Uniform Child Abduction Prevention Act

The state that best documented why the Uniform Child Abduction Prevention Act is a bad law is New Jersey. The New Jersey law commission reviewed this law and recommended that it not be presented to their legislature. Other than their huge cop-out claiming that their family courts already had all of this authority, the reasons that they present in their report on why the law is bad remain valid.

Here is their work:

New Jersey review of Uniform Child Abduction Prevention Act.

The first document dated May 5, 2008. It is from the New Jersey Law Revision Commission Staff to the Commission for their May 15, 2008 meeting.

At this stage, the New Jersey staff were recommending passage of the law:

Although based on what we have thus far learned we believe the UCAPA should be recommended for adoption with minor modifications, we are awaiting feedback from the Family Law Executive Committee of the New Jersey Bar Association, also now considering whether to recommend this uniform law for adoption.

On page 4 of this report, they address the issue raised above and deem it handled sufficiently.

One area identified by commentators as a potential area for abuse is a provision permitting a court to issue an ex parte warrant to take physical custody of the child if that court finds a credible risk that the child is imminently likely to be wrongfully removed. The UCAPA, however, provides that the respondent on a petition must be afforded the opportunity to be heard at the earliest possible time after the issuance of the ex parte warrant, but not later than the next judicial day or the first judicial day next possible. This should address any concern for abuse of the ex parte mechanism but the potential for harassment is ever present and the concern is a legitimate and serious one.

On page 5, the staff says that the family law practitioners are satisfied with the law.

Fortunately, we have been able to obtain very constructive feedback from family law practitioners with suggested modifications to the UCAPA. These minor modifications reflect the nuances of New Jersey practice. We anticipate feedback from the Family Law Executive Committee of the Bar Association within days and will report to the Commission at its May meeting regarding any additional feedback.

And they summarize why it should be passed on page 5:

CONCLUSION
The UCAPA appears to supplement and improve existing legislation and treaties. New Jersey has already adopted the UCCJEA (after this Commission’s recommendation) and adoption of the UCAPA should enhance our State’s ability to prevent child abduction. In 2007, the American Bar Association approved the UCAPA as “appropriate” for adoption in all states. However, lawyers in the field have made constructive suggestions that make sense and should also be incorporated in a New Jersey version of the uniform law. We also anticipate critical feedback from the Family Law Committee of the New Jersey State Bar Association. We therefore propose the adoption of the UCAPA with minor modifications as set forth below pending feedback from the State Bar. (For purposes of comparison, we set out the uniform law first and the modified version suggested for adoption in New Jersey thereafter.)

The May 15, 1008 meeting of the New Jersey Law Commission is the first meeting to discuss the UCAPA act.

Uniform Child Abduction Prevention Act
Marna Brown explained that she had just learned that the Chairperson-Elect of the Family Law Committee of the State Bar Association had decided to form a subcommittee to examine this legislation in more detail. She indicated that the sub-committee has not yet been formed. The Commission decided to wait until next month to see if the sub-committee has been formed and if there is someone that the Commission can contact regarding this project.

Minutes for July 17 2008 of the New Jersey Law Commission. This is the second meeting to address the UCAPA act.

Uniform Child Abduction Prevention Act
Ms. Brown advised the Commission that she has heard nothing from the Family Law Executive Committee of the New Jersey State Bar Association about whether a subcommittee to address this uniform law had been formed as earlier indicated. In the absence of any information in that regard, Chairman Gagliardi advised that Staff should proceed with its analysis of the uniform law. Mr. Cannel advised that he was having a telephone conference with the New Jersey delegation to NCCUSL on the day after the meeting and would advise them of the status of this and other uniform law projects.

Some time after this meeting, I became aware of the commissions review of the Uniform Child Abduction Prevention Act. I sent them an email documenting our concerns about this act and documenting to them what happened in Louisiana when our state reviewed this law.

The next public document available is analysis of this law by the The New Jersey Law Commission staff. They prepared this document on November 11, 2008 for the next meeting of the law commission to review this act on November 20, 2008 meeting.

On page 4, they respond to my email regarding our concerns with UCAPA.

