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Text of New York State Bill S04138
S T A T E O F N E W Y O R K
________________________________________________________________________
4138--A
Cal. No. 645
1999-2000 Regular Sessions
I N S E N A T E
March 26, 1999
___________
Introduced by Sens. SALAND, LACK -- (at request of the Judiciary) --
read twice and ordered printed, and when printed to be committed to
the Committee on Children and Families -- reported favorably from said
committee, ordered to first and second report, ordered to a third
reading, amended and ordered reprinted, retaining its place in the
order of third reading
AN ACT to amend the domestic relations law, in relation to the uniform
child custody jurisdiction and enforcement act and to repeal certain
provisions of such law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Article 5-A of the domestic relations law is REPEALED and a
2 new article 5-A is added to read as follows:
3 ARTICLE 5-A
4 UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT
5 TITLE 1. GENERAL PROVISIONS.
6 2. JURISDICTION.
7 3. ENFORCEMENT.
8 4. MISCELLANEOUS PROVISIONS.
9 TITLE 1
10 GENERAL PROVISIONS
11 SECTION 75. SHORT TITLE.
12 75-A. DEFINITIONS.
13 75-B. PROCEEDINGS GOVERNED BY OTHER LAWS.
14 75-C. APPLICATION TO INDIAN TRIBES.
15 75-D. INTERNATIONAL APPLICATION OF ARTICLE.
16 75-E. EFFECT OF CHILD CUSTODY DETERMINATION.
17 75-F. PRIORITY.
18 75-G. NOTICE TO PERSONS OUTSIDE STATE.
19 75-H. APPEARANCE AND LIMITED IMMUNITY.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
{ } is old law to be omitted.
LBD09099-04-9
S. 4138--A 2
1 75-I. COMMUNICATION BETWEEN COURTS.
2 75-J. TAKING TESTIMONY IN ANOTHER STATE.
3 75-K. COOPERATION BETWEEN COURTS; PRESERVATION OF RECORDS.
4 S 75. SHORT TITLE. THIS ARTICLE MAY BE CITED AS THE "UNIFORM CHILD
5 CUSTODY JURISDICTION AND ENFORCEMENT ACT".
6 S 75-A. DEFINITIONS. AS USED IN THIS ARTICLE:
7 1. "ABANDONED" MEANS LEFT WITHOUT PROVISION FOR REASONABLE AND NECES-
8 SARY CARE OR SUPERVISION.
9 2. "CHILD" MEANS AN INDIVIDUAL WHO HAS NOT ATTAINED EIGHTEEN YEARS OF
10 AGE.
11 3. "CHILD CUSTODY DETERMINATION" MEANS A JUDGMENT, DECREE, OR OTHER
12 ORDER OF A COURT PROVIDING FOR THE LEGAL CUSTODY, PHYSICAL CUSTODY, OR
13 VISITATION WITH RESPECT TO A CHILD. THE TERM INCLUDES A PERMANENT,
14 TEMPORARY, INITIAL, AND MODIFICATION ORDER. THE TERM DOES NOT INCLUDE AN
15 ORDER RELATING TO CHILD SUPPORT OR OTHER MONETARY OBLIGATION OF AN INDI-
16 VIDUAL.
17 4. "CHILD CUSTODY PROCEEDING" MEANS A PROCEEDING IN WHICH LEGAL CUSTO-
18 DY, PHYSICAL CUSTODY, OR VISITATION WITH RESPECT TO A CHILD IS AN ISSUE.
19 THE TERM INCLUDES A PROCEEDING FOR DIVORCE, SEPARATION, NEGLECT, ABUSE,
20 DEPENDENCY, GUARDIANSHIP, PATERNITY, TERMINATION OF PARENTAL RIGHTS, AND
21 PROTECTION FROM DOMESTIC VIOLENCE, IN WHICH THE ISSUE MAY APPEAR. THE
22 TERM DOES NOT INCLUDE A PROCEEDING INVOLVING JUVENILE DELINQUENCY,
23 CONTRACTUAL EMANCIPATION, OR ENFORCEMENT UNDER TITLE THREE OF THIS ARTI-
24 CLE.
25 5. "COMMENCEMENT" MEANS THE FILING OF THE FIRST PLEADING IN A PROCEED-
26 ING.
27 6. "COURT" MEANS AN ENTITY AUTHORIZED UNDER THE LAWS OF A STATE TO
28 ESTABLISH, ENFORCE, OR MODIFY A CHILD CUSTODY DETERMINATION.
29 7. "HOME STATE" MEANS THE STATE IN WHICH A CHILD LIVED WITH A PARENT
30 OR A PERSON ACTING AS A PARENT FOR AT LEAST SIX CONSECUTIVE MONTHS IMME-
31 DIATELY BEFORE THE COMMENCEMENT OF A CHILD CUSTODY PROCEEDING. IN THE
32 CASE OF A CHILD LESS THAN SIX MONTHS OF AGE, THE TERM MEANS THE STATE IN
33 WHICH THE CHILD LIVED FROM BIRTH WITH ANY OF THE PERSONS MENTIONED. A
34 PERIOD OF TEMPORARY ABSENCE OF ANY OF THE MENTIONED PERSONS IS PART OF
35 THE PERIOD.
36 8. "INITIAL DETERMINATION" MEANS THE FIRST CHILD CUSTODY DETERMINATION
37 CONCERNING A PARTICULAR CHILD.
38 9. "ISSUING COURT" MEANS THE COURT THAT MAKES A CHILD CUSTODY DETERMI-
39 NATION FOR WHICH ENFORCEMENT IS SOUGHT UNDER THIS ARTICLE.
40 10. "ISSUING STATE" MEANS THE STATE IN WHICH A CHILD CUSTODY DETERMI-
41 NATION IS MADE.
42 11. "MODIFICATION" MEANS A CHILD CUSTODY DETERMINATION THAT CHANGES,
43 REPLACES, SUPERSEDES, OR IS OTHERWISE MADE AFTER A PREVIOUS DETERMI-
44 NATION CONCERNING THE SAME CHILD, WHETHER OR NOT IT IS MADE BY THE COURT
45 THAT MADE THE PREVIOUS DETERMINATION.
46 12. "PERSON" MEANS AN INDIVIDUAL, CORPORATION, BUSINESS TRUST, ESTATE,
47 TRUST, PARTNERSHIP, LIMITED LIABILITY COMPANY, ASSOCIATION, JOINT
48 VENTURE, GOVERNMENT, GOVERNMENTAL SUBDIVISION, AGENCY OR INSTRUMENTALI-
49 TY, PUBLIC CORPORATION, OR ANY OTHER LEGAL OR COMMERCIAL ENTITY.
50 13. "PERSON ACTING AS A PARENT" MEANS A PERSON, OTHER THAN A PARENT,
51 WHO:
52 (A) HAS PHYSICAL CUSTODY OF THE CHILD OR HAS HAD PHYSICAL CUSTODY FOR
53 A PERIOD OF SIX CONSECUTIVE MONTHS, INCLUDING ANY TEMPORARY ABSENCE,
54 WITHIN ONE YEAR IMMEDIATELY BEFORE THE COMMENCEMENT OF A CHILD CUSTODY
55 PROCEEDING; AND
S. 4138--A 3
1 (B) HAS BEEN AWARDED LEGAL CUSTODY BY A COURT OR CLAIMS A RIGHT TO
2 LEGAL CUSTODY UNDER THE LAW OF THIS STATE.
3 14. "PHYSICAL CUSTODY" MEANS THE PHYSICAL CARE AND SUPERVISION OF A
4 CHILD.
5 15. "STATE" MEANS A STATE OF THE UNITED STATES, THE DISTRICT OF COLUM-
6 BIA, PUERTO RICO, THE UNITED STATES VIRGIN ISLANDS, OR ANY TERRITORY OR
7 INSULAR POSSESSION SUBJECT TO THE JURISDICTION OF THE UNITED STATES.
8 16. "TRIBE" MEANS AN INDIAN TRIBE OR BAND, OR ALASKAN NATIVE VILLAGE,
9 WHICH IS RECOGNIZED BY FEDERAL LAW OR FORMALLY ACKNOWLEDGED BY A STATE.
10 17. "WARRANT" MEANS AN ORDER ISSUED BY A COURT AUTHORIZING LAW
11 ENFORCEMENT OFFICERS TO TAKE PHYSICAL CUSTODY OF A CHILD.
12 S 75-B. PROCEEDINGS GOVERNED BY OTHER LAWS. THIS ARTICLE DOES NOT
13 GOVERN AN ADOPTION PROCEEDING OR A PROCEEDING PERTAINING TO THE AUTHORI-
14 ZATION OF EMERGENCY MEDICAL CARE FOR A CHILD.
15 S 75-C. APPLICATION TO INDIAN TRIBES. 1. A CHILD CUSTODY PROCEEDING
16 THAT PERTAINS TO AN INDIAN CHILD AS DEFINED IN THE INDIAN CHILD WELFARE
17 ACT, 25 U.S.C. S 1901 ET SEQ., IS NOT SUBJECT TO THIS ARTICLE TO THE
18 EXTENT THAT IT IS GOVERNED BY THE INDIAN CHILD WELFARE ACT.
19 2. A COURT OF THIS STATE SHALL TREAT A TRIBE AS IF IT WERE A STATE OF
20 THE UNITED STATES FOR THE PURPOSE OF APPLYING THIS TITLE AND TITLE TWO
21 OF THIS ARTICLE.
22 3. A CHILD CUSTODY DETERMINATION MADE BY A TRIBE UNDER FACTUAL CIRCUM-
23 STANCES IN SUBSTANTIAL CONFORMITY WITH THE JURISDICTIONAL STANDARDS OF
24 THIS ARTICLE MUST BE RECOGNIZED AND ENFORCED UNDER TITLE THREE OF THIS
25 ARTICLE.
26 S 75-D. INTERNATIONAL APPLICATION OF ARTICLE. 1. A COURT OF THIS STATE
27 SHALL TREAT A FOREIGN COUNTRY AS IF IT WERE A STATE OF THE UNITED STATES
28 FOR THE PURPOSE OF APPLYING THIS TITLE AND TITLE TWO OF THIS ARTICLE.
29 2. EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISION THREE OF THIS SECTION,
30 A CHILD CUSTODY DETERMINATION MADE IN A FOREIGN COUNTRY UNDER FACTUAL
31 CIRCUMSTANCES IN SUBSTANTIAL CONFORMITY WITH THE JURISDICTIONAL STAND-
32 ARDS OF THIS ARTICLE MUST BE RECOGNIZED AND ENFORCED UNDER TITLE THREE
33 OF THIS ARTICLE
34 3. A COURT OF THIS STATE NEED NOT APPLY THIS ARTICLE IF THE CHILD
35 CUSTODY LAW OF A FOREIGN COUNTRY VIOLATES FUNDAMENTAL PRINCIPLES OF
36 HUMAN RIGHTS.
37 S 75-E. EFFECT OF CHILD CUSTODY DETERMINATION. A CHILD CUSTODY DETER-
38 MINATION MADE BY A COURT OF THIS STATE THAT HAD JURISDICTION UNDER THIS
39 ARTICLE BINDS ALL PERSONS WHO HAVE BEEN SERVED IN ACCORDANCE WITH THE
40 LAWS OF THIS STATE OR NOTIFIED IN ACCORDANCE WITH SECTION SEVENTY-FIVE-G
41 OF THIS TITLE OR WHO HAVE SUBMITTED TO THE JURISDICTION OF THE COURT,
42 AND WHO HAVE BEEN GIVEN AN OPPORTUNITY TO BE HEARD. AS TO THOSE PERSONS,
43 THE DETERMINATION IS CONCLUSIVE AS TO ALL DECIDED ISSUES OF LAW AND FACT
44 EXCEPT TO THE EXTENT THE DETERMINATION IS MODIFIED.
45 S 75-F. PRIORITY. IF A QUESTION OF EXISTENCE OR EXERCISE OF JURISDIC-
46 TION UNDER THIS ARTICLE IS RAISED IN A CHILD CUSTODY PROCEEDING, THE
47 QUESTION, UPON REQUEST OF A PARTY, CHILD OR LAW GUARDIAN MUST BE GIVEN
48 PRIORITY ON THE CALENDAR AND HANDLED EXPEDITIOUSLY.
49 S 75-G. NOTICE TO PERSONS OUTSIDE STATE. 1. NOTICE REQUIRED FOR THE
50 EXERCISE OF JURISDICTION WHEN A PERSON IS OUTSIDE THIS STATE MAY BE
51 GIVEN IN A MANNER PRESCRIBED BY THE LAW OF THIS STATE FOR SERVICE OF
52 PROCESS OR BY THE LAW OF THE STATE IN WHICH THE SERVICE IS MADE. NOTICE
53 MUST BE GIVEN IN A MANNER REASONABLY CALCULATED TO GIVE ACTUAL NOTICE
54 BUT MAY BE BY PUBLICATION IF OTHER MEANS ARE NOT EFFECTIVE.
55 2. PROOF OF SERVICE MAY BE MADE IN THE MANNER PRESCRIBED BY THE LAWS
56 OF THIS STATE OR BY THE LAWS OF THE STATE IN WHICH THE SERVICE IS MADE.
S. 4138--A 4
1 3. NOTICE IS NOT REQUIRED FOR THE EXERCISE OF JURISDICTION WITH
2 RESPECT TO A PERSON WHO SUBMITS TO THE JURISDICTION OF THE COURT.
3 S 75-H. APPEARANCE AND LIMITED IMMUNITY. 1. A PARTY TO A CHILD CUSTODY
4 PROCEEDING, INCLUDING A MODIFICATION PROCEEDING, OR A PETITIONER OR
5 RESPONDENT IN A PROCEEDING TO ENFORCE OR REGISTER A CHILD CUSTODY DETER-
6 MINATION, IS NOT SUBJECT TO PERSONAL JURISDICTION IN THIS STATE FOR
7 ANOTHER PROCEEDING OR PURPOSE SOLELY BY REASON OF HAVING PARTICIPATED,
8 OR OF HAVING BEEN PHYSICALLY PRESENT FOR THE PURPOSE OF PARTICIPATING,
9 IN THE PROCEEDING.
10 2. A PERSON WHO IS SUBJECT TO PERSONAL JURISDICTION IN THIS STATE ON A
11 BASIS OTHER THAN PHYSICAL PRESENCE IS NOT IMMUNE FROM SERVICE OF PROCESS
12 IN THIS STATE. A PARTY PRESENT IN THIS STATE WHO IS SUBJECT TO THE
13 JURISDICTION OF ANOTHER STATE IS NOT IMMUNE FROM SERVICE OF PROCESS
14 ALLOWABLE UNDER THE LAWS OF THAT STATE.
15 3. THE IMMUNITY GRANTED BY SUBDIVISION ONE OF THIS SECTION DOES NOT
16 EXTEND TO CIVIL LITIGATION BASED ON ACTS UNRELATED TO THE PARTICIPATION
17 IN A PROCEEDING UNDER THIS ARTICLE COMMITTED BY AN INDIVIDUAL WHILE
18 PRESENT IN THIS STATE.
19 S 75-I. COMMUNICATION BETWEEN COURTS. 1. A COURT OF THIS STATE MAY
20 COMMUNICATE WITH A COURT IN ANOTHER STATE CONCERNING A PROCEEDING ARIS-
21 ING UNDER THIS ARTICLE.
22 2. THE COURT MAY ALLOW THE PARTIES TO PARTICIPATE IN THE COMMUNI-
23 CATION. IF THE PARTIES ARE NOT ABLE TO PARTICIPATE IN THE COMMUNICATION,
24 THEY MUST BE GIVEN THE OPPORTUNITY TO PRESENT FACTS AND LEGAL ARGUMENTS
25 BEFORE A DECISION ON JURISDICTION IS MADE.
26 3. COMMUNICATION BETWEEN COURTS ON SCHEDULES, CALENDARS, COURT
27 RECORDS, AND SIMILAR MATTERS MAY OCCUR WITHOUT INFORMING THE PARTIES. A
28 RECORD NEED NOT BE MADE OF THE COMMUNICATION.
29 4. EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISION THREE OF THIS SECTION,
30 A RECORD MUST BE MADE OF A COMMUNICATION UNDER THIS SECTION. THE PARTIES
31 MUST BE INFORMED PROMPTLY OF THE COMMUNICATION AND GRANTED ACCESS TO THE
32 RECORD.
33 5. FOR THE PURPOSES OF THIS SECTION, "RECORD" MEANS INFORMATION THAT
34 IS INSCRIBED ON A TANGIBLE MEDIUM OR THAT IS STORED IN AN ELECTRONIC OR
35 OTHER MEDIUM AND IS RETRIEVABLE IN PERCEIVABLE FORM.
36 S 75-J. TAKING TESTIMONY IN ANOTHER STATE. 1. IN ADDITION TO OTHER
37 PROCEDURES AVAILABLE TO A PARTY, A PARTY TO A CHILD CUSTODY PROCEEDING
38 MAY OFFER TESTIMONY OF WITNESSES WHO ARE LOCATED IN ANOTHER STATE,
39 INCLUDING TESTIMONY OF THE PARTIES AND THE CHILD, BY DEPOSITION OR OTHER
40 MEANS ALLOWABLE IN THIS STATE FOR TESTIMONY TAKEN IN ANOTHER STATE. THE
41 COURT ON ITS OWN MOTION MAY ORDER THAT THE TESTIMONY OF A PERSON BE
42 TAKEN IN ANOTHER STATE AND MAY PRESCRIBE THE MANNER IN WHICH AND THE
43 TERMS UPON WHICH THE TESTIMONY IS TAKEN.
44 2. A COURT OF THIS STATE MAY PERMIT AN INDIVIDUAL RESIDING IN ANOTHER
45 STATE TO BE DEPOSED OR TO TESTIFY BY TELEPHONE, AUDIOVISUAL MEANS, OR
46 OTHER ELECTRONIC MEANS BEFORE A DESIGNATED COURT OR AT ANOTHER LOCATION
47 IN THAT STATE. A COURT OF THIS STATE SHALL COOPERATE WITH COURTS OF
48 OTHER STATES IN DESIGNATING AN APPROPRIATE LOCATION FOR THE DEPOSITION
49 OR TESTIMONY.
50 3. DOCUMENTARY EVIDENCE TRANSMITTED FROM ANOTHER STATE TO A COURT OF
51 THIS STATE BY TECHNOLOGICAL MEANS THAT DO NOT PRODUCE AN ORIGINAL WRIT-
52 ING MAY NOT BE EXCLUDED FROM EVIDENCE ON AN OBJECTION BASED ON THE MEANS
53 OF TRANSMISSION.
54 S 75-K. COOPERATION BETWEEN COURTS; PRESERVATION OF RECORDS. 1. A
55 COURT OF THIS STATE MAY REQUEST THE APPROPRIATE COURT OF ANOTHER STATE
56 TO:
S. 4138--A 5
1 (A) HOLD AN EVIDENTIARY HEARING;
2 (B) ORDER A PERSON TO PRODUCE OR GIVE EVIDENCE PURSUANT TO PROCEDURES
3 OF THAT STATE;
4 (C) ORDER THAT AN EVALUATION BE MADE WITH RESPECT TO THE CUSTODY OF A
5 CHILD INVOLVED IN A PENDING PROCEEDING;
6 (D) FORWARD TO THE COURT OF THIS STATE A CERTIFIED COPY OF THE TRAN-
7 SCRIPT OF THE RECORD OF THE HEARING, THE EVIDENCE OTHERWISE PRESENTED,
8 AND ANY EVALUATION PREPARED IN COMPLIANCE WITH THE REQUEST; AND
9 (E) ORDER A PARTY TO A CHILD CUSTODY PROCEEDING OR ANY PERSON HAVING
10 PHYSICAL CUSTODY OF THE CHILD TO APPEAR IN THE PROCEEDING WITH OR WITH-
11 OUT THE CHILD.
12 2. UPON THE REQUEST OF A COURT OF ANOTHER STATE, A COURT OF THIS STATE
13 MAY HOLD A HEARING OR ENTER AN ORDER DESCRIBED IN SUBDIVISION ONE OF
14 THIS SECTION.
15 3. TRAVEL AND OTHER NECESSARY AND REASONABLE EXPENSES INCURRED UNDER
16 SUBDIVISIONS ONE AND TWO OF THIS SECTION MAY BE ASSESSED AGAINST THE
17 PARTIES ACCORDING TO THE LAW OF THIS STATE.
18 4. A COURT OF THIS STATE SHALL PRESERVE THE PLEADINGS, ORDERS,
19 DECREES, RECORDS OF HEARINGS, EVALUATIONS, AND OTHER PERTINENT RECORDS
20 WITH RESPECT TO A CHILD CUSTODY PROCEEDING AT LEAST UNTIL THE CHILD
21 ATTAINS EIGHTEEN YEARS OF AGE. UPON APPROPRIATE REQUEST BY A COURT OR
22 LAW ENFORCEMENT OFFICIAL OF ANOTHER STATE, THE COURT SHALL FORWARD A
23 CERTIFIED COPY OF THOSE RECORDS.
24 TITLE 2
25 JURISDICTION
26 SECTION 76. INITIAL CHILD CUSTODY JURISDICTION.
27 76-A. EXCLUSIVE, CONTINUING JURISDICTION.
28 76-B. JURISDICTION TO MODIFY DETERMINATION.
29 76-C. TEMPORARY EMERGENCY JURISDICTION.
30 76-D. NOTICE; OPPORTUNITY TO BE HEARD; JOINDER.
31 76-E. SIMULTANEOUS PROCEEDINGS.
32 76-F. INCONVENIENT FORUM.
33 76-G. JURISDICTION DECLINED BY REASON OF CONDUCT.
34 76-H. INFORMATION TO BE SUBMITTED TO COURT.
35 76-I. APPEARANCE OF PARTIES AND CHILD.
36 S 76. INITIAL CHILD CUSTODY JURISDICTION. 1. EXCEPT AS OTHERWISE
37 PROVIDED IN SECTION SEVENTY-SIX-C OF THIS TITLE, A COURT OF THIS STATE
38 HAS JURISDICTION TO MAKE AN INITIAL CHILD CUSTODY DETERMINATION ONLY IF:
39 (A) THIS STATE IS THE HOME STATE OF THE CHILD ON THE DATE OF THE
40 COMMENCEMENT OF THE PROCEEDING, OR WAS THE HOME STATE OF THE CHILD WITH-
41 IN SIX MONTHS BEFORE THE COMMENCEMENT OF THE PROCEEDING AND THE CHILD IS
42 ABSENT FROM THIS STATE BUT A PARENT OR PERSON ACTING AS A PARENT CONTIN-
43 UES TO LIVE IN THIS STATE;
44 (B) A COURT OF ANOTHER STATE DOES NOT HAVE JURISDICTION UNDER PARA-
45 GRAPH (A) OF THIS SUBDIVISION, OR A COURT OF THE HOME STATE OF THE CHILD
46 HAS DECLINED TO EXERCISE JURISDICTION ON THE GROUND THAT THIS STATE IS
47 THE MORE APPROPRIATE FORUM UNDER SECTION SEVENTY-SIX-F OR SEVENTY-SIX-G
48 OF THIS TITLE, AND:
49 (1) THE CHILD AND THE CHILD`S PARENTS, OR THE CHILD AND AT LEAST ONE
50 PARENT OR A PERSON ACTING AS A PARENT, HAVE A SIGNIFICANT CONNECTION
51 WITH THIS STATE OTHER THAN MERE PHYSICAL PRESENCE; AND
52 (2) SUBSTANTIAL EVIDENCE IS AVAILABLE IN THIS STATE CONCERNING THE
53 CHILD`S CARE, PROTECTION, TRAINING, AND PERSONAL RELATIONSHIPS;
54 (C) ALL COURTS HAVING JURISDICTION UNDER PARAGRAPH (A) OR (B) OF THIS
55 SUBDIVISION HAVE DECLINED TO EXERCISE JURISDICTION ON THE GROUND THAT A
56 COURT OF THIS STATE IS THE MORE APPROPRIATE FORUM TO DETERMINE THE
S. 4138--A 6
1 CUSTODY OF THE CHILD UNDER SECTION SEVENTY-SIX-F OR SEVENTY-SIX-G OF
2 THIS TITLE; OR
3 (D) NO COURT OF ANY OTHER STATE WOULD HAVE JURISDICTION UNDER THE
4 CRITERIA SPECIFIED IN PARAGRAPH (A), (B) OR (C) OF THIS SUBDIVISION.
5 2. SUBDIVISION ONE OF THIS SECTION IS THE EXCLUSIVE JURISDICTIONAL
6 BASIS FOR MAKING A CHILD CUSTODY DETERMINATION BY A COURT OF THIS STATE.
7 3. PHYSICAL PRESENCE OF, OR PERSONAL JURISDICTION OVER, A PARTY OR A
8 CHILD IS NOT NECESSARY OR SUFFICIENT TO MAKE A CHILD CUSTODY DETERMI-
9 NATION.
10 S 76-A. EXCLUSIVE, CONTINUING JURISDICTION. 1. EXCEPT AS OTHERWISE
11 PROVIDED IN SECTION SEVENTY-SIX-C OF THIS TITLE, A COURT OF THIS STATE
12 WHICH HAS MADE A CHILD CUSTODY DETERMINATION CONSISTENT WITH SECTION
13 SEVENTY-SIX OR SEVENTY-SIX-B OF THIS TITLE HAS EXCLUSIVE, CONTINUING
14 JURISDICTION OVER THE DETERMINATION UNTIL:
15 (A) A COURT OF THIS STATE DETERMINES THAT NEITHER THE CHILD, THE CHILD
16 AND ONE PARENT, NOR THE CHILD AND A PERSON ACTING AS A PARENT HAVE A
17 SIGNIFICANT CONNECTION WITH THIS STATE AND THAT SUBSTANTIAL EVIDENCE IS
18 NO LONGER AVAILABLE IN THIS STATE CONCERNING THE CHILD`S CARE,
19 PROTECTION, TRAINING, AND PERSONAL RELATIONSHIPS; OR
20 (B) A COURT OF THIS STATE OR A COURT OF ANOTHER STATE DETERMINES THAT
21 THE CHILD, THE CHILD`S PARENTS, AND ANY PERSON ACTING AS A PARENT DO
22 NOT PRESENTLY RESIDE IN THIS STATE.
23 2. A COURT OF THIS STATE WHICH HAS MADE A CHILD CUSTODY DETERMINATION
24 AND DOES NOT HAVE EXCLUSIVE, CONTINUING JURISDICTION UNDER THIS SECTION
25 MAY MODIFY THAT DETERMINATION ONLY IF IT HAS JURISDICTION TO MAKE AN
26 INITIAL DETERMINATION UNDER SECTION SEVENTY-SIX OF THIS TITLE.
27 S 76-B. JURISDICTION TO MODIFY DETERMINATION. EXCEPT AS OTHERWISE
28 PROVIDED IN SECTION SEVENTY-SIX-C OF THIS TITLE, A COURT OF THIS STATE
29 MAY NOT MODIFY A CHILD CUSTODY DETERMINATION MADE BY A COURT OF ANOTHER
30 STATE UNLESS A COURT OF THIS STATE HAS JURISDICTION TO MAKE AN INITIAL
31 DETERMINATION UNDER PARAGRAPH (A) OR (B) OF SUBDIVISION ONE OF SECTION
32 SEVENTY-SIX OF THIS TITLE AND:
33 1. THE COURT OF THE OTHER STATE DETERMINES IT NO LONGER HAS EXCLUSIVE,
34 CONTINUING JURISDICTION UNDER SECTION SEVENTY-SIX-A OF THIS TITLE OR
35 THAT A COURT OF THIS STATE WOULD BE A MORE CONVENIENT FORUM UNDER
36 SECTION SEVENTY-SIX-F OF THIS TITLE; OR
37 2. A COURT OF THIS STATE OR A COURT OF THE OTHER STATE DETERMINES THAT
38 THE CHILD, THE CHILD`S PARENTS, AND ANY PERSON ACTING AS A PARENT DO NOT
39 PRESENTLY RESIDE IN THE OTHER STATE.
40 S 76-C. TEMPORARY EMERGENCY JURISDICTION. 1. A COURT OF THIS STATE HAS
41 TEMPORARY EMERGENCY JURISDICTION IF THE CHILD IS PRESENT IN THIS STATE
42 AND THE CHILD HAS BEEN ABANDONED OR IT IS NECESSARY IN AN EMERGENCY TO
43 PROTECT THE CHILD, A SIBLING OR PARENT OF THE CHILD.
44 2. IF THERE IS NO PREVIOUS CHILD CUSTODY DETERMINATION THAT IS ENTI-
45 TLED TO BE ENFORCED UNDER THIS ARTICLE AND A CHILD CUSTODY PROCEEDING
46 HAS NOT BEEN COMMENCED IN A COURT OF A STATE HAVING JURISDICTION UNDER
47 SECTIONS SEVENTY-SIX THROUGH SEVENTY-SIX-B OF THIS TITLE, A CHILD
48 CUSTODY DETERMINATION MADE UNDER THIS SECTION REMAINS IN EFFECT UNTIL AN
49 ORDER IS OBTAINED FROM A COURT OF A STATE HAVING JURISDICTION UNDER
50 SECTIONS SEVENTY-SIX THROUGH SEVENTY-SIX-B OF THIS TITLE. IF A CHILD
51 CUSTODY PROCEEDING HAS NOT BEEN OR IS NOT COMMENCED IN A COURT OF A
52 STATE HAVING JURISDICTION UNDER SECTIONS SEVENTY-SIX THROUGH
53 SEVENTY-SIX-B OF THIS TITLE, A CHILD CUSTODY DETERMINATION MADE UNDER
54 THIS SECTION BECOMES A FINAL DETERMINATION, IF IT SO PROVIDES AND THIS
55 STATE BECOMES THE HOME STATE OF THE CHILD.
S. 4138--A 7
1 3. IF THERE IS A PREVIOUS CHILD CUSTODY DETERMINATION THAT IS ENTITLED
2 TO BE ENFORCED UNDER THIS ARTICLE, OR A CHILD CUSTODY PROCEEDING HAS
3 BEEN COMMENCED IN A COURT OF A STATE HAVING JURISDICTION UNDER SECTIONS
4 SEVENTY-SIX THROUGH SEVENTY-SIX-B OF THIS TITLE, ANY ORDER ISSUED BY A
5 COURT OF THIS STATE UNDER THIS SECTION MUST SPECIFY IN THE ORDER A PERI-
6 OD THAT THE COURT CONSIDERS ADEQUATE TO ALLOW THE PERSON SEEKING AN
7 ORDER TO OBTAIN AN ORDER FROM THE STATE HAVING JURISDICTION UNDER
8 SECTIONS SEVENTY-SIX THROUGH SEVENTY-SIX-B OF THIS TITLE. THE ORDER
9 ISSUED IN THIS STATE REMAINS IN EFFECT UNTIL AN ORDER IS OBTAINED FROM
10 THE OTHER STATE WITHIN THE PERIOD SPECIFIED OR THE PERIOD EXPIRES.
11 4. A COURT OF THIS STATE WHICH HAS BEEN ASKED TO MAKE A CHILD CUSTODY
12 DETERMINATION UNDER THIS SECTION, UPON BEING INFORMED THAT A CHILD
13 CUSTODY PROCEEDING HAS BEEN COMMENCED IN, OR A CHILD CUSTODY DETERMI-
14 NATION HAS BEEN MADE BY, A COURT OF A STATE HAVING JURISDICTION UNDER
15 SECTIONS SEVENTY-SIX THROUGH SEVENTY-SIX-B OF THIS TITLE, SHALL IMME-
16 DIATELY COMMUNICATE WITH THE OTHER COURT. A COURT OF THIS STATE WHICH IS
17 EXERCISING JURISDICTION PURSUANT TO SECTIONS SEVENTY-SIX THROUGH SEVEN-
18 TY-SIX-B OF THIS TITLE, UPON BEING INFORMED THAT A CHILD CUSTODY
19 PROCEEDING HAS BEEN COMMENCED IN, OR A CHILD CUSTODY DETERMINATION HAS
20 BEEN MADE BY, A COURT OF ANOTHER STATE UNDER A STATUTE SIMILAR TO THIS
21 SECTION SHALL IMMEDIATELY COMMUNICATE WITH THE COURT OF THAT STATE TO
22 RESOLVE THE EMERGENCY, PROTECT THE SAFETY OF THE PARTIES AND THE CHILD,
23 AND DETERMINE A PERIOD FOR THE DURATION OF THE TEMPORARY ORDER.
24 S 76-D. NOTICE; OPPORTUNITY TO BE HEARD; JOINDER. 1. BEFORE A CHILD
25 CUSTODY DETERMINATION IS MADE UNDER THIS ARTICLE, NOTICE AND AN OPPORTU-
26 NITY TO BE HEARD IN ACCORDANCE WITH THE STANDARDS OF SECTION
27 SEVENTY-FIVE-G OF THIS ARTICLE MUST BE GIVEN TO ALL PERSONS ENTITLED TO
28 NOTICE UNDER THE LAWS OF THIS STATE AS IN CHILD CUSTODY PROCEEDINGS
29 BETWEEN RESIDENTS OF THIS STATE, ANY PARENT WHOSE PARENTAL RIGHTS HAVE
30 NOT BEEN PREVIOUSLY TERMINATED, AND ANY PERSON HAVING PHYSICAL CUSTODY
31 OF THE CHILD.
32 2. THIS ARTICLE DOES NOT GOVERN THE ENFORCEABILITY OF A CHILD CUSTODY
33 DETERMINATION MADE WITHOUT NOTICE OR AN OPPORTUNITY TO BE HEARD.
34 3. THE OBLIGATION TO JOIN A PARTY AND THE RIGHT TO INTERVENE AS A
35 PARTY IN A CHILD CUSTODY PROCEEDING UNDER THIS ARTICLE ARE GOVERNED BY
36 THE LAWS OF THIS STATE AS IN CHILD CUSTODY PROCEEDINGS BETWEEN RESIDENTS
37 OF THIS STATE.
38 S 76-E. SIMULTANEOUS PROCEEDINGS. 1. EXCEPT AS OTHERWISE PROVIDED IN
39 SECTION SEVENTY-SIX-C OF THIS TITLE, A COURT OF THIS STATE MAY NOT EXER-
40 CISE ITS JURISDICTION UNDER THIS TITLE IF, AT THE TIME OF THE COMMENCE-
41 MENT OF THE PROCEEDING, A PROCEEDING CONCERNING THE CUSTODY OF THE CHILD
42 HAS BEEN COMMENCED IN A COURT OF ANOTHER STATE HAVING JURISDICTION
43 SUBSTANTIALLY IN CONFORMITY WITH THIS ARTICLE, UNLESS THE PROCEEDING HAS
44 BEEN TERMINATED OR IS STAYED BY THE COURT OF THE OTHER STATE BECAUSE A
45 COURT OF THIS STATE IS A MORE CONVENIENT FORUM UNDER SECTION
46 SEVENTY-SIX-F OF THIS TITLE.
47 2. EXCEPT AS OTHERWISE PROVIDED IN SECTION SEVENTY-SIX-C OF THIS
48 TITLE, A COURT OF THIS STATE, BEFORE HEARING A CHILD CUSTODY PROCEEDING,
49 SHALL EXAMINE THE COURT DOCUMENTS AND OTHER INFORMATION SUPPLIED BY THE
50 PARTIES PURSUANT TO SECTION SEVENTY-SIX-H OF THIS TITLE. IF THE COURT
51 DETERMINES THAT A CHILD CUSTODY PROCEEDING HAS BEEN COMMENCED IN A COURT
52 IN ANOTHER STATE HAVING JURISDICTION SUBSTANTIALLY IN ACCORDANCE WITH
53 THIS ARTICLE, THE COURT OF THIS STATE SHALL STAY ITS PROCEEDING AND
54 COMMUNICATE WITH THE COURT OF THE OTHER STATE. IF THE COURT OF THE STATE
55 HAVING JURISDICTION SUBSTANTIALLY IN ACCORDANCE WITH THIS ARTICLE DOES
S. 4138--A 8
1 NOT DETERMINE THAT THE COURT OF THIS STATE IS A MORE APPROPRIATE FORUM,
2 THE COURT OF THIS STATE SHALL DISMISS THE PROCEEDING.
3 3. IN A PROCEEDING TO MODIFY A CHILD CUSTODY DETERMINATION, A COURT OF
4 THIS STATE SHALL DETERMINE WHETHER A PROCEEDING TO ENFORCE THE DETERMI-
5 NATION HAS BEEN COMMENCED IN ANOTHER STATE. IF A PROCEEDING TO ENFORCE A
6 CHILD CUSTODY DETERMINATION HAS BEEN COMMENCED IN ANOTHER STATE, THE
7 COURT MAY:
8 (A) STAY THE PROCEEDING FOR MODIFICATION PENDING THE ENTRY OF AN ORDER
9 OF A COURT OF THE OTHER STATE ENFORCING, STAYING, DENYING, OR DISMISSING
10 THE PROCEEDING FOR ENFORCEMENT;
11 (B) ENJOIN THE PARTIES FROM CONTINUING WITH THE PROCEEDING FOR
12 ENFORCEMENT; OR
13 (C) PROCEED WITH THE MODIFICATION UNDER CONDITIONS IT CONSIDERS APPRO-
14 PRIATE.
15 S 76-F. INCONVENIENT FORUM. 1. A COURT OF THIS STATE WHICH HAS JURIS-
16 DICTION UNDER THIS ARTICLE TO MAKE A CHILD CUSTODY DETERMINATION MAY
17 DECLINE TO EXERCISE ITS JURISDICTION AT ANY TIME IF IT DETERMINES THAT
18 IT IS AN INCONVENIENT FORUM UNDER THE CIRCUMSTANCES AND THAT A COURT OF
19 ANOTHER STATE IS A MORE APPROPRIATE FORUM. THE ISSUE OF INCONVENIENT
20 FORUM MAY BE RAISED UPON MOTION OF A PARTY, THE CHILD OR THE LAW GUARDI-
21 AN, OR UPON THE COURT`S OWN MOTION, OR REQUEST OF ANOTHER COURT.
22 2. BEFORE DETERMINING WHETHER IT IS AN INCONVENIENT FORUM, A COURT OF
23 THIS STATE SHALL CONSIDER WHETHER IT IS APPROPRIATE FOR A COURT OF
24 ANOTHER STATE TO EXERCISE JURISDICTION. FOR THIS PURPOSE, THE COURT
25 SHALL ALLOW THE PARTIES TO SUBMIT INFORMATION AND SHALL CONSIDER ALL
26 RELEVANT FACTORS, INCLUDING:
27 (A) WHETHER DOMESTIC VIOLENCE HAS OCCURRED AND IS LIKELY TO CONTINUE
28 IN THE FUTURE AND WHICH STATE COULD BEST PROTECT THE PARTIES AND THE
29 CHILD;
30 (B) THE LENGTH OF TIME THE CHILD HAS RESIDED OUTSIDE THIS STATE;
31 (C) THE DISTANCE BETWEEN THE COURT IN THIS STATE AND THE COURT IN THE
32 STATE THAT WOULD ASSUME JURISDICTION;
33 (D) THE RELATIVE FINANCIAL CIRCUMSTANCES OF THE PARTIES;
34 (E) ANY AGREEMENT OF THE PARTIES AS TO WHICH STATE SHOULD ASSUME
35 JURISDICTION;
36 (F) THE NATURE AND LOCATION OF THE EVIDENCE REQUIRED TO RESOLVE THE
37 PENDING LITIGATION, INCLUDING TESTIMONY OF THE CHILD;
38 (G) THE ABILITY OF THE COURT OF EACH STATE TO DECIDE THE ISSUE EXPE-
39 DITIOUSLY AND THE PROCEDURES NECESSARY TO PRESENT THE EVIDENCE; AND
40 (H) THE FAMILIARITY OF THE COURT OF EACH STATE WITH THE FACTS AND
41 ISSUES IN THE PENDING LITIGATION.
42 3. IF A COURT OF THIS STATE DETERMINES THAT IT IS AN INCONVENIENT
43 FORUM AND THAT A COURT OF ANOTHER STATE IS A MORE APPROPRIATE FORUM, IT
44 SHALL STAY THE PROCEEDINGS UPON CONDITION THAT A CHILD CUSTODY PROCEED-
45 ING BE PROMPTLY COMMENCED IN ANOTHER DESIGNATED STATE AND MAY IMPOSE ANY
46 OTHER CONDITION THE COURT CONSIDERS JUST AND PROPER.
47 4. A COURT OF THIS STATE MAY DECLINE TO EXERCISE ITS JURISDICTION
48 UNDER THIS ARTICLE IF A CHILD CUSTODY DETERMINATION IS INCIDENTAL TO AN
49 ACTION FOR DIVORCE OR ANOTHER PROCEEDING WHILE STILL RETAINING JURISDIC-
50 TION OVER THE DIVORCE OR OTHER PROCEEDING.
51 S 76-G. JURISDICTION DECLINED BY REASON OF CONDUCT. 1. EXCEPT AS
52 OTHERWISE PROVIDED IN SECTION SEVENTY-SIX-C OF THIS TITLE OR BY OTHER
53 LAWS OF THIS STATE, IF A COURT OF THIS STATE HAS JURISDICTION UNDER THIS
54 ARTICLE BECAUSE A PERSON SEEKING TO INVOKE ITS JURISDICTION HAS ENGAGED
55 IN UNJUSTIFIABLE CONDUCT, THE COURT SHALL DECLINE TO EXERCISE ITS JURIS-
56 DICTION UNLESS:
S. 4138--A 9
1 (A) THE PARENTS AND ALL PERSONS ACTING AS PARENTS HAVE ACQUIESCED IN
2 THE EXERCISE OF JURISDICTION;
3 (B) A COURT OF THE STATE OTHERWISE HAVING JURISDICTION UNDER SECTIONS
4 SEVENTY-SIX THROUGH SEVENTY-SIX-B OF THIS TITLE DETERMINES THAT THIS
5 STATE IS A MORE APPROPRIATE FORUM UNDER SECTION SEVENTY-SIX-F OF THIS
6 TITLE; OR
7 (C) NO COURT OF ANY OTHER STATE WOULD HAVE JURISDICTION UNDER THE
8 CRITERIA SPECIFIED IN SECTIONS SEVENTY-SIX THROUGH SEVENTY-SIX-B OF THIS
9 TITLE.
10 2. IF A COURT OF THIS STATE DECLINES TO EXERCISE ITS JURISDICTION
11 PURSUANT TO SUBDIVISION ONE OF THIS SECTION, IT MAY FASHION AN APPROPRI-
12 ATE REMEDY TO ENSURE THE SAFETY OF THE CHILD AND PREVENT A REPETITION OF
13 THE UNJUSTIFIABLE CONDUCT, INCLUDING STAYING THE PROCEEDING UNTIL A
14 CHILD CUSTODY PROCEEDING IS COMMENCED IN A COURT HAVING JURISDICTION
15 UNDER SECTIONS SEVENTY-SIX THROUGH SEVENTY-SIX-B OF THIS TITLE.
16 3. IF A COURT DISMISSES A PETITION OR STAYS A PROCEEDING BECAUSE IT
17 DECLINES TO EXERCISE ITS JURISDICTION PURSUANT TO SUBDIVISION ONE OF
18 THIS SECTION, IT SHALL ASSESS AGAINST THE PARTY SEEKING TO INVOKE ITS
19 JURISDICTION NECESSARY AND REASONABLE EXPENSES INCLUDING COSTS, COMMUNI-
20 CATION EXPENSES, ATTORNEY`S FEES, INVESTIGATIVE FEES, EXPENSES FOR
21 WITNESSES, TRAVEL EXPENSES, AND CHILD CARE DURING THE COURSE OF THE
22 PROCEEDINGS, UNLESS THE PARTY FROM WHOM FEES ARE SOUGHT ESTABLISHES THAT
23 THE ASSESSMENT WOULD BE INAPPROPRIATE. NO FEES, COSTS OR EXPENSES SHALL
24 BE ASSESSED AGAINST A PARTY WHO IS FLEEING AN INCIDENT OR PATTERN OF
25 DOMESTIC VIOLENCE UNLESS THE COURT IS CONVINCED BY A PREPONDERANCE OF
26 EVIDENCE THAT SUCH ASSESSMENT WOULD BE CLEARLY APPROPRIATE. THE COURT
27 MAY NOT ASSESS FEES, COSTS, OR EXPENSES AGAINST THIS STATE UNLESS
28 AUTHORIZED BY LAW OTHER THAN THIS ARTICLE.
29 4. IN MAKING A DETERMINATION UNDER THIS SECTION, A COURT SHALL NOT
30 CONSIDER AS A FACTOR WEIGHING AGAINST THE PETITIONER ANY TAKING OF THE
31 CHILD, OR RETENTION OF THE CHILD AFTER A VISIT OR OTHER TEMPORARY RELIN-
32 QUISHMENT OF PHYSICAL CUSTODY, FROM THE PERSON WHO HAS LEGAL CUSTODY, IF
33 THERE IS EVIDENCE THAT THE TAKING OR RETENTION OF THE CHILD WAS TO
34 PROTECT THE PETITIONER FROM DOMESTIC VIOLENCE OR THE CHILD OR SIBLING OF
35 THE CHILD FROM MISTREATMENT OR ABUSE.
36 S 76-H. INFORMATION TO BE SUBMITTED TO COURT. 1. SUBJECT TO SUBDIVI-
37 SION TWO OF SECTION ONE HUNDRED FIFTY-FOUR-B OF THE FAMILY COURT ACT OR
38 SUBDIVISION FIVE OF THIS SECTION, IN A CHILD CUSTODY PROCEEDING, EACH
39 PARTY, IN ITS FIRST PLEADING OR IN AN ATTACHED AFFIDAVIT, SHALL GIVE
40 INFORMATION, IF REASONABLY ASCERTAINABLE, UNDER OATH AS TO THE CHILD`S
41 PRESENT ADDRESS OR WHEREABOUTS, THE PLACES WHERE THE CHILD HAS LIVED
42 DURING THE LAST FIVE YEARS, AND THE NAMES AND PRESENT ADDRESSES OF THE
43 PERSONS WITH WHOM THE CHILD HAS LIVED DURING THAT PERIOD. THE PLEADING
44 OR AFFIDAVIT MUST STATE WHETHER THE PARTY:
45 (A) HAS PARTICIPATED, AS A PARTY OR WITNESS OR IN ANY OTHER CAPACITY,
46 IN ANY OTHER PROCEEDING CONCERNING THE CUSTODY OF OR VISITATION WITH THE
47 CHILD AND, IF SO, IDENTIFY THE COURT, THE CASE NUMBER, AND THE DATE OF
48 THE CHILD CUSTODY DETERMINATION, IF ANY;
49 (B) KNOWS OF ANY PROCEEDING THAT COULD AFFECT THE CURRENT PROCEEDING,
50 INCLUDING PROCEEDINGS FOR ENFORCEMENT AND PROCEEDINGS RELATING TO DOMES-
51 TIC VIOLENCE, PROTECTIVE ORDERS, TERMINATION OF PARENTAL RIGHTS, AND
52 ADOPTIONS AND, IF SO, IDENTIFY THE COURT, THE CASE NUMBER, AND THE
53 NATURE OF THE PROCEEDING; AND
54 (C) KNOWS THE NAMES AND ADDRESSES OF ANY PERSON NOT A PARTY TO THE
55 PROCEEDING WHO HAS PHYSICAL CUSTODY OF THE CHILD OR CLAIMS RIGHTS OF
S. 4138--A 10
1 LEGAL CUSTODY OR PHYSICAL CUSTODY OF, OR VISITATION WITH, THE CHILD AND,
2 IF SO, THE NAMES AND ADDRESSES OF THOSE PERSONS.
3 2. IF THE INFORMATION REQUIRED BY SUBDIVISION ONE OF THIS SECTION IS
4 NOT FURNISHED, THE COURT, UPON MOTION OF A PARTY OR ITS OWN MOTION, MAY
5 STAY THE PROCEEDING UNTIL THE INFORMATION IS FURNISHED.
6 3. IF THE DECLARATION AS TO ANY OF THE ITEMS DESCRIBED IN PARAGRAPHS
7 (A) THROUGH (C) OF SUBDIVISION ONE OF THIS SECTION IS IN THE AFFIRMA-
8 TIVE, THE DECLARANT SHALL GIVE ADDITIONAL INFORMATION UNDER OATH AS
9 REQUIRED BY THE COURT. THE COURT MAY EXAMINE THE PARTIES UNDER OATH AS
10 TO DETAILS OF THE INFORMATION FURNISHED AND OTHER MATTERS PERTINENT TO
11 THE COURT`S JURISDICTION AND THE DISPOSITION OF THE CASE.
12 4. EACH PARTY HAS A CONTINUING DUTY TO INFORM THE COURT OF ANY
13 PROCEEDING IN THIS OR ANY OTHER STATE THAT COULD AFFECT THE CURRENT
14 PROCEEDING.
15 5. IF A PARTY ALLEGES IN AN AFFIDAVIT OR A PLEADING UNDER OATH THAT
16 THE HEALTH, SAFETY, OR LIBERTY OF A PARTY OR CHILD WOULD BE JEOPARDIZED
17 BY DISCLOSURE OF IDENTIFYING INFORMATION, THE INFORMATION MUST BE SEALED
18 AND MAY NOT BE DISCLOSED TO THE OTHER PARTY OR THE PUBLIC UNLESS THE
19 COURT ORDERS THE DISCLOSURE TO BE MADE AFTER A HEARING IN WHICH THE
20 COURT TAKES INTO CONSIDERATION THE HEALTH, SAFETY, OR LIBERTY OF THE
21 PARTY OR CHILD AND DETERMINES THAT THE DISCLOSURE IS IN THEIR BEST
22 INTERESTS, AS WELL AS THE INTEREST OF JUSTICE.
23 S 76-I. APPEARANCE OF PARTIES AND CHILD. 1. IN A CHILD CUSTODY
24 PROCEEDING IN THIS STATE, THE COURT MAY ORDER A PARTY TO THE PROCEEDING
25 WHO IS IN THIS STATE TO APPEAR BEFORE THE COURT IN PERSON WITH OR WITH-
26 OUT THE CHILD. THE COURT MAY ORDER ANY PERSON WHO IS IN THIS STATE AND
27 WHO HAS PHYSICAL CUSTODY OR CONTROL OF THE CHILD TO APPEAR IN PERSON
28 WITH THE CHILD.
29 2. IF A PARTY TO A CHILD CUSTODY PROCEEDING WHOSE PRESENCE IS DESIRED
30 BY THE COURT IS OUTSIDE THIS STATE, THE COURT MAY ORDER THAT A NOTICE
31 GIVEN PURSUANT TO SECTION SEVENTY-FIVE-G OF THIS ARTICLE INCLUDE A
32 STATEMENT DIRECTING THE PARTY TO APPEAR IN PERSON WITH OR WITHOUT THE
33 CHILD AND INFORMING THE PARTY THAT FAILURE TO APPEAR MAY RESULT IN A
34 DECISION ADVERSE TO THE PARTY.
35 3. THE COURT MAY ENTER ANY ORDERS NECESSARY TO ENSURE THE SAFETY OF
36 THE CHILD AND OF ANY PERSON ORDERED TO APPEAR UNDER THIS SECTION.
37 4. IF A PARTY TO A CHILD CUSTODY PROCEEDING WHO IS OUTSIDE THIS STATE
38 IS DIRECTED TO APPEAR UNDER SUBDIVISION TWO OF THIS SECTION OR DESIRES
39 TO APPEAR PERSONALLY BEFORE THE COURT WITH OR WITHOUT THE CHILD, THE
40 COURT MAY REQUIRE ANOTHER PARTY TO PAY REASONABLE AND NECESSARY TRAVEL
41 AND OTHER EXPENSES OF THE PARTY SO APPEARING AND OF THE CHILD.
42 TITLE 3
43 ENFORCEMENT
44 SECTION 77. DEFINITIONS.
45 77-A. ENFORCEMENT UNDER HAGUE CONVENTION.
46 77-B. DUTY TO ENFORCE.
47 77-C. TEMPORARY VISITATION.
48 77-D. REGISTRATION OF CHILD CUSTODY DETERMINATION.
49 77-E. ENFORCEMENT OF REGISTERED DETERMINATION.
50 77-F. SIMULTANEOUS PROCEEDINGS.
51 77-G. EXPEDITED ENFORCEMENT OF CHILD CUSTODY DETERMINATION.
52 77-H. SERVICE OF PETITION AND ORDER.
53 77-I. HEARING AND ORDER.
54 77-J. WARRANT TO TAKE PHYSICAL CUSTODY OF CHILD.
55 77-K. COSTS, FEES AND EXPENSES.
S. 4138--A 11
1 77-L. RECOGNITION AND ENFORCEMENT.
2 77-M. APPEALS.
3 77-N. ROLE OF PROSECUTOR OR PUBLIC OFFICIAL.
4 77-O. ROLE OF LAW ENFORCEMENT.
5 77-P. COSTS AND EXPENSES.
6 S 77. DEFINITIONS. AS USED IN THIS TITLE:
7 1. "PETITIONER" MEANS A PERSON WHO SEEKS ENFORCEMENT OF AN ORDER FOR
8 RETURN OF A CHILD UNDER THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF
9 INTERNATIONAL CHILD ABDUCTION OR ENFORCEMENT OF A CHILD CUSTODY DETERMI-
10 NATION.
11 2. "RESPONDENT" MEANS A PERSON AGAINST WHOM A PROCEEDING HAS BEEN
12 COMMENCED FOR ENFORCEMENT OF AN ORDER FOR RETURN OF A CHILD UNDER THE
13 HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
14 OR ENFORCEMENT OF A CHILD CUSTODY DETERMINATION.
15 S 77-A. ENFORCEMENT UNDER HAGUE CONVENTION. UNDER THIS ACT, A COURT OF
16 THIS STATE MAY ENFORCE AN ORDER FOR THE RETURN OF THE CHILD MADE UNDER
17 THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUC-
18 TION AS IF IT WERE A CHILD CUSTODY DETERMINATION.
19 S 77-B. DUTY TO ENFORCE. 1. A COURT OF THIS STATE SHALL RECOGNIZE AND
20 ENFORCE A CHILD CUSTODY DETERMINATION OF A COURT OF ANOTHER STATE IF THE
21 LATTER COURT EXERCISED JURISDICTION IN SUBSTANTIAL CONFORMITY WITH THIS
22 ARTICLE OR THE DETERMINATION WAS MADE UNDER FACTUAL CIRCUMSTANCES MEET-
23 ING THE JURISDICTIONAL STANDARDS OF THIS ARTICLE AND THE DETERMINATION
24 HAS NOT BEEN MODIFIED IN ACCORDANCE WITH THIS ARTICLE.
25 2. A COURT OF THIS STATE MAY UTILIZE ANY REMEDY AVAILABLE UNDER OTHER
26 LAWS OF THIS STATE TO ENFORCE A CHILD CUSTODY DETERMINATION MADE BY A
27 COURT OF ANOTHER STATE. THE REMEDIES PROVIDED IN THIS TITLE ARE CUMULA-
28 TIVE AND DO NOT AFFECT THE AVAILABILITY OF OTHER REMEDIES TO ENFORCE A
29 CHILD CUSTODY DETERMINATION.
30 S 77-C. TEMPORARY VISITATION. 1. A COURT OF THIS STATE WHICH DOES NOT
31 HAVE JURISDICTION TO MODIFY A CHILD CUSTODY DETERMINATION, MAY ISSUE A
32 TEMPORARY ORDER ENFORCING:
33 (A) A VISITATION SCHEDULE MADE BY A COURT OF ANOTHER STATE; OR
34 (B) THE VISITATION PROVISIONS OF A CHILD CUSTODY DETERMINATION OF
35 ANOTHER STATE THAT DOES NOT PROVIDE FOR A SPECIFIC VISITATION SCHEDULE.
36 2. IF A COURT OF THIS STATE MAKES AN ORDER UNDER PARAGRAPH (B) OF
37 SUBDIVISION ONE OF THIS SECTION, IT SHALL SPECIFY IN THE ORDER A PERIOD
38 THAT IT CONSIDERS ADEQUATE TO ALLOW THE PETITIONER TO OBTAIN AN ORDER
39 FROM A COURT HAVING JURISDICTION UNDER THE CRITERIA SPECIFIED IN TITLE
40 TWO OF THIS ARTICLE. THE ORDER REMAINS IN EFFECT UNTIL AN ORDER IS
41 OBTAINED FROM THE OTHER COURT OR THE PERIOD EXPIRES.
42 S 77-D. REGISTRATION OF CHILD CUSTODY DETERMINATION. 1. A CHILD CUSTO-
43 DY DETERMINATION ISSUED BY A COURT OF ANOTHER STATE MAY BE REGISTERED IN
44 THIS STATE, WITH OR WITHOUT A SIMULTANEOUS REQUEST FOR ENFORCEMENT, BY
45 SENDING TO THE APPROPRIATE COURT IN THIS STATE:
46 (A) A LETTER OR OTHER DOCUMENT REQUESTING REGISTRATION;
47 (B) TWO COPIES, INCLUDING ONE CERTIFIED COPY, OF THE DETERMINATION
48 SOUGHT TO BE REGISTERED, AND A STATEMENT UNDER PENALTY OF PERJURY THAT
49 TO THE BEST OF THE KNOWLEDGE AND BELIEF OF THE PERSON SEEKING REGISTRA-
50 TION THE ORDER HAS NOT BEEN MODIFIED; AND
51 (C) EXCEPT AS OTHERWISE PROVIDED IN SECTION SEVENTY-SIX-H OF THIS
52 ARTICLE, THE NAME AND ADDRESS OF THE PERSON SEEKING REGISTRATION AND ANY
53 PARENT OR PERSON ACTING AS A PARENT WHO HAS BEEN AWARDED CUSTODY OR
54 VISITATION IN THE CHILD CUSTODY DETERMINATION SOUGHT TO BE REGISTERED.
55 2. ON RECEIPT OF THE DOCUMENTS REQUIRED BY SUBDIVISION ONE OF THIS
56 SECTION, THE REGISTERING COURT SHALL:
S. 4138--A 12
1 (A) CAUSE THE DETERMINATION TO BE FILED AS A FOREIGN JUDGMENT, TOGETH-
2 ER WITH ONE COPY OF ANY ACCOMPANYING DOCUMENTS AND INFORMATION, REGARD-
3 LESS OF THEIR FORM; AND
4 (B) SERVE NOTICE UPON THE PERSONS NAMED PURSUANT TO SUBDIVISION ONE OF
5 THIS SECTION AND PROVIDE THEM WITH AN OPPORTUNITY TO CONTEST THE REGIS-
6 TRATION IN ACCORDANCE WITH THIS SECTION.
7 3. THE NOTICE REQUIRED BY PARAGRAPH (B) OF SUBDIVISION TWO OF THIS
8 SECTION MUST STATE THAT:
9 (A) A REGISTERED DETERMINATION IS ENFORCEABLE AS OF THE DATE OF THE
10 REGISTRATION IN THE SAME MANNER AS A DETERMINATION ISSUED BY A COURT OF
11 THIS STATE;
12 (B) A HEARING TO CONTEST THE VALIDITY OF THE REGISTERED DETERMINATION
13 MUST BE REQUESTED WITHIN TWENTY DAYS AFTER SERVICE OF NOTICE; AND
14 (C) FAILURE TO CONTEST THE REGISTRATION WILL RESULT IN CONFIRMATION OF
15 THE CHILD CUSTODY DETERMINATION AND PRECLUDE FURTHER CONTEST OF THAT
16 DETERMINATION WITH RESPECT TO ANY MATTER THAT COULD HAVE BEEN ASSERTED.
17 4. A PERSON SEEKING TO CONTEST THE VALIDITY OF A REGISTERED ORDER MUST
18 REQUEST A HEARING WITHIN TWENTY DAYS AFTER SERVICE OF THE NOTICE. AT
19 THAT HEARING, THE COURT SHALL CONFIRM THE REGISTERED ORDER UNLESS THE
20 PERSON CONTESTING REGISTRATION ESTABLISHES THAT:
21 (A) THE ISSUING COURT DID NOT HAVE JURISDICTION UNDER TITLE TWO OF
22 THIS ARTICLE;
23 (B) THE CHILD CUSTODY DETERMINATION SOUGHT TO BE REGISTERED HAS BEEN
24 VACATED, STAYED, OR MODIFIED BY A COURT HAVING JURISDICTION TO DO SO
25 UNDER TITLE TWO OF THIS ARTICLE; OR
26 (C) THE PERSON CONTESTING REGISTRATION WAS ENTITLED TO NOTICE, BUT
27 NOTICE WAS NOT GIVEN IN ACCORDANCE WITH THE STANDARDS OF SECTION SEVEN-
28 TY-FIVE-G OF THIS ARTICLE, IN THE PROCEEDINGS BEFORE THE COURT THAT
29 ISSUED THE ORDER FOR WHICH REGISTRATION IS SOUGHT.
30 5. IF A TIMELY REQUEST FOR A HEARING TO CONTEST THE VALIDITY OF THE
31 REGISTRATION IS NOT MADE, THE REGISTRATION IS CONFIRMED AS A MATTER OF
32 LAW AND THE PERSON REQUESTING REGISTRATION AND ALL PERSONS SERVED MUST
33 BE NOTIFIED OF THE CONFIRMATION.
34 6. CONFIRMATION OF A REGISTERED ORDER, WHETHER BY OPERATION OF LAW OR
35 AFTER NOTICE AND HEARING, PRECLUDES FURTHER CONTEST OF THE ORDER WITH
36 RESPECT TO ANY MATTER THAT COULD HAVE BEEN ASSERTED AT THE TIME OF
37 REGISTRATION.
38 S 77-E. ENFORCEMENT OF REGISTERED DETERMINATION. 1. A COURT OF THIS
39 STATE MAY GRANT ANY RELIEF NORMALLY AVAILABLE UNDER THE LAW OF THIS
40 STATE TO ENFORCE A REGISTERED CHILD CUSTODY DETERMINATION MADE BY A
41 COURT OF ANOTHER STATE.
42 2. A COURT OF THIS STATE SHALL RECOGNIZE AND ENFORCE, BUT MAY NOT
43 MODIFY, EXCEPT IN ACCORDANCE WITH TITLE TWO OF THIS ARTICLE, A REGIS-
44 TERED CHILD CUSTODY DETERMINATION OF A COURT OF ANOTHER STATE.
45 S 77-F. SIMULTANEOUS PROCEEDINGS. IF A PROCEEDING FOR ENFORCEMENT
46 UNDER THIS TITLE IS COMMENCED IN A COURT OF THIS STATE AND THE COURT
47 DETERMINES THAT A PROCEEDING TO MODIFY THE DETERMINATION IS PENDING IN A
48 COURT OF ANOTHER STATE HAVING JURISDICTION TO MODIFY THE DETERMINATION
49 UNDER TITLE TWO OF THIS ARTICLE, THE ENFORCING COURT SHALL IMMEDIATELY
50 COMMUNICATE WITH THE MODIFYING COURT. THE PROCEEDING FOR ENFORCEMENT
51 CONTINUES UNLESS THE ENFORCING COURT, AFTER CONSULTATION WITH THE MODI-
52 FYING COURT, STAYS OR DISMISSES THE PROCEEDING.
53 S 77-G. EXPEDITED ENFORCEMENT OF CHILD CUSTODY DETERMINATION. 1. A
54 PETITION UNDER THIS TITLE MUST BE VERIFIED. CERTIFIED COPIES OF ALL
55 ORDERS SOUGHT TO BE ENFORCED AND OF ANY ORDER CONFIRMING REGISTRATION
S. 4138--A 13
1 MUST BE ATTACHED TO THE PETITION. A COPY OF A CERTIFIED COPY OF AN ORDER
2 MAY BE ATTACHED INSTEAD OF THE ORIGINAL.
3 2. A PETITION FOR ENFORCEMENT OF A CHILD CUSTODY DETERMINATION MUST
4 STATE:
5 (A) WHETHER THE COURT THAT ISSUED THE DETERMINATION IDENTIFIED THE
6 JURISDICTIONAL BASIS IT RELIED UPON IN EXERCISING JURISDICTION AND, IF
7 SO, WHAT THE BASIS WAS;
8 (B) WHETHER THE DETERMINATION FOR WHICH ENFORCEMENT IS SOUGHT HAS BEEN
9 VACATED, STAYED, OR MODIFIED BY A COURT WHOSE DECISION MUST BE ENFORCED
10 UNDER THIS ARTICLE AND, IF SO, IDENTIFY THE COURT, THE CASE NUMBER, AND
11 THE NATURE OF THE PROCEEDING;
12 (C) WHETHER ANY PROCEEDING HAS BEEN COMMENCED THAT COULD AFFECT THE
13 CURRENT PROCEEDING, INCLUDING PROCEEDINGS RELATING TO DOMESTIC VIOLENCE,
14 PROTECTIVE ORDERS, TERMINATION OF PARENTAL RIGHTS, AND ADOPTIONS AND, IF
15 SO, IDENTIFY THE COURT, THE CASE NUMBER, AND THE NATURE OF THE PROCEED-
16 ING;
17 (D) THE PRESENT PHYSICAL ADDRESS OF THE CHILD AND THE RESPONDENT, IF
18 KNOWN;
19 (E) WHETHER RELIEF IN ADDITION TO THE IMMEDIATE PHYSICAL CUSTODY OF
20 THE CHILD AND ATTORNEY`S FEES IS SOUGHT, INCLUDING A REQUEST FOR ASSIST-
21 ANCE FROM LAW ENFORCEMENT OFFICIALS AND, IF SO, THE RELIEF SOUGHT; AND
22 (F) IF THE CHILD CUSTODY DETERMINATION HAS BEEN REGISTERED AND
23 CONFIRMED UNDER SECTION SEVENTY-SEVEN-D OF THIS TITLE, THE DATE AND
24 PLACE OF REGISTRATION.
25 3. UPON THE FILING OF A PETITION, THE COURT SHALL ISSUE AN ORDER
26 DIRECTING THE RESPONDENT TO APPEAR IN PERSON WITH OR WITHOUT THE CHILD
27 AT A HEARING WITHIN THREE COURT DAYS AND MAY ENTER ANY ORDER NECESSARY
28 TO ENSURE THE SAFETY OF THE PARTIES AND THE CHILD. THE HEARING MUST BE
29 HELD NOT MORE THAN THREE COURT DAYS AFTER THE FILING OF THE PETITION,
30 PROVIDED THAT THE PETITION HAS BEEN SERVED NOT LESS THAN TWENTY-FOUR
31 HOURS PRIOR TO THE HEARING. SERVICE MAY BE BY ANY MEANS DIRECTED BY THE
32 COURT PURSUANT TO SECTION THREE HUNDRED EIGHT OF THE CIVIL PRACTICE LAW
33 AND RULES. THE COURT MAY EXTEND THE DATE OF THE HEARING BRIEFLY FOR GOOD
34 CAUSE SHOWN OR UPON THE REQUEST OF THE PETITIONER.
35 4. AN ORDER ISSUED UNDER SUBDIVISION THREE OF THIS SECTION MUST STATE
36 THE TIME AND PLACE OF THE HEARING AND ADVISE THE RESPONDENT THAT AT THE
37 HEARING THE COURT WILL ORDER THAT THE PETITIONER MAY TAKE IMMEDIATE
38 PHYSICAL CUSTODY OF THE CHILD AND THE PAYMENT OF FEES, COSTS, AND
39 EXPENSES UNDER SECTION SEVENTY-SEVEN-K OF THIS TITLE, AND MAY SCHEDULE A
40 HEARING TO DETERMINE WHETHER FURTHER RELIEF IS APPROPRIATE, UNLESS THE
41 RESPONDENT APPEARS AND ESTABLISHES THAT:
42 (A) THE CHILD CUSTODY DETERMINATION HAS NOT BEEN REGISTERED AND
43 CONFIRMED UNDER SECTION SEVENTY-SEVEN-D OF THIS TITLE AND THAT:
44 (1) THE ISSUING COURT DID NOT HAVE JURISDICTION UNDER TITLE TWO OF
45 THIS ARTICLE;
46 (2) THE CHILD CUSTODY DETERMINATION FOR WHICH ENFORCEMENT IS SOUGHT
47 HAS BEEN VACATED, STAYED, OR MODIFIED BY A COURT HAVING JURISDICTION TO
48 DO SO UNDER TITLE TWO OF THIS ARTICLE;
49 (3) THE RESPONDENT WAS ENTITLED TO NOTICE, BUT NOTICE WAS NOT GIVEN IN
50 ACCORDANCE WITH THE STANDARDS OF SECTION SEVENTY-FIVE-G OF THIS ARTICLE,
51 IN THE PROCEEDINGS BEFORE THE COURT THAT ISSUED THE ORDER FOR WHICH
52 ENFORCEMENT IS SOUGHT; OR
53 (B) THE CHILD CUSTODY DETERMINATION FOR WHICH ENFORCEMENT IS SOUGHT
54 WAS REGISTERED AND CONFIRMED UNDER SECTION SEVENTY-SEVEN-C OF THIS
55 TITLE, BUT HAS BEEN VACATED, STAYED, OR MODIFIED BY A COURT OF A STATE
56 HAVING JURISDICTION TO DO SO UNDER TITLE TWO OF THIS ARTICLE.
S. 4138--A 14
1 S 77-H. SERVICE OF PETITION AND ORDER. EXCEPT AS OTHERWISE PROVIDED IN
2 SECTION SEVENTY-SEVEN-J OF THIS TITLE, THE PETITION AND ORDER MUST BE
3 SERVED, BY ANY METHOD AUTHORIZED BY THE LAWS OF THIS STATE, UPON
4 RESPONDENT AND ANY PERSON WHO HAS PHYSICAL CUSTODY OF THE CHILD.
5 S 77-I. HEARING AND ORDER. 1. UNLESS THE COURT ISSUES A TEMPORARY
6 EMERGENCY ORDER PURSUANT TO SECTION SEVENTY-SIX-C OF THIS ARTICLE, UPON
7 A FINDING THAT A PETITIONER IS ENTITLED TO IMMEDIATE PHYSICAL CUSTODY OF
8 THE CHILD, THE COURT SHALL ORDER THAT THE PETITIONER MAY TAKE IMMEDIATE
9 PHYSICAL CUSTODY OF THE CHILD UNLESS THE RESPONDENT ESTABLISHES THAT:
10 (A) THE CHILD CUSTODY DETERMINATION HAS NOT BEEN REGISTERED AND
11 CONFIRMED UNDER SECTION SEVENTY-SEVEN-D OF THIS TITLE AND THAT:
12 (1) THE ISSUING COURT DID NOT HAVE JURISDICTION UNDER TITLE TWO OF
13 THIS ARTICLE;
14 (2) THE CHILD CUSTODY DETERMINATION FOR WHICH ENFORCEMENT IS SOUGHT
15 HAS BEEN VACATED, STAYED, OR MODIFIED BY A COURT OF A STATE HAVING
16 JURISDICTION TO DO SO UNDER TITLE TWO OF THIS ARTICLE; OR
17 (3) THE RESPONDENT WAS ENTITLED TO NOTICE, BUT NOTICE WAS NOT GIVEN IN
18 ACCORDANCE WITH THE STANDARDS OF SECTION SEVENTY-FIVE-G OF THIS ARTICLE,
19 IN THE PROCEEDINGS BEFORE THE COURT THAT ISSUED THE ORDER FOR WHICH
20 ENFORCEMENT IS SOUGHT; OR
21 (B) THE CHILD CUSTODY DETERMINATION FOR WHICH ENFORCEMENT IS SOUGHT
22 WAS REGISTERED AND CONFIRMED UNDER SECTION SEVENTY-SEVEN-D OF THIS TITLE
23 BUT HAS BEEN VACATED, STAYED, OR MODIFIED BY A COURT OF A STATE HAVING
24 JURISDICTION TO DO SO UNDER TITLE TWO OF THIS ARTICLE.
25 2. THE COURT SHALL AWARD THE FEES, COSTS, AND EXPENSES AUTHORIZED
26 UNDER SECTION SEVENTY-SEVEN-K OF THIS TITLE AND MAY GRANT ADDITIONAL
27 RELIEF, INCLUDING A REQUEST FOR THE ASSISTANCE OF LAW ENFORCEMENT OFFI-
28 CIALS, AND SET A FURTHER HEARING TO DETERMINE WHETHER ADDITIONAL RELIEF
29 IS APPROPRIATE.
30 3. IF A PARTY CALLED TO TESTIFY REFUSES TO ANSWER ON THE GROUND THAT
31 THE TESTIMONY MAY BE SELF-INCRIMINATING, THE COURT MAY DRAW AN ADVERSE
32 INFERENCE FROM THE REFUSAL.
33 4. A PRIVILEGE AGAINST DISCLOSURE OF COMMUNICATIONS BETWEEN SPOUSES
34 AND A DEFENSE OF IMMUNITY BASED ON THE RELATIONSHIP OF HUSBAND AND WIFE
35 OR PARENT AND CHILD MAY NOT BE INVOKED IN A PROCEEDING UNDER THIS ACT.
36 S 77-J. WARRANT TO TAKE PHYSICAL CUSTODY OF CHILD. 1. UPON THE FILING
37 OF A PETITION SEEKING ENFORCEMENT OF A CHILD CUSTODY DETERMINATION, THE
38 PETITIONER MAY FILE A VERIFIED APPLICATION FOR THE ISSUANCE OF A WARRANT
39 TO TAKE PHYSICAL CUSTODY OF THE CHILD IF THE CHILD IS AT IMMINENT RISK
40 OF SUFFERING SERIOUS PHYSICAL HARM OR OF REMOVAL FROM THIS STATE.
41 2. IF THE COURT, UPON THE TESTIMONY OF THE PETITIONER OR OTHER
42 WITNESS, FINDS THAT THE CHILD IS LIKELY TO SUFFER IMMINENT SERIOUS PHYS-
43 ICAL HARM OR TO BE REMOVED FROM THIS STATE, IT MAY ISSUE A WARRANT TO
44 TAKE PHYSICAL CUSTODY OF THE CHILD. EXCEPT IN EXTRAORDINARY CIRCUM-
45 STANCES, THE PETITION MUST BE HEARD ON THE NEXT COURT DAY AFTER THE
46 WARRANT IS EXECUTED. ANY ADJOURNMENT FOR EXTRAORDINARY CIRCUMSTANCES
47 SHALL BE FOR NOT MORE THAN THREE COURT DAYS. THE APPLICATION FOR THE
48 WARRANT MUST INCLUDE THE STATEMENTS REQUIRED BY SUBDIVISION TWO OF
49 SECTION SEVENTY-SEVEN-G OF THIS TITLE.
50 3. A WARRANT TO TAKE PHYSICAL CUSTODY OF A CHILD MUST:
51 (A) RECITE THE FACTS UPON WHICH A CONCLUSION OF IMMINENT SERIOUS PHYS-
52 ICAL HARM OR REMOVAL FROM THE JURISDICTION IS BASED;
53 (B) DIRECT LAW ENFORCEMENT OFFICERS TO TAKE PHYSICAL CUSTODY OF THE
54 CHILD IMMEDIATELY; AND
55 (C) PROVIDE FOR THE PLACEMENT OF THE CHILD PENDING FINAL RELIEF.
S. 4138--A 15
1 4. THE RESPONDENT MUST BE SERVED WITH THE PETITION, WARRANT, AND ORDER
2 IMMEDIATELY AFTER THE CHILD IS TAKEN INTO PHYSICAL CUSTODY.
3 5. A WARRANT TO TAKE PHYSICAL CUSTODY OF A CHILD IS ENFORCEABLE
4 THROUGHOUT THIS STATE. IF THE COURT FINDS ON THE BASIS OF THE TESTIMONY
5 OF THE PETITIONER OR OTHER WITNESS THAT A LESS INTRUSIVE REMEDY IS NOT
6 EFFECTIVE, IT MAY AUTHORIZE LAW ENFORCEMENT OFFICERS TO ENTER PRIVATE
7 PROPERTY TO TAKE PHYSICAL CUSTODY OF THE CHILD. IF REQUIRED BY EXIGENT
8 CIRCUMSTANCES OF THE CASE, THE COURT MAY AUTHORIZE LAW ENFORCEMENT OFFI-
9 CERS TO MAKE A FORCIBLE ENTRY AT ANY HOUR.
10 6. THE COURT MAY IMPOSE CONDITIONS UPON PLACEMENT OF A CHILD TO ENSURE
11 THE APPEARANCE OF THE CHILD AND THE CHILD`S CUSTODIAN.
12 S 77-K. COSTS, FEES AND EXPENSES. 1. THE COURT SHALL AWARD THE
13 PREVAILING PARTY, INCLUDING A STATE, NECESSARY AND REASONABLE EXPENSES
14 INCURRED BY OR ON BEHALF OF THE PARTY, INCLUDING COSTS, COMMUNICATION
15 EXPENSES, ATTORNEY`S FEES, INVESTIGATIVE FEES, EXPENSES FOR WITNESSES,
16 TRAVEL EXPENSES, AND CHILD CARE DURING THE COURSE OF THE PROCEEDINGS,
17 UNLESS THE PARTY FROM WHOM FEES OR EXPENSES ARE SOUGHT ESTABLISHES THAT
18 THE AWARD WOULD BE INAPPROPRIATE. NO FEES, COSTS OR EXPENSES SHALL BE
19 ASSESSED AGAINST A PARTY WHO IS FLEEING AN INCIDENT OR PATTERN OF DOMES-
20 TIC VIOLENCE UNLESS THE COURT IS CONVINCED BY A PREPONDERANCE OF
21 EVIDENCE THAT SUCH ASSESSMENT WOULD BE CLEARLY APPROPRIATE.
22 2. THE COURT MAY NOT ASSESS FEES, COSTS, OR EXPENSES AGAINST A STATE
23 UNLESS AUTHORIZED BY LAW OTHER THAN THIS ARTICLE.
24 S 77-L. RECOGNITION AND ENFORCEMENT. A COURT OF THIS STATE SHALL
25 ACCORD FULL FAITH AND CREDIT TO AN ORDER ISSUED BY ANOTHER STATE AND
26 CONSISTENT WITH THIS ARTICLE WHICH ENFORCES A CHILD CUSTODY DETERMI-
27 NATION BY A COURT OF ANOTHER STATE UNLESS THE ORDER HAS BEEN VACATED,
28 STAYED, OR MODIFIED BY A COURT HAVING JURISDICTION TO DO SO UNDER TITLE
29 TWO OF THIS ARTICLE.
30 S 77-M. APPEALS. AN APPEAL MAY BE TAKEN FROM A FINAL ORDER IN A
31 PROCEEDING UNDER THIS TITLE IN ACCORDANCE WITH ARTICLE FIFTY-FIVE OF THE
32 CIVIL PRACTICE LAW AND RULES AND ARTICLE ELEVEN OF THE FAMILY COURT ACT
33 AND MAY BE GRANTED A PREFERENCE IN THE DISCRETION OF THE COURT TO WHICH
34 THE APPEAL IS TAKEN. UNLESS THE COURT ENTERS A TEMPORARY EMERGENCY ORDER
35 UNDER SECTION SEVENTY-SIX-C OF THIS ARTICLE, THE ENFORCING COURT MAY NOT
36 STAY AN ORDER ENFORCING A CHILD CUSTODY DETERMINATION PENDING APPEAL.
37 S 77-N. ROLE OF PROSECUTOR OR PUBLIC OFFICIAL. 1. IN A CASE ARISING
38 UNDER THIS ARTICLE OR INVOLVING THE HAGUE CONVENTION ON THE CIVIL
39 ASPECTS OF INTERNATIONAL CHILD ABDUCTION, THE PROSECUTOR OR OTHER APPRO-
40 PRIATE PUBLIC OFFICIAL MAY TAKE ANY LAWFUL ACTION, INCLUDING RESORT TO A
41 PROCEEDING UNDER THIS TITLE OR ANY OTHER AVAILABLE CIVIL PROCEEDING TO
42 LOCATE A CHILD, OBTAIN THE RETURN OF A CHILD, OR ENFORCE A CHILD CUSTODY
43 DETERMINATION IF THERE IS:
44 (A) AN EXISTING CHILD CUSTODY DETERMINATION;
45 (B) A REQUEST TO DO SO FROM A COURT IN A PENDING CHILD CUSTODY
46 PROCEEDING;
47 (C) A REASONABLE BELIEF THAT A CRIMINAL STATUTE HAS BEEN VIOLATED; OR
48 (D) A REASONABLE BELIEF THAT THE CHILD HAS BEEN WRONGFULLY REMOVED OR
49 RETAINED IN VIOLATION OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF
50 INTERNATIONAL CHILD ABDUCTION.
51 2. A PROSECUTOR OR APPROPRIATE PUBLIC OFFICIAL ACTING UNDER THIS
52 SECTION ACTS ON BEHALF OF THE COURT AND MAY NOT REPRESENT ANY PARTY.
53 S 77-O. ROLE OF LAW ENFORCEMENT. AT THE REQUEST OF A PROSECUTOR OR
54 OTHER APPROPRIATE PUBLIC OFFICIAL ACTING UNDER SECTION SEVENTY-SEVEN-N
55 OF THIS TITLE, A LAW ENFORCEMENT OFFICER MAY TAKE ANY LAWFUL ACTION
56 REASONABLY NECESSARY TO LOCATE A CHILD OR A PARTY AND ASSIST A PROSECU-
S. 4138--A 16
1 TOR OR APPROPRIATE PUBLIC OFFICIAL WITH RESPONSIBILITIES UