia, Haynes, Morrow, O’Connell, Peace,
Sher, Wright, Schiff
 
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
 
SENATE FLOOR : 37-0 (Consent), 5/13/99
AYES: Alarcon, Alpert, Baca, Bowen, Brulte, Burton,
Chesbro, Costa, Dunn, Escutia, Figueroa, Hayden, Haynes,
Hughes, Johannessen, Johnson, Johnston, Karnette, Kelley,
Knight, Leslie, Lewis, McPherson, Monteith, Morrow,
Mountjoy, Murray, O’Connell, Peace, Polanco, Poochigian,
Rainey, Schiff, Sher, Solis, Vasconcellos, Wright
NOT VOTING: Ortiz, Perata, Speier
ASSEMBLY FLOOR : 77-0, 8/26/99 (Passed on Consent) – See
last page for vote
 
SUBJECT : Uniform Child Custody Jurisdiction and
Enforcement Act
 
SOURCE : California Commission on Uniform State Laws
 
DIGEST : This bill repeals the Uniform Child Custody
Jurisdiction Act and enacts the Uniform Child Custody
Jurisdiction and Enforcement Act. The Uniform Child
CONTINUED
 
 
SB 668
Page
2
 
Custody Jurisdiction and Enforcement Act conform current
California law (the Uniform Child Custody Jurisdiction Act)
to key provisions of the federal Parental Kidnapping
Prevention Act. The new Uniform Child Custody Jurisdiction
and Enforcement Act gives priority jurisdiction to courts
in a child’s home state and limit child custody
jurisdiction to one state until all parties have exited the
initial state in which jurisdiction is established. The
bill provides for enforcement of child custody orders in
interstate disputes.
 
Assembly Amendments moved the legislative intent language
to another section of the bill.
 
ANALYSIS :
 
Home State Priority
 
Existing law pursuant to the Uniform Child Custody
Jurisdiction Act (UCCJA) provides four bases for taking
jurisdiction over a child custody dispute: the child’s
home state; significant connection between the state and
parties to a child custody dispute; emergency jurisdiction
when the child is present and the child’s welfare is
threatened; and, presence of the child in the state when
there is no other state with another sound basis for taking
jurisdiction. Under the Parental Kidnapping Prevention Act
(PKPA), the child’s home state is so significantly better
than any other jurisdiction, that it should always be the
priority ground. Thus, under PKPA, home state always has
the first opportunity to take jurisdiction.
 
This bill conforms state law to the PKPA, providing that
any state that is not the “home state” of the child shall
defer to the “home state,” if there is one, in taking
jurisdiction over a child custody dispute. Temporary
emergency jurisdiction may be taken by a state not the home
state, but only to secure the safety of a threatened
person and to transfer the proceeding to the home state.
 
Emergency Jurisdiction
 
Existing law , under the UCCJA, provides that the grounds
for taking emergency jurisdiction are on an equal footing
 
 
SB 668
Page
3
 
with the other grounds for taking jurisdiction, including
the “home state” ground.
 
This bill provides for temporary emergency jurisdiction,
that can ripen into continuing jurisdiction only if no
other state with grounds for continuing jurisdiction can be
found or, if one is found, that state declines to take
jurisdiction.
 
Continuing Exclusive Jurisdiction of State that Entered
Decree
 
Existing law , under the UCCJA, allows jurisdiction to shift
if the initial ground for taking jurisdiction ceases to
exist. Thus, if a state takes jurisdiction over a child
custody dispute because it is the home state of the child
and the child subsequently moves to a new state,
jurisdiction can shift to the new home state, even if one
parent remains in the child’s original home state.
 
This bill provides for exclusive continuing jurisdiction
for the state that entered the decree until every party to
the dispute has exited that state. This, the National
Conference of Commissioners of Uniform State Laws states,
provides the clear basis for a court to relinquish
jurisdiction and solves the problem of parties being left
with no court to hear a dispute if a court declines
jurisdiction after only informal contact with another
court.
 
Enforcement Provisions
 
Existing law currently provides no uniform method of
enforcing custody and visitation orders validly entered in
another state. While both the UCCJA and the PKPA direct
the enforcement of visitation and custody orders, neither
act provides enforcement procedures or remedies.
 
This bill provides several remedies for the interstate
enforcement of a custody determination:
 
1.A procedure for registering a custody determination in
another state.
 
 
SB 668
Page
4
 
2.A court procedure for the consideration and resolution of
the enforcement of orders along the lines of habeas
corpus.
 
3.A warrant may be issued by the enforcing court to take
physical possession of a child if the court is concerned
that the parent with the child will flee or harm the
child, along with a petition for an expedited proceeding.
 
4.A role for public authorities, such as prosecutors, in
the process of enforcing custody and visitation orders.
 