Concerns Regarding Adoption of the UCAPA
Criticism of the UCAPA was expressed during the legislative hearings conducted in Louisiana after objection to its adoption was raised by a Louisiana organization of divorced fathers called “LaDads”. As a result, the Louisiana version of the UCAPA was modified in a few, significant respects. Some of the concerns raised in those legislative hearings as well as other issues raised by careful review of the language of the Uniform Law itself are worthy of consideration and therefore discussed below:

So lets see what issues resonated with them that they felt compelled to give an answer to:

Concern 1

1. Whether the UCAPA Should Address Only International Abductions (as was its original intent)
One concern is that the Uniform Law, initially drafted to prevent the huge problem of international child abductions to those countries either not signatories of the Hague Treaty or non-complying signatories, should not have been expanded to include domestic abductions. In 2007, relying upon legislative hearing testimony that sufficient laws existed to address intrastate abductions and that certain risk factors for abduction made sense only in an international context, Louisiana adopted a version of the UCAPA that applies exclusively to international adoptions. Other states have adopted similar laws to apply solely to international abductions. Arkansas, for example, as already noted, enacted its own International Child Abduction Prevention Act in 2005. Texas and Oregon, as earlier mentioned, also enacted provisions applying solely to international abductions.

New Jersey family law practitioners have not expressed the view that the Uniform Law should apply solely to international abductions. To the contrary, the view seems to be that application to both international and domestic abductions will bridge the gap that exists between current federal and state laws.

Concerns 2

2. Factors to Determine Risk of Abduction.
Section 7 of the Uniform Law directs that the court shall consider evidence of a long list of factors in determining whether a credible risk of abduction of a child exists.

Some of these factors, however, do not in and of themselves display evidence of such a risk. For example, as was urged in Louisiana, obtaining a child’s school records or birth certificate could be a simple exercise of parental responsibility rather than evidence of an abduction about to take place. As a result, Louisiana’s version of the UCAPA requires that the evidence of the risks factors for abduction be considered in their totality rather than singly.

Others argue that because certain risk factors are vague and ambiguous, the entire group of factors to be considered should perhaps be regrouped and prioritized into those factors that require immediate action and those that are merely contributing but not dispositive of abduction. These concerns are addressed in the proposed modifications set forth beginning on page 6 of this memo.

Concern 3

3. Provisions and Measures to Prevent Abduction.
Section 8 includes measures to prevent abduction that some view as taking away fundamental liberties. An example is the possible restriction on passports and other travel controls. These same critics also believe that the Uniform Law, as drafted, eliminates the presumption of innocence that even alleged criminal offenders now enjoy.

As Louisiana Representative Shirley Bowler put it in her testimony on the issue, the bill “departs from what I think is a real important concept in America and that is you are innocent until proven guilty, and this actually causes you to be penalized by a court for something [the court] thinks you might do.”

She also referred to Louisiana’s kidnapping law as a real deterrent to the kinds of abductions that the Uniform Law sought to prevent.

Staff believes the very nature of the risk of abduction and threat of harm to a child will at times require such restrictive measures. The UCAPA imposes sufficient requirements upon courts when drafting protective orders to address such concerns.

Concern 4

4. Warrant to Take Physical Custody of Child.
Section 9 permits a court to issue an ex parte warrant to take physical custody of the child if that court finds a credible risk that the child is imminently likely to be wrongfully removed. Some characterize the ex parte mechanism as a potential weapon for abuse of one spouse by the other and the potential problems are significant.

Section 9 provides that the respondent, upon petition, must be afforded the opportunity to be heard within the next judicial day “unless a hearing on that date is impossible”, in which event “the court shall hold the hearing on the first judicial day possible”. This time frame may not be immediate enough. In addition, the opportunity for the hearing exists only if the respondent petitions for a hearing, and the warrant may be issued even without a hearing. Proposed modification to this section attempts to address these concerns.

Equally troubling, however, is language in Section 9 requiring that the warrant specifically direct “law enforcement officers to take physical custody of the child immediately” and “provide for the safe interim placement of the child pending further order of the court”. Although the obviously well-meaning intention of this directive mirrors language in the UCCJEA (see §2A:34-85), thrusting a very young child whose parent is the abductor into the hands of even the most concerned law enforcement officer seems more traumatic than protective. Perhaps the better alternative, in keeping with the “best interests of the child” standard, would be the immediate placement of the child with the other parent, another adult relative or a guardian appointed for this purpose.

Finally their conclusion – page 6. The New Jersey Law Commission staff are still not willing to give up on this bill, but at least they are starting to recognize its problems and suggest fixes.

Conclusion
Staff is inclined to recommend the enactment of the UCAPA, but with modifications, especially to sections 7, 8 and 9 of the Official Text, as set forth below. Only with these modifications will the UCAPA fairly supplement and improve existing legislation and treaties and effectively enhance our State’s ability to prevent child abduction.

Staff also believes that more feedback is necessary from family law attorneys and others involved with the protection of children before any Commission recommendation is made to the Legislature.

