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S1263................................................by JUDICIARY AND RULES
UNIFORM CHILD ABDUCTION PREVENTION ACT - Adds to existing law to provide
for the Uniform Child Abduction Prevention Act; to define terms; to provide
for cooperation and communication among courts; to provide actions for
abduction prevention measures; to provide for jurisdiction; to provide for
the contents of a petition; to provide for factors and evidence to be
considered by the court; to provide for provisions and measures to prevent
abduction; to provide for warrants to take physical custody; to provide for
the duration of an abduction prevention order; to provide for the
uniformity of application; and to provide relation to the Electronic
Signatures in Global and National Commerce Act.
01/14 Senate intro - 1st rdg - to printing
01/15 Rpt prt - to Jud
01/28 Rpt out - rec d/p - to 2nd rdg
01/29 2nd rdg - to 3rd rdg
01/31 3rd rdg - PASSED - 34-0-1
AYES -- Andreason, Bair, Bastian, Bilyeu, Broadsword, Burkett,
Cameron, Coiner, Corder, Darrington, Davis, Fulcher, Geddes, Goedde,
Hammond, Heinrich, Hill, Jorgenson, Kelly, Keough, Langhorst, Little,
Lodge, Malepeai(Sagness), McGee, McKague, McKenzie, Pearce,
Richardson, Schroeder, Siddoway, Stegner, Stennett(Thorson), Werk
NAYS -- None
Absent and excused -- Gannon
Floor Sponsor - Kelly
Title apvd - to House
02/01 House intro - 1st rdg - to Jud
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-ninth Legislature Second Regular Session - 2008IN THE SENATE SENATE BILL NO. 1263 BY JUDICIARY AND RULES COMMITTEE 1 AN ACT 2 RELATING TO CHILDREN; AMENDING TITLE 32, IDAHO CODE, BY THE ADDITION OF A NEW 3 CHAPTER 15, TITLE 32, IDAHO CODE, TO PROVIDE FOR THE UNIFORM CHILD ABDUC- 4 TION PREVENTION ACT, TO PROVIDE A SHORT TITLE, TO DEFINE TERMS, TO PROVIDE 5 FOR COOPERATION AND COMMUNICATION AMONG COURTS, TO PROVIDE ACTIONS FOR 6 ABDUCTION PREVENTION MEASURES, TO PROVIDE FOR JURISDICTION, TO PROVIDE FOR 7 THE CONTENTS OF A PETITION, TO PROVIDE FACTORS AND EVIDENCE TO BE CONSID- 8 ERED BY THE COURT, TO PROVIDE FOR PROVISIONS AND MEASURES TO PREVENT 9 ABDUCTION, TO PROVIDE FOR AN EX PARTE WARRANT TO TAKE PHYSICAL CUSTODY OF 10 A CHILD, TO PROVIDE FOR THE DURATION OF AN ABDUCTION PREVENTION ORDER, TO 11 PROVIDE FOR THE UNIFORMITY OF APPLICATION OF THE UNIFORM ACT AND TO PRO- 12 VIDE RELATION TO THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE 13 ACT. 14 Be It Enacted by the Legislature of the State of Idaho: 15 SECTION 1. That Title 32, Idaho Code, be, and the same is hereby amended 16 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap- 17 ter 15, Title 32, Idaho Code, and to read as follows: 18 CHAPTER 15 19 UNIFORM CHILD ABDUCTION PREVENTION ACT 20 32-1501. SHORT TITLE. This chapter may be cited as the "Uniform Child 21 Abduction Prevention Act." 22 32-1502. DEFINITIONS. In this chapter: 23 (1) "Abduction" means the wrongful removal or wrongful retention of a 24 child. 25 (2) "Child" means an unemancipated individual who is less than eighteen 26 (18) years of age. 27 (3) "Child custody determination" means a judgment, decree or other order 28 of a court providing for the legal custody, physical custody or visitation 29 with respect to a child. The term includes a permanent, temporary, initial and 30 modification order. 31 (4) "Child custody proceeding" means a proceeding in which legal custody, 32 physical custody or visitation with respect to a child is at issue. The term 33 includes a proceeding for divorce, dissolution of marriage, separation, 34 neglect, abuse, dependency, guardianship, paternity, termination of parental 35 rights or protection from domestic violence. 36 (5) "Court" means an entity authorized under the law of a state to estab- 37 lish, enforce or modify a child custody determination. 38 (6) "Petition" includes a motion or its equivalent. 39 (7) "Record" means information that is inscribed on a tangible medium or 40 that is stored in an electronic or other medium and is retrievable in 41 perceivable form. 2 1 (8) "State" means a state of the United States, the District of Columbia, 2 Puerto Rico, the United States Virgin Islands or any territory or insular pos- 3 session subject to the jurisdiction of the United States. The term includes a 4 federally recognized Indian tribe or nation. 