SENATE BILL No. 743

 

 

October 11, 2011, Introduced by Senators JONES, SCHUITMAKER and MARLEAU and referred to the Committee on Judiciary.

 

 

 

     A bill to adopt the uniform child abduction prevention act; to

 

allow courts in this state to impose measures to prevent the

 

abduction of children; to establish standards for determining

 

whether a child is subject to a significant risk of abduction; and

 

to provide remedies.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 1. This act shall be known and may be cited as the

 

"uniform child abduction prevention act".

 

     Sec. 2. As used in this act:

 

     (a) "Abduction" means the wrongful removal or wrongful

 

retention of a child.

 

     (b) "Child" means an unemancipated individual who is less than

 

18 years of age.


 

     (c) "Child-custody determination" means a judgment, decree, or

 

other order of a court providing for the legal custody, physical

 

custody, or visitation with respect to a child. Child custody

 

determination includes a permanent, temporary, initial, or

 

modification order.

 

     (d) "Child-custody proceeding" means a proceeding in which

 

legal custody, physical custody, or visitation with respect to a

 

child is at issue. The term includes a proceeding for divorce,

 

dissolution of marriage, separation, neglect, abuse, dependency,

 

guardianship, paternity, termination of parental rights, or

 

protection from domestic violence.

 

     (e) "Court" means an entity authorized under the law of a

 

state to establish, enforce, or modify a child-custody

 

determination.

 

     (f) "Petition" includes a motion or its equivalent.

 

     (g) "Record" means information that is inscribed on a tangible

 

medium or that is stored in an electronic or other medium and is

 

retrievable in perceivable form.

 

     (h) "State" means a state of the United States, the District

 

of Columbia, Puerto Rico, the United States Virgin Islands, or any

 

territory or insular possession subject to the jurisdiction of the

 

United States. State includes a federally recognized Indian tribe

 

or nation.

 

     (i) "Travel document" means records relating to a travel

 

itinerary, including travel tickets, passes, reservations for

 

transportation, or accommodations. Travel document does not include

 

a passport or visa.


 

     (j) "Visitation" includes parenting time as that term is used

 

in the support and parenting time enforcement act, 1982 PA 295, MCL

 

552.601 to 552.650.

 

     (k) "Wrongful removal" means the taking of a child that

 

breaches rights of custody or visitation given or recognized under

 

the law of this state.

 

     (l) "Wrongful retention" means the keeping or concealing of a

 

child that breaches rights of custody or visitation given or

 

recognized under the law of this state.

 

     Sec. 3. Sections 110 to 112 of the uniform child-custody

 

jurisdiction and enforcement act, 2001 PA 195, MCL 722.1110 to

 

722.1112, apply to cooperation and communications among courts in

 

proceedings under this act.

 

     Sec. 4. (1) A court on its own motion may order abduction

 

prevention measures in a child-custody proceeding if the court

 

finds that the evidence establishes a credible risk of abduction of

 

the child.

 

     (2) A party to a child-custody determination or another

 

individual or entity having a right under the law of this state or

 

any other state to seek a child-custody determination for the child

 

may file a petition seeking abduction prevention measures to

 

protect the child under this act.

 

     (3) A prosecutor or the attorney general may seek a warrant to

 

take physical custody of a child under section 9 or other

 

appropriate prevention measures.

 

     Sec. 5. (1) A petition under this act may be filed only in a

 

court that has jurisdiction to make a child-custody determination


 

with respect to the child at issue under the uniform child-custody

 

jurisdiction and enforcement act, 2001 PA 195, MCL 722.1101 to

 

722.1406.

 

     (2) A court of this state has temporary emergency jurisdiction

 

under section 204 of the uniform child-custody jurisdiction and

 

enforcement act, 2001 PA 195, MCL 722.1204, if the court finds a

 

credible risk of abduction.

 

     Sec. 6. A petition under this act shall be verified and

 

include a copy of any existing child-custody determination, if

 

available. The petition shall specify the risk factors for

 

abduction, including the relevant factors described in section 7.

 

Subject to section 209(5) of the uniform child-custody jurisdiction

 

and enforcement act, 2001 PA 195, MCL 722.1209, if reasonably

 

ascertainable, the petition must contain all of the following:

 

     (a) The name, date of birth, and gender of the child.

