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CHANGES TO KANSAS CHILD CUSTODY LAW (1999) 1999 House
Judiciary Committee 1999-2000
Kansas Legislative Session TESTIMONY
OF RONALD W. NELSON Needed Changes in Kansas Child
Custody Law – 1999 HB 2002 Mr. Chairman and Members of the Committee: My name is Ronald W. Nelson. I am a lawyer engaged in
private practice in Overland Park, Kansas with approximately 85% of my
practice in the area of family law. I am the President Elect of the Kansas
Bar Association Family Law Section and I am the Vice Chair of the Child
Custody Committee of the American Bar Association Family Law Section. I have
written a number of articles and presented seminars on various areas of
domestic law, including articles on the Uniform Child Custody Jurisdiction
and Enforcement Act. The Kansas Bar Association favors the passage of the
Uniform Child Custody Jurisdiction and Enforcement Act. In 1966 the National Council of
Commissioners on Uniform State Laws (a national organization composed of
representatives of all 50 states) recommended passage of the Uniform Child
Custody Jurisdiction Act. This original recommendation for passage was made “[t]o remedy this intolerable state of affairs
[existing at that time] where self-help
and the rule of ‘seize-and-run’ prevail rather than the orderly process of
the law. . . .” Prefatory Note, Uniform Child Custody Jurisdiction Act, 9 U.L.A. 117 (Part I, 1988). This
Act was enacted into law by the state of Kansas in
1978. 1978 Kan. Sess. Laws, Ch. 231. Since the original recommendation by the
Uniform Laws Commission, all fifty states have enacted the UCCJA, with
Massachusetts being the last state to enact the UCCJA effective December 21,
1983. Mass.Gen.Laws Ann. Ch. 209B, §§1‑14. Since its enactment, the UCCJA has provided a significant
improvement in the way in which jurisdictional disputes have been handled in
the states’ courts resulting in greater predictability of which state should
handle custody disputes and significantly impacting on the practice in
existence before passage of the UCCJA of a parent running from state to state
to state trying to find a court in which a stay behind parents right could be
negatively effected. As a result of various national studies showing conflicts
in interpretation of the UCCJA by various states, as well as significant
federal laws that impacted on the Act which had been enacted after the
original draft of the UCCJA, the Family Law Committee of NCCUSL determined in
1994 that the Act needed to be revised to ensure consistency and resolve
conflicts. Over the next three years, drafting committees worked on revisions
to the original UCCJA. At its annual meeting in 1997, the National Conference
of Commissioners on Uniform State Laws approved a major revision of the
Uniform Child Custody Jurisdiction Act. The revision, titled the Uniform
Child Custody Jurisdiction and Enforcement Act (UCCJEA) modifies and
supplements the existing UCCJA in a few different ways: First, it revises the law on child
custody jurisdiction in light of significant federal laws which have been
enacted since the original drafting date, including the Parental Kidnapping
Prevention Act (28 U.S.C. 1738A), the Indian Child Welfare Act of 1978 (25
U.S.C. 1901, et seq.), the International Child Abduction Remedies Act (42
U.S.C. § 11601, et seq.), and other significant Acts. Second, the UCCJEA revises the law
in consideration of over thirty years of contradictory case law. Over the time since the original UCCJA was enacted some states’
courts have read various important provisions of the Act in diametric
opposition to the way in which the Uniform Laws Commission originally
anticipated. In some cases, those conflicting interpretations have led to
situations in which two states have exercised jurisdiction over the same
child although that is exactly the situation the Act sought to avoid. As a
result, the Uniform Laws Commission has modified Article 2 of the Act so that
it provides a more clear way in which a
determination can be made of which State is to exercise original jurisdiction
over a child-custody determination. It also, for the first time, enunciates a
standard of continuing jurisdiction and clarifies modification jurisdiction
(which the Kansas Legislature foresaw as a needed addition by adding K.S.A.
38-1335 in 1980). Other aspects of the Article harmonize the law on what
happens when simultaneous proceedings occur, application of the “clean hands”
doctrine, and rules regarding “inconvenient forum.” Perhaps the most important
inclusion in the UCCJEA and the only significant addition, however, is to be
found in Article 3 which provides for an expedited
process to enforce child custody and visitation determinations. This Article,
for the first time, sets forth a simple and uniform method by which a existing orders of child custody, residency or
visitation can be enforced. This Article is based on
the provisions of the Hague Convention on International Child Abduction and
sets forth strong means for enforcement of those Orders. The 1999 Interim Judiciary
Committee passed out the Uniform Child Custody Jurisdiction and Enforcement
Act with various additions necessary to modify all laws affected by child
custody jurisdiction issues, making clear (as is intended by the UCCJEA, and
as has been found applicable by the Kansas Supreme Court) that actions for
guardianship, child in need of care, determination of parentage, and other
similar matters are included. In the Interim Committee hearings,
it was suggested that some additional jurisdictional
provisions be added to the adoption statutes since the UCCJEA specifically
excludes adoptions from its coverage. The reason for this exclusion is
because NCCUSL also has recommended for passage a Uniform Adoption Act that
includes jurisdictional provisions specific to adoptions. The suggested
additions to the Act in the Interim Committee sought to incorporate
provisions from the Uniform Adoption Act since, without any addition, the
UCCJEA would exclude adoption (see UCCJEA Section 203), but the Kansas
Adoption statutes do not include any independent jurisdictional provisions. In reviewing the various
proposals, it appears the Kansas Legislature has two alternatives in dealing
with this situation: First, and easiest, the
Legislature could simply remove the exclusion of adoption for the Act. This would be accomplished merely by deleting subsection (a) of
UCCJEA 103. This is probably the easiest and best way to deal with this
issue. If this is the choice of the Legislature, then Section 103 of the Act
(as included in SB282) should be amended as follows: 35 New Sec. 3. (UCCJEA 103). This act does not govern If this
choice is selected, K.S.A. 59-2127(a) can be deleted
in total. Second, the Legislature could include modified provisions
of the Uniform Adoption Act into the Act. The Interim Committee incorporated
the jurisdictional provisions of the UAA into the UCCJEA. However, in
reviewing those provisions, it appears there are some additional
modifications that need to be made to coordinate
those sections with the federal Parental Kidnapping Prevention Act. Those are
as follows: 13 Sec. 45. K.S.A. 59-2127 is
hereby amended to read as follows: 59- 20 1 care; 21 1 By adding these provisions, the language complies with the
provisions of the federal Parental Kidnapping Prevention Act by including a
preference for “home state” jurisdiction and an order for acceptance of
jurisdiction if not home state.
___________________________________ 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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