5 (9) "Travel document" means records relating to a travel itinerary, 6 including travel tickets, passes, reservations for transportation or accommo- 7 dations. The term does not include a passport or visa. 8 (10) "Wrongful removal" means the taking of a child that breaches rights 9 of custody or visitation given or recognized under the law of this state. 10 (11) "Wrongful retention" means the keeping or concealing of a child that 11 breaches rights of custody or visitation given or recognized under the law of 12 this state. 13 32-1503. COOPERATION AND COMMUNICATION AMONG COURTS. Sections 32-11-110, 14 32-11-111 and 32-11-112, Idaho Code, apply to cooperation and communication 15 among courts in proceedings under this chapter. 16 32-1504. ACTIONS FOR ABDUCTION PREVENTION MEASURES. (1) A court on its 17 own motion may order abduction prevention measures in a child custody proceed- 18 ing if the court finds that the evidence establishes a credible risk of abduc- 19 tion of the child. 20 (2) A party to a child custody determination or another individual or 21 entity having a right under the law of this state or any other state to seek a 22 child custody determination for the child may file a petition seeking abduc- 23 tion prevention measures to protect the child under this chapter. 24 (3) A prosecutor or public authority designated under section 32-11-315, 25 Idaho Code, may seek a warrant to take physical custody of a child under sec- 26 tion 32-1509, Idaho Code, or other appropriate prevention measures. 27 32-1505. JURISDICTION. (1) A petition under this chapter may be filed 28 only in a court that has jurisdiction to make a child custody determination 29 with respect to the child at issue under chapter 11, title 32, Idaho Code. 30 (2) A court of this state has temporary emergency jurisdiction under sec- 31 tion 32-11-204, Idaho Code, if the court finds a credible risk of abduction. 32 32-1506. CONTENTS OF PETITION. A petition under this chapter must be ver- 33 ified and include a copy of any existing child custody determination, if 34 available. The petition must specify the risk factors for abduction, including 35 the relevant factors described in section 32-1507, Idaho Code. Subject to sec- 36 tion 9-340A, Idaho Code, if reasonably ascertainable, the petition must con- 37 tain: 38 (1) The name, date of birth and gender of the child; 39 (2) The customary address and current physical location of the child; 40 (3) The identity, customary address and current physical location of the 41 respondent; 42 (4) A statement of whether a prior action to prevent abduction or domes- 43 tic violence has been filed by a party or other individual or entity having 44 custody of the child, and the date, location and disposition of the action; 45 (5) A statement of whether a party to the proceeding has been arrested 46 for a crime related to domestic violence, stalking or child abuse or neglect, 47 and the date, location and disposition of the case; and 48 (6) Any other information required to be submitted to the court for a 49 child custody determination under section 32-11-209, Idaho Code. 50 32-1507. FACTORS TO DETERMINE RISK OF ABDUCTION. (1) In determining 3 1 whether there is a credible risk of abduction of a child, the court shall con- 2 sider any evidence that the petitioner or respondent: 3 (a) Has previously abducted or attempted to abduct the child; 4 (b) Has threatened to abduct the child; 5 (c) Has recently engaged in activities that may indicate a planned abduc- 6 tion, including: 7 (i) Abandoning employment; 8 (ii) Selling a primary residence; 9 (iii) Terminating a lease; 10 (iv) Closing bank or other financial management accounts, liquidat- 11 ing assets, hiding or destroying financial documents or conducting 12 any unusual financial activities; 13 (v) Applying for a passport or visa or obtaining travel documents 14 for the respondent, a family member or the child; or 15 (vi) Seeking to obtain the child's birth certificate or school or 16 medical records; 17 (d) Has engaged in domestic violence, stalking or child abuse or neglect; 18 (e) Has refused to follow a child custody determination; 19 (f) Lacks strong familial, financial, emotional or cultural ties to the 20 state or the United States; 21 (g) Has strong familial, financial, emotional or cultural ties to another 22 state or country; 23 (h) Is likely to take the child to a country that: 24 (i) Is not a party to the Hague convention on the civil aspects of 25 