Specification of Coverage
 
Under existing law there is no consensus on whether the
UCCJA applies to cases involving neglect, abuse,
dependency, wardship, guardianship, termination of parental
rights, and protection from domestic violence proceedings.
 
This bill provides a broad definition of coverage that,
with the exception of adoption, includes virtually all
cases that can involve custody of or visitation with a
child as a “custody determination.”
 
Role of “Best Interests”
 
Under existing law there exists “best interest” language in
the jurisdictional section of the UCCJA.
 
This bill eliminates the term “best interest” in order to
clearly distinguish between the jurisdictional standards
and the substantive standards relating to custody and
visitation of children where the best interest standard is
appropriate. The “best interest” language in the
jurisdictional section of the current UCCJA is often
misused to attempt to override jurisdictional
determinations, arguing that the best interest of the child
should control such decisions.
 
This bill states that it is the interest of the Legislature
that the grounds on which a court may exercise temporary
emergency jurisdiction be expanded. It is from the intent
that these grounds include those that existed under Section
3403 of the Family Code, as that section read on December
 
 
SB 668
Page
5
 
31, 1999, particularly including cases involving domestic
violence.
 
The bill states that it is the intent of the Legislature in
enacting the provisions of this bill that the grounds on
which a court may exercise temporary emergency jurisdiction
be expanded. It is further the intent of the Legislature
that these grounds include those that existed under Section
3403 of the Family Code as that section read on December
31, 1999, particularly including cases involving domestic
violence.
 
Background
In 1968, the Uniform Law Commissioners promulgated the
Uniform Child Custody Jurisdiction Action (UCCJA). By
1981, every state had adopted the Uniform Act. The UCCJA
was designed to discourage interstate kidnapping of
children by their non-custodial parents. Before the UCCJA,
it was easier for non-custodial parents to take children
across state lines in an attempt to find sympathetic courts
willing to reverse unfavorable custody orders.
 
In 1980, Congress adopted the Parental Kidnapping
Prevention Act (PKPA) to address the interstate custody
jurisdictional problems that continued to exist after the
adoption of the UCCJA. Despite the UCCJA, some states
continued to modify out-of-state custody orders, refusing
to give the orders deference under the Full Faith and
Credit Clause of the Constitution of the United States.
The PKPA was an effort to put the weight of full faith and
credit behind the principles of the UCCJA.
 
Unfortunately, there are two fundamental differences in the
two acts, based on application of jurisdictional
principles. These differences are:
 
1.The UCCJA does not give first priority to the “home
state” of the child in determining which state may
exercise jurisdiction over a child custody dispute. The
PKPA does.
 
2.The PKPA provides that once a state has exercised
jurisdiction, it maintains continuing, exclusive
 
 
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jurisdiction until every party to the dispute has exited
that state. The UCCJA simply states that a legitimate
exercise of jurisdiction must be honored by any other
state until the basis for that exercise of jurisdiction
no longer exists.
 
According to the Uniform Law Commissioners, in practice,
the two acts tend to work together for the most part, but
the differences do confuse the adjudication and settlement
of child custody disputes in certain cases. This bill
would replace the existing UCCJA with a new Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA). The new
UCCJEA would reconcile UCCJA principles with the PKPA. It
would also add a section dealing with interstate civil
enforcement for child custody orders. Neither the current
UCCJA nor the PKPA address this important issue at this
time.
 
With the exception of changes in one provision, this bill
mirrors SB 1717 (Sher) of 1998. The Governor’s veto
message referred to problems which have been corrected in
this bill.
 
The comment of the National Conference of Commissioners on
Uniform State Laws tot he section of the UCCHEA states the
purpose of the Act.
 
1.Avoid jurisdictional competition and conflict with courts
of other States in matters of child custody which have in
the past resulted in the shifting of children from state
to state with harmful effects on their well-being.
 
2.Promote cooperation with the courts of the states to the
end that a custody decree is rendered in that state which
can best decide the case in the interest of the child.
 
3.Discourage the use of the interstate system for
continuing controversies over child custody.
 
4.Deter abductions of children.
 
5.Avoid relitigation of custody decisions of other states
in this state.
 
 
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6.Facilitate the enforcement of custody decrees of other
states.
 
At this time approximately ten (10) states have introduced
legislation to adopt the UCCJEA. As discussed above, the
UCCJEA primarily seeks to conform state laws to the federal
requirements of the PKPA. Thus, California would not be at
a disadvantage to pass the UCCJEA early in the process
since all states are already required to comply with the
requirements of PKPA. In other words, the federal
government has preempted the field in the interstate child
custody disputes with PKPA and thus the federal
requirements control when there is a conflict with state
law. Adopting the revised UCCJEA would simply remove the
confusion created by the inconsistent provisions of state
law and reduce the likelihood of inharmonious decisions.
 