 

     (b) The customary address and current physical location of the

 

child.

 

     (c) The identity, customary address, and current physical

 

location of the respondent.

 

     (d) A statement of whether a prior action to prevent abduction

 

or domestic violence has been filed by a party or other individual

 

or entity having custody of the child, and the date, location, and

 

disposition of the action.

 

     (e) A statement of whether a party to the proceeding has been

 

arrested for a crime related to domestic violence, stalking, or

 

child abuse or neglect, and the date, location, and disposition of

 

the case.


 

     (f) Any other information required to be submitted to the

 

court for a child-custody determination under section 209 of the

 

uniform child-custody jurisdiction and enforcement act, 2001 PA

 

195, MCL 722.1209.

 

     Sec. 7. (1) In determining whether there is a credible risk of

 

abduction of a child, the court shall consider any evidence that

 

the petitioner or respondent has done any of the following or that

 

any of the following apply to the petitioner or respondent:

 

     (a) Previously abducted or attempted to abduct the child.

 

     (b) Threatened to abduct the child.

 

     (c) Recently engaged in activities that may indicate a planned

 

abduction, including any of the following:

 

     (i) Abandoning employment.

 

     (ii) Selling a primary residence.

 

     (iii) Terminating a lease.

 

     (iv) Closing bank or other financial management accounts,

 

liquidating assets, hiding or destroying financial documents, or

 

conducting any unusual financial activities.

 

     (v) Applying for a passport or visa or obtaining travel

 

documents for the respondent, a family member, or the child.

 

     (vi) Seeking to obtain the child's birth certificate or school

 

or medical records.

 

     (d) Engaged in domestic violence, stalking, or child abuse or

 

neglect.

 

     (e) Refused to follow a child-custody determination.

 

     (f) Lacks strong familial, financial, emotional, or cultural

 

ties to this state or the United States.


 

     (g) Has strong familial, financial, emotional, or cultural

 

ties to another state or country.

 

     (h) Is likely to take the child to a country to which any of

 

the following apply:

 

     (i) The country is not a party to the Hague convention on the

 

civil aspects of international child abduction and does not provide

 

for the extradition of an abducting parent or for the return of an

 

abducted child.

 

     (ii) The country is a party to the Hague convention on the

 

civil aspects of international child abduction but 1 or more of the

 

following apply:

 

     (A) The Hague convention on the civil aspects of international

 

child abduction is not in force between the United States and the

 

country.

 

     (B) The country is noncompliant according to the most recent

 

compliance report issued by the United States department of state.

 

     (C) The country lacks legal mechanisms for immediately and

 

effectively enforcing a return order under the Hague convention on

 

the civil aspects of international child abduction.

 

     (iii) The country poses a risk that the child's physical or

 

emotional health or safety would be endangered in the country

 

because of specific circumstances relating to the child or because

 

of human rights violations committed against children.

 

     (iv) The country has laws or practices that would do 1 or more

 

of the following:

 

     (A) Enable the respondent, without due cause, to prevent the

 

petitioner from contacting the child.


 

     (B) Restrict the petitioner from freely traveling to or

 

exiting from the country because of the petitioner's gender,

 

nationality, marital status, or religion.

 

     (C) Restrict the child's ability legally to leave the country

 

after the child reaches the age of majority because of the child's

 

gender, nationality, or religion.

 

     (v) The country is included by the United States department of

 

state on a current list of state sponsors of terrorism.

 

     (vi) The country does not have an official United States

 

diplomatic presence in the country.

 

     (vii) The country is engaged in active military action or war,

 

including a civil war, to which the child may be exposed.

 

     (i) Is undergoing a change in immigration or citizenship

 

status that would adversely affect the respondent's ability to

 

remain in the United States legally.

 

     (j) Has had an application for United States citizenship

 

denied.

 

     (k) Has forged or presented misleading or false evidence on

 

government forms or supporting documents to obtain or attempt to

 

obtain a passport, a visa, travel documents, a social security

 

card, a driver license, or other government-issued identification

 

card or has made a misrepresentation to the United States

 

government.

 

     (l) Has used multiple names to attempt to mislead or defraud.

 

     (m) Has engaged in any other conduct the court considers

 

relevant to the risk of abduction.

 

     (2) In the hearing on a petition under this act, the court


 

shall consider any evidence that the respondent believed in good

 

faith that the respondent's conduct was necessary to avoid imminent

 

harm to the child or respondent and any other evidence that may be

 

relevant to whether the respondent may be permitted to remove or

 

retain the child.

 

     Sec. 8. (1) If a petition is filed under this act, the court

 

may enter an order. If entered, the order shall include all of the

 

following:

 

     (a) The basis for the court's exercise of jurisdiction.

 

     (b) The manner in which notice and opportunity to be heard

 

were given to the persons entitled to notice of the proceeding.

 

     (c) A detailed description of each party's custody and

 

visitation rights and residential arrangements for the child.

 

     (d) A provision stating that a violation of the order may

 

subject the party in violation to civil and criminal penalties.

 

     (e) Identification of the child's country of habitual

 

residence at the time of the issuance of the order.

 

     (2) If, at a hearing on a petition under this act or on the

 

court's own motion, the court after reviewing the evidence finds a

 

credible risk of abduction of the child, the court shall enter an

 

abduction prevention order. The order shall include the provisions

 

required by subsection (1) and measures and conditions, including

 

those in subsections (3) to (5), that are reasonably calculated to

 

prevent abduction of the child, giving due consideration to the

 

custody and visitation rights of the parties. The court shall

 

consider the age of the child, the potential harm to the child from

 

an abduction, the legal and practical difficulties of returning the


 

child to the jurisdiction if abducted, and the reasons for the

 

potential abduction, including evidence of domestic violence,

 

stalking, or child abuse or neglect.

 

     (3) An abduction prevention order may include 1 or more of the

 

following:

 

     (a) An imposition of travel restrictions that require that a

 

party traveling with the child outside a designated geographical

 

area provide the other party with all of the following:

 

     (i) The travel itinerary of the child.

 

     (ii) A list of physical addresses and telephone numbers at

 

which the child can be reached at specified times.

 

     (iii) Copies of all travel documents.

 

     (b) A prohibition of the respondent directly or indirectly

 

doing any of the following:

 

     (i) Removing the child from this state, the United States, or

 

another geographic area without permission of the court or the

 

petitioner's written consent.

 

     (ii) Removing or retaining the child in violation of a child-

 

custody determination.

 

     (iii) Removing the child from school or a child care or similar

 

facility.

 

     (iv) Approaching the child at any location other than a site

 

designated for supervised visitation.

 

     (c) A requirement that a party register the order in another

 

state as a prerequisite to allowing the child to travel to that

 

state.

 

     (d) With regard to the child's passport, any of the following:


 

     (i) A direction that the petitioner place the child's name in

 

the United States department of state's child passport issuance

 

alert program.

 

     (ii) A requirement that the respondent surrender to the court

 

or the petitioner's attorney any United States or foreign passport

 

issued in the child's name, including a passport issued in the name

 

of both the parent and the child.

 

     (iii) A prohibition on the respondent applying on behalf of the

 

child for a new or replacement passport or visa.

 

     (e) As a prerequisite to exercising custody or visitation, a

 

requirement that the respondent provide 1 or more of the following:

 

     (i) To the United States department of state office of

 

children's issues and the relevant foreign consulate or embassy, an

 

authenticated copy of the order detailing passport and travel

 

restrictions for the child.

 

     (ii) To the court, 1 or both of the following:

 

     (A) Proof that the respondent has provided the information in

 

subparagraph (i).

 

     (B) An acknowledgment in a record from the relevant foreign

 

consulate or embassy that no passport application has been made, or

 

passport issued, on behalf of the child.

 

     (iii) To the petitioner, proof of registration with the United

 

States embassy or other United States diplomatic presence in the

 

destination country and with the central authority for the Hague

 

convention on the civil aspects of international child abduction,

 

if that convention is in effect between the United States and the

 

destination country, unless 1 of the parties objects.


 

     (iv) A written waiver under 5 USC 552a, popularly known as the

 

privacy act, with respect to any document, application, or other

 

information pertaining to the child authorizing its disclosure to

 

the court and the petitioner.

 

     (f) On the petitioner's request, a requirement that the

 

respondent obtain an order from the relevant foreign country

 

containing terms identical to the child-custody determination

 

issued in the United States.

 

     (4) In an abduction prevention order, the court may impose

 

conditions on the exercise of custody or visitation that do 1 or

 

more of the following:

 

     (a) Limit visitation or require that visitation with the child

 

by the respondent be supervised until the court finds that

 

supervision is no longer necessary and order the respondent to pay

 

the costs of supervision.

 

     (b) Require the respondent to post a bond or provide other

 

security in an amount sufficient to serve as a financial deterrent

 

to abduction, the proceeds of which may be used to pay for the

 

reasonable expenses of recovery of the child, including reasonable

 

attorney fees and costs if there is an abduction.

 

     (c) Require the respondent to obtain education on the

 

potentially harmful effects to the child from abduction.

 

     (5) To prevent imminent abduction of a child, a court may do 1

 

or more of the following:

 

     (a) Issue a warrant to take physical custody of the child

 

under section 9 or other law of this state.

 

     (b) Direct the use of law enforcement to take any action


 

reasonably necessary to locate the child, obtain return of the

 

child, or enforce a custody determination under this act or other

 

law of this state.

 

     (c) Grant any other relief allowed under the law of this

 

state.

 

     (6) The remedies provided in this act are cumulative and do

 

not affect the availability of other remedies to prevent abduction.

 

     Sec. 9. (1) If a petition under this act alleges and the court

 

finds that there is a credible risk that the child is imminently

 

likely to be wrongfully removed, the court may issue an ex parte

 

warrant to take physical custody of the child.

 

     (2) The respondent to a petition under subsection (1) shall be

 

afforded an opportunity to be heard at the earliest possible time

 

after the ex parte warrant is executed, but not later than the next

 

judicial day unless a hearing on that date is impossible. If a

 

hearing on the next judicial day is impossible, the court shall

 

hold the hearing on the first judicial day possible.

 

     (3) An ex parte warrant under subsection (1) to take physical

 

custody of a child shall do all of the following:

 

     (a) Recite the facts on which a determination of a credible

 

risk of imminent wrongful removal of the child is based.

 

     (b) Direct law enforcement officers to take physical custody

 

of the child immediately.

 

     (c) State the date and time for the hearing on the petition.

 

     (d) Provide for the safe interim placement of the child

 

pending further order of the court.

 

     (4) If feasible, before issuing a warrant under this section


 

and before determining the placement of the child after the warrant

 

is executed, the court may order a search of the relevant databases

 

of the national crime information center system and similar state

 

databases to determine if either the petitioner or respondent has a

 

history of domestic violence, stalking, or child abuse or neglect.

 

     (5) A petition and warrant under this section shall be served

 

on the respondent when or immediately after the child is taken into

 

physical custody.

 

     (6) A warrant to take physical custody of a child, issued by

 

this state or another state, is enforceable throughout this state.

 

If the court finds that a less intrusive remedy will not be

 

effective, it may authorize law enforcement officers to enter

 

private property to take physical custody of the child. If required

 

by exigent circumstances, the court may authorize law enforcement

 

officers to make a forcible entry at any hour.

 

     (7) If the court finds, after a hearing, that a petitioner

 

sought an ex parte warrant under subsection (1) for the purpose of

 

harassment or in bad faith, the court may award the respondent

 

reasonable attorney fees, costs, and expenses.

 

     (8) This act does not affect the availability of relief

 

allowed under other law of this state.

 

     Sec. 10. An abduction prevention order remains in effect until

 

the earliest of the following:

 

     (a) The time stated in the order.

 

     (b) The emancipation of the child.

 

     (c) The child's attaining 18 years of age.

 

     (d) The time the order is modified, revoked, vacated, or


 

superseded by a court with jurisdiction under sections 201 to 203

 

of the uniform child-custody jurisdiction and enforcement act, 2001

 

PA 195, MCL 722.1201 to 722.1203, or other applicable law of this

 

state.

 

     Sec. 11. In applying and construing this uniform act, a court

 

shall consider the need to promote uniformity of the law with

 

respect to its subject matter among states that enact it.

 

     Sec. 12. This act modifies, limits, and supersedes the federal

 

electronic signatures in global and national commerce act, 15 USC

 

7001 to 7031, but does not modify, limit, or supersede 15 USC

 

7001(c) or authorize electronic delivery of any of the notices

 

described in 15 USC 7003(b).