2008 Legislation
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SENATE BILL NO. 1263<br /> – Uniform child abduction preventn


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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

Bill Text

  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   Second Regular Session - 2008


                                       IN THE SENATE

                                    SENATE BILL NO. 1263

                              BY JUDICIARY AND RULES COMMITTEE

  1                                        AN ACT
 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

 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.


  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


  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;


  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


  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.


  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;


  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.

 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 / Fiscal Impact

                       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.

Name: Senator Bart Davis 
Phone: 332-1305
Name: Dale G. Higer
Phone: 345-1432

STATEMENT OF PURPOSE/FISCAL NOTE                        S 1263