Prior Legislation
 
SB 1717 (Sher), 1997-98 Session: Senate Floor Vote: 38-0.
Vetoed by the Governor.
 
The Governor’s veto message for SB 1717 (Sher) stated:
 
“…Most of the provisions of this measure are
unobjectionable. However, the section relating to the
first pleading in a child custody proceeding (3429),
contains ambiguous language that could lead to the
release of confidential address information. Domestic
violence shelters are understandably concerned that this
provision may allow their locations to be disclosed,
whereas under existing law no such possibility exists?.”
 
This bill has been amended to require that where there are
allegations of domestic violence or child abuse, any
addresses of the party alleging violence or abuse and of
the child which are unknown to the other party are to be
kept confidential and shall not be disclosed in the
pleading or affidavit.
 
The Governor’s veto message further objects to the
ambiguity of a provision in SB 1717 regarding an implied
“in camera hearing” to determine whether addresses and
other information should or should not be disclosed where
 
 
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allegations of domestic violence or child abuse had been
made.
 
Under this bill, that objectionable provision has been
deleted.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
 
SUPPORT : (Verified 8/26/99)
 
California Commission on Uniform State Laws (source)
California Judges Association
 
ARGUMENTS IN SUPPORT : The sponsor of the bill, the
California Commission on Uniform State Laws, contends that
the UCCJEA, the UCCJA and the PKPA are necessary because
Americans are very mobile and seldom stay in one state.
Child custody disputes between parents are impacted by that
very mobility. When parents and children live in one
state, there is no dispute that the courts of that state
may take jurisdiction over any child custody matter.
However, when one parent has moved to another state, more
than one state may have the power to adjudicate a dispute
between the parties. If more than one state does exercise
its power, the competing decisions simply confuse, rather
than conclude, the dispute.
 
The potential confusion is exacerbated by the fact that
child custody orders are modifiable orders, subject to
reconsideration and change, until the children reach the
age of majority. A problem can arise when one parent and
the child moves to another state after the original order
was decided. The question becomes whether that second
state can modify the order of the first state and if so,
the question arises which order should be recognized and
enforced in the first and every other state.
 
Prior to uniform acts that apply to these types of
interstate custody disputes, the result was often parental
kidnapping of children to exploit the interstate confusion
of orders. The revised UCCJEA, along with the PKPA,
establishes clear bases for taking jurisdiction and
 
 
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provides rules that discourage competing child custody
orders.
 
This bill would give home state jurisdiction top priority
over all other jurisdictional bases. “Home state” under
the bill is defined as:
 
“…the State in which a child lived with a parent or a
person acting as a parent for at least six consecutive
months immediately before the commencement of a child
custody proceeding. In the case of a child less than six
months of age, the term means the State in which the
child lived from birth with any of the persons mentioned.
A period of temporary absence of any of the mentioned
person is part of the period.”
 
The UCCJA provided four independent and concurrent bases of
jurisdiction. The PKPA provides that full faith and credit
can only be given to an initial custody determination of a
“significant connection” state when there is no home state.
This bill would give top priority to home state
jurisdiction in the same manner as the PKPA, thereby
eliminating any potential conflict between the two Acts and
assuring that all orders issued in California are afforded
full faith and credit in all other states.
 
Proponents of this bill state that the impact of these
three changes, i.e., priority for home state jurisdiction,
continuing exclusive jurisdiction and temporary emergency
jurisdiction, is that orders made pursuant to the UCCJEA
will have the full weight of the Full Faith and Credit
clause of the U.S. Constitution behind them.
 
ASSEMBLY FLOOR : 77-0, 8/26/99
AYES: Aanestad, Ackerman, Alquist, Aroner, Ashburn,
Baldwin, Bates, Battin, Bock, Brewer, Briggs, Calderon,
Campbell, Cardenas, Cardoza, Cedillo, Corbett, Correa,
Cox, Cunneen, Davis, Dickerson, Ducheny, Dutra,
Firebaugh, Floyd, Frusetta, Gallegos, Granlund, Havice,
Hertzberg, Honda, House, Jackson, Kaloogian, Keeley,
Knox, Kuehl, Leach, Lempert, Leonard, Longville,
Lowenthal, Machado, Maddox, Maldonado, Margett, Mazzoni,
McClintock, Migden, Nakano, Olberg, Oller, Robert
 
 
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Pacheco, Rod Pacheco, Papan, Pescetti, Reyes, Romero,
Runner, Scott, Shelley, Soto, Steinberg, Strickland,
Strom-Martin, Thompson, Thomson, Torlakson, Vincent,
Washington, Wayne, Wiggins, Wildman, Wright, Zettel,
Villaraigosa
NOT VOTING: Baugh, Florez, Wesson
 
RJG:cm 8/26/99 Senate Floor Analyses
 
SUPPORT/OPPOSITION: SEE ABOVE
 
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