international child abduction and does not provide for the extradi- 26 tion of an abducting parent or for the return of an abducted child; 27 (ii) Is a party to the Hague convention on the civil aspects of 28 international child abduction but: 29 1. The Hague convention on the civil aspects of international 30 child abduction is not in force between the United States and 31 that country; 32 2. Is noncompliant according to the most recent compliance 33 report issued by the United States department of state; or 34 3. Lacks legal mechanisms for immediately and effectively 35 enforcing a return order under the Hague convention on the civil 36 aspects of international child abduction; 37 (iii) Poses a risk that the child's physical or emotional health or 38 safety would be endangered in the country because of specific circum- 39 stances relating to the child or because of human rights violations 40 committed against children; 41 (iv) Has laws or practices that would: 42 1. Enable the respondent, without due cause, to prevent the 43 petitioner from contacting the child; 44 2. Restrict the petitioner from freely traveling to or exiting 45 from the country because of the petitioner's gender, national- 46 ity, marital status or religion; or 47 3. Restrict the child's ability legally to leave the country 48 after the child reaches the age of majority because of the 49 child's gender, nationality or religion; 50 (v) Is included by the United States department of state on a cur- 51 rent list of state sponsors of terrorism; 52 (vi) Does not have an official United States diplomatic presence in 53 the country; or 54 (vii) Is engaged in active military action or war, including a civil 55 war, to which the child may be exposed; 4 1 (i) Is undergoing a change in immigration or citizenship status that 2 would adversely affect the respondent's ability to remain in the United 3 States legally; 4 (j) Has had an application for United States citizenship denied; 5 (k) Has forged or presented misleading or false evidence on government 6 forms or supporting documents to obtain or attempt to obtain a passport, a 7 visa, travel documents, a social security card, a driver's license or 8 other government issued identification card or has made a misrepresenta- 9 tion to the United States government; 10 (l) Has used multiple names to attempt to mislead or defraud; or 11 (m) Has engaged in any other conduct the court considers relevant to the 12 risk of abduction. 13 (2) In the hearing on a petition under this chapter, the court shall con- 14 sider any evidence that the respondent believed in good faith that the 15 respondent's conduct was necessary to avoid imminent harm to the child or 16 respondent and any other evidence that may be relevant to whether the respond- 17 ent may be permitted to remove or retain the child. 18 32-1508. PROVISIONS AND MEASURES TO PREVENT ABDUCTION. (1) If a petition 19 is filed under this chapter, the court may enter an order that must include: 20 (a) The basis for the court's exercise of jurisdiction; 21 (b) The manner in which notice and opportunity to be heard were given to 22 the persons entitled to notice of the proceeding; 23 (c) A detailed description of each party's custody and visitation rights 24 and residential arrangements for the child; 25 (d) A provision stating that a violation of the order may subject the 26 party in violation to civil and criminal penalties; and 27 (e) Identification of the child's country of habitual residence at the 28 time of the issuance of the order. 29 (2) If, at a hearing on a petition under this chapter or on the court's 30 own motion, the court after reviewing the evidence finds a credible risk of 31 abduction of the child, the court shall enter an abduction prevention order. 32 The order must include the provisions required by subsection (1) of this sec- 33 tion and measures and conditions, including those in subsections (3), (4) and 34 (5) of this section, that are reasonably calculated to prevent abduction of 35 the child, giving due consideration to the custody and visitation rights of 36 the parties. The court shall consider the age of the child, the potential harm 37 to the child from an abduction, the legal and practical difficulties of 38 returning the child to the jurisdiction if abducted and the reasons for the 39 potential abduction, including evidence of domestic violence, stalking, or 40 child abuse or neglect. 