From the November 12 2008 Minutes. In response to their staff identifying all of these issues with the Act, the New Jersey Law commission punts.

Uniform Child Abduction Act
Commissioner Pressler said that there was no power provided by the Uniform Act that Chancery judges do not now have and exercise. She moved to conclude the project without recommending its enactment. Professor Garland seconded the motion. In order to adhere to Commission procedure in these matters, Chairman Gagliardi asked that the standard final report be prepared for the December meeting stating that the Commission was recommending no action on this uniform law. Commissioner Burstein asked that NCCUSL be contacted to determine its reaction before the next meeting.

From the December 18, 2008 meeting minutes. At their final meeting on this Act, the New Jersey Law Commission approves the final report of the New Jersey Law Commission staff.

Uniform Child Abduction Prevention Act
Commissioner Gagliardi said that this project had been discussed at the November meeting and, at that meeting, the Commission directed Staff to prepare a final report recommending that the Uniform Law not be adopted. That draft final report was reviewed by the Commission. Professor Bell moved to release the final report, which was seconded by Professor Garland. The report regarding the Uniform Child Abduction Prevention Act was released as a Final Report.

Here is the New Jersey Law Commissions Final Report

STATE OF NEW JERSEY

N J L R C

NEW JERSEY LAW REVISION COMMISSION

FINAL REPORT
Relating to
UNIFORM CHILD ABDUCTION PREVENTION ACT

December 2008

John M. Cannel, Esq., Executive Director
NEW JERSEY LAW REVISION COMMISSION
153 Halsey Street, 7th Fl., Box 47016
Newark, New Jersey 07101
973-648-4575
(Fax) 973-648-3123
Email: njlrc@njlrc.org
Web site: http://www.njlrc.org

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Introduction
In July of 2006, the National Conference of Commissioners on Uniform State Laws (NCCUSL) approved and recommended for enactment, the Uniform Child Abduction Prevention Act (UCAPA). Since then, the UCAPA has been enacted in only seven states: Nebraska, Utah, Kansas, South Dakota, Nevada, Colorado, and Louisiana, although bills incorporating some or all of the UCAPA are pending in at least ten more jurisdictions.1

The UCAPA’s stated purpose is to provide a mechanism for a court to impose child abduction prevention measures at any time, thereby deterring and preventing domestic and international abductions. Child abduction is defined as “wrongful removal” or “wrongful retention” of an unemancipated minor. The UCAPA was created to complement and enhance existing law, such as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the Parental Kidnapping Prevention Act (PKPA), and, with regard to international abduction, the Hague Convention on the Civil Aspects of International Child Abduction. As noted in the preface to the Original Text, the UCAPA is “premised on the general principle that preventing abduction is in a child’s best interests.”

Summary of Provisions of the UCAPA
The “Definitions” section of the UCAPA tracks as much as possible that of the UCCJEA. The UCAPA permits a court, on its own motion, to order abduction prevention measures if the court finds the evidence establishes a credible risk of abduction of the child. It also permits a party or anyone with the rights to seek a child-custody determination, to file a verified petition, in the court having jurisdiction to make a child custodial determination with respect to that child, for an order protecting the child from abduction. Provision exists for temporary emergency jurisdiction, in accordance with the UCCJEA, if the court finds a credible risk of abduction and for the prosecutor, or public authority with the power under the relevant state law, to seek a warrant to take physical custody of a child or other appropriate prevention measures.

In determining whether there is a credible risk of abduction of a child, the court may consider [b]any one or more[/b] risk factors, including whether the petitioner or respondent has threatened to abduct the child, engaged in activities that may indicate a planned abduction (such as selling the primary residence, terminating a lease, abandoning employment), or engaged in domestic violence, stalking or child abuse. Petitioners may offer evidence of conduct not expressly mentioned in the UCAPA and courts are required to consider evidence regarding [i]both[/i] the petitioner and the respondent when making

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1 Louisiana’s version of the Uniform Law, though modeled on the UCAPA, is also restricted to international abductions. A few states such as Arkansas, California, Oregon and Texas address child abduction prevention in legislation pre-dating the completion of the UCAPA, although Texas is now considering adoption of the UCAPA. Other federal legislation also addresses other aspects of the problems encountered with missing and abducted children.

Uniform Child Abduction Prevention Act FR12/22/08

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determinations of the risks of abduction. However, the UCAPA does not discuss the weight the evidence is to be given.

