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ENACTING THE UNIFORM CHILD ABDUCTION PREVENTION ACT
(UCAPA) 2001 House
Judiciary Committee 2001-2002
Kansas Legislative Session TESTIMONY
OF RONALD W. NELSON Supporting Enactment of the
Uniform Child Abduction Prevention Act (UCAPA) Mr. Chairman and Members of the Committee: Good morning. I am Ronald W. Nelson. I am an Johnson
County lawyer who practices exclusively in the area of domestic relations.
I've been involved in domestic relations issues for a number of years and had
the pleasure of being involved in working on the re-write of the Kansas Child
Custody statutes in 2000. I've written extensively in local, state and
national publications, and presented numerous seminars to lawyers on various
domestic relations issues. My clientele is fairly evenly split between
representation of men and women and I have handled a significant number of
matters, both in the trial and appellate courts regarding those issues. I
have especially focused my practice on high conflict child custody cases,
which involve interstate and international child custody and support issues
and I've handled a significant number of international and interstate cases
in which child abduction has occurred. I'm a Fellow in both the American
Academy of Matrimonial Lawyers and the International Academy of Matrimonial
Lawyers. 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 is an important bill that addresses remedies for a growing problem –
the problem of interstate and international child abduction by parents and
others who seek to use the child as a pawn in disputes with another person.
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, Kansas law has provided that a parent cannot
“kidnap” that parent’s own child. In the absence of temporary or final child
custody orders both parents have equal rights to the “custody” of their child
and either one of them can take their child wherever they want – with or without
the other parents consent. The fact is, however, that as society has become
increasingly mobile, as long distance travel and communication has become
easier and less expensive, as intermarriage between faiths, nationalities and
social groups has become more common, as society has become more complex, and
as the decision of how parent’s should divide their time with their children
has become less based on old ideas that mothers should automatically be
granted primary residency of their children (the tender-years doctrine and
other gender based rules), and as the outcomes of child custody decisions
have become less predictable, the more often parent’s have sought to use
extra-judicial and non-judicial methods of gaining advantage in those
situations. 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,
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 United States.[3]
This new Act does not supersede any law, but provides additional resources
and methods to prevent and address potential, threatened and actual family
child abductions. 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 United States, or
another geographic area without the court’s permission or that of the
petitioner; –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. –imposition
of conditions, restrictions, or supervision on the exercise of custody or
visitation rights. –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.
___________________________________ Ronald W. Nelson Suite 117; 11900 West 87th
Street Parkway Lenexa, Kansas 66215-4715 Telephone: (913) 312-2500 Email: ron@ronaldnelsonlaw.com |
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