41 (3) An abduction prevention order may include one (1) or more of the fol- 42 lowing: 43 (a) An imposition of travel restrictions that require that a party 44 traveling with the child outside a designated geographical area provide 45 the other party with the following: 46 (i) The travel itinerary of the child; 47 (ii) A list of physical addresses and telephone numbers at which the 48 child can be reached at specified times; and 49 (iii) Copies of all travel documents; 50 (b) A prohibition of the respondent directly or indirectly: 51 (i) Removing the child from this state, the United States, or 52 another geographic area without permission of the court or the 53 petitioner's written consent; 54 (ii) Removing or retaining the child in violation of a child custody 5 1 determination; 2 (iii) Removing the child from school or a child care or similar 3 facility; or 4 (iv) Approaching the child at any location other than a site desig- 5 nated for supervised visitation; 6 (c) A requirement that a party register the order in another state as a 7 prerequisite to allowing the child to travel to that state; 8 (d) With regard to the child's passport: 9 (i) A direction that the petitioner place the child's name in the 10 United States department of state's child passport issuance alert 11 program; 12 (ii) A requirement that the respondent surrender to the court or the 13 petitioner's attorney any United States or foreign passport issued in 14 the child's name, including a passport issued in the name of both the 15 parent and the child; and 16 (iii) A prohibition upon the respondent from applying on behalf of 17 the child for a new or replacement passport or visa; 18 (e) As a prerequisite to exercising custody or visitation, a requirement 19 that the respondent provide: 20 (i) To the United States department of state's office of children's 21 issues and the relevant foreign consulate or embassy, an authenti- 22 cated copy of the order detailing passport and travel restrictions 23 for the child; 24 (ii) To the court: 25 1. Proof that the respondent has provided the information in 26 subparagraph (i) of this paragraph; and 27 2. An acknowledgment in a record from the relevant foreign con- 28 sulate or embassy that no passport application has been made, or 29 passport issued, on behalf of the child; 30 3. To the petitioner, proof of registration with the United 31 States embassy or other United States diplomatic presence in the 32 destination country and with the central authority for the Hague 33 convention on the civil aspects of international child abduc- 34 tion, if that convention is in effect between the United States 35 and the destination country, unless one (1) of the parties 36 objects; and 37 4. A written waiver under the privacy act, 5 U.S.C. section 38 552a, as amended, with respect to any document, application or 39 other information pertaining to the child authorizing its dis- 40 closure to the court and the petitioner; and 41 (f) Upon the petitioner's request, a requirement that the respondent 42 obtain an order from the relevant foreign country containing terms identi- 43 cal to the child custody determination issued in the United States. 44 (4) In an abduction prevention order, the court may impose conditions on 45 the exercise of custody or visitation that: 46 (a) Limit visitation or require that visitation with the child by the 47 respondent be supervised until the court finds that supervision is no 48 longer necessary and order the respondent to pay the costs of supervision; 49 (b) Require the respondent to post a bond or provide other security in an 50 amount sufficient to serve as a financial deterrent to abduction, the pro- 51 ceeds of which may be used to pay for the reasonable expenses of recovery 52 of the child, including reasonable attorney's fees and costs if there is 53 an abduction; and 54 (c) Require the respondent to obtain education on the potentially harmful 55 effects to the child from abduction. 6 1 (5) To prevent imminent abduction of a child, a court may: 2 (a) Issue a warrant to take physical custody of the child under section 3 32-1509, Idaho Code, or the law of this state other than this chapter; 4 (b) Direct the use of law enforcement to take any action reasonably nec- 5 essary to locate the child, obtain return of the child, or enforce a cus- 6 tody determination under this chapter or the law of this state other than 7 this chapter; or 8 (c) Grant any other relief allowed under the law of this state other than 9 this chapter. 