The remainder of the UCAPA addresses the mechanics of the procedures to be implemented (duration of court orders, etc.), and the actual provisions required to be included in the court order. The measures and conditions a court may impose to prevent child abduction are within the discretion of the court so long as due consideration is given to custody and visitation rights of the parties, and the court considers the age of the child; potential harm to the child from the abduction; legal and practical difficulties of returning the child to the jurisdiction; and reasons for the potential abduction, including evidence of domestic violence, stalking, child abuse or neglect.

Concerns Regarding Adoption of the UCAPA

Criticism of the UCAPA has been expressed during the legislative hearings in states that considered its enactment. As a result, the versions of UCAPA enacted have been modified in significant respects. Some of the concerns raised in those legislative hearings as well as other concerns raised by careful review of the proposed Uniform Law are discussed briefly below.
One concern is that the initial draft, which sought to prevent the huge problem of international child abductions to those countries either not signatories of the Hague Treaty or non-complying signatories, should not have been expanded to include domestic abductions. Louisiana adopted a version of the UCAPA that applies exclusively to international adoptions. Other states have adopted similar laws.

Another concern is that some of the factors that the court may consider to determine whether a credible risk of abduction of a child exists, do not in and of themselves display evidence of such a risk. For example, obtaining a child’s school records or birth certificate could be a simple exercise of parental responsibility rather than evidence of an abduction about to take place. Others argue that because certain risk factors are vague or ambiguous, all risk factors should be regrouped and prioritized into those factors that require immediate action and those that are merely contributing but not dispositive of abduction.

Section 8 includes measures to prevent abduction that some view as taking away fundamental liberties (such as the right to travel) and eliminating the presumption of innocence that even alleged criminal offenders now enjoy. Section 9 permits a court to issue an ex parte warrant to take physical custody of the child if that court finds a credible risk that the child is imminently likely to be wrongfully removed. Some characterize the ex parte mechanism as a potential weapon for abuse of one spouse by the other. The opportunity for a hearing exists only if the respondent petitions for a hearing, the time frame for such a hearing (within the next judicial day unless a hearing on that date is impossible, in which event the court shall hold the hearing on the first judicial day possible) may be insufficient, and the warrant may be issued even without a hearing. Equally troubling, however, is language in Section 9 requiring that the warrant

Uniform Child Abduction Prevention Act FR12/22/08

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specifically direct “law enforcement officers to take physical custody of the child immediately” and “provide for the safe interim placement of the child pending further order of the court”. Although this directive mirrors language in the UCCJEA (§2A:34-85), the trauma of thrusting a very young child whose parent is the abductor into the hands of even the most concerned law enforcement officer may outweigh the benefit contemplated by the proposed provision.

Commission Recommendation

The Commission has considered the UCAPA but does not recommend its adoption. The UCAPA does not provide authority beyond the current powers of New Jersey judges in custody matters. The Commission did not address deficiencies in the Uniform Law or possible modifications to sections 7, 8 and 9 of the Official Text to correct them, concluding that the UCAPA is not necessary in light of the broad powers of the New Jersey chancery courts.

The New Jersey Constitution provides for the establishment and jurisdiction of the New Jersey Superior Court (see Article 6, §3, ¶¶1 and 2) and for division of the Superior Court into three distinct sections, including a Chancery Division, “which shall include a family part.” (see Article 6, §3, ¶3.) N.J.S. 2A:34-23 permits a court:

“to make such order as to the alimony or maintenance of the parties, and also as to the care, custody, education, and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall render fit, reasonable and just . . ..”

Invoking these constitutional and statutory provisions, New Jersey courts have adopted the “best interests” standard in determining the needs and welfare of children in the State. See Mayer v. Mayer, 150 N.J. Super. 556, 562 (Ch. Div. 1977) (court has broad discretion in dealing with custody of the child while being aware that the welfare and happiness of the child is the controlling consideration.)

New Jersey courts exercise broad powers when the disputed issues concern children. See Paterno v. Paterno, 254 N.J. Super. 190, 193 (Ch. Div. 1991) (“Nowhere are the equitable powers of the Chancery Division more crucial than in the realm of child custody and visitation in post-matrimonial actions.”) See also Vannucchi v. Vannucchi, 113 N.J. Super. 40 (App. Div. 1971), certification denied, 58 N.J. 163 (1971) (chancery division has authority under parens patriae jurisdiction to regulate custody which authority, firmly established in our jurisprudence, has its origin in the protection that is due to the incapacitated or helpless); and Brown v. Parsons, 136 N.J. Eq. 493 (E. & A. 1945) (chancery court’s authority is so broad that where the welfare of the child so requires, permanent custody may be fixed even disregarding the legal rights of parents.)

Uniform Child Abduction Prevention Act FR12/22/08

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