10 (6) The remedies provided in this chapter are cumulative and do not 11 affect the availability of other remedies to prevent abduction. 12 32-1509. WARRANT TO TAKE PHYSICAL CUSTODY OF CHILD. (1) If a petition 13 under this chapter contains allegations, and the court finds that there is a 14 credible risk that the child is imminently likely to be wrongfully removed, 15 the court may issue an ex parte warrant to take physical custody of the child. 16 (2) The respondent on a petition under subsection (1) of this section 17 must be afforded an opportunity to be heard at the earliest possible time 18 after the ex parte warrant is executed, but not later than the next judicial 19 day unless a hearing on that date is impossible. In that event, the court 20 shall hold the hearing on the first judicial day possible. 21 (3) An ex parte warrant under subsection (1) of this section to take 22 physical custody of a child must: 23 (a) Recite the facts upon which a determination of a credible risk of 24 imminent wrongful removal of the child is based; 25 (b) Direct law enforcement officers to take physical custody of the child 26 immediately; 27 (c) State the date and time for the hearing on the petition; and 28 (d) Provide for the safe interim placement of the child pending further 29 order of the court. 30 (4) If feasible, before issuing a warrant and before determining the 31 placement of the child after the warrant is executed, the court may order a 32 search of the relevant databases of the national crime information center sys- 33 tem and similar state databases to determine if either the petitioner or 34 respondent has a history of domestic violence, stalking or child abuse or 35 neglect. 36 (5) The petition and warrant must be served on the respondent when or 37 immediately after the child is taken into physical custody. 38 (6) A warrant to take physical custody of a child, issued by this state 39 or another state, is enforceable throughout this state. If the court finds 40 that a less intrusive remedy will not be effective, it may authorize law 41 enforcement officers to enter private property to take physical custody of the 42 child. If required by exigent circumstances, the court may authorize law 43 enforcement officers to make a forcible entry at any hour. 44 (7) If the court finds, after a hearing, that a petitioner sought an ex 45 parte warrant under subsection (1) of this section for the purpose of harass- 46 ment or in bad faith, the court may award the respondent reasonable attorney's 47 fees, costs and expenses. 48 (8) This chapter does not affect the availability of relief allowed under 49 the law of this state other than this chapter. 50 32-1510. DURATION OF ABDUCTION PREVENTION ORDER. An abduction prevention 51 order remains in effect until the earliest of: 52 (1) The time stated in the order; 53 (2) The emancipation of the child; 7 1 (3) The child's attaining eighteen (18) years of age; or 2 (4) The time the order is modified, revoked, vacated or superseded by a 3 court with jurisdiction under sections 32-11-201 through 32-11-203, Idaho 4 Code. 5 32-1511. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and con- 6 struing this uniform act, consideration must be given to the need to promote 7 uniformity of the law with respect to its subject matter among states that 8 enact it. 9 32-1512. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COM- 10 MERCE ACT. This chapter modifies, limits and supersedes the federal electronic 11 signatures in global and national commerce act, 15 U.S.C. section 7001, et 12 seq., but does not modify, limit or supersede section 101(c) of that act, 15 13 U.S.C. section 7001(c), or authorize electronic delivery of any of the notices 14 described in section 103(b) of that act, 15 U.S.C. section 7003(b).
STATEMENT OF PURPOSE
RS 17444
The purpose of the Uniform Child Abduction Prevention Act is
to provide courts with guidelines to follow during custody
disputes and divorce proceedings, to help courts identify
families at risk for abduction, and to provide methods to prevent
the abduction of children.
FISCAL NOTE
There will be no impact on the state's general fund.
Contact
Name: Senator Bart Davis
Phone: 332-1305
Name: Dale G. Higer
Phone: 345-1432
STATEMENT OF PURPOSE/FISCAL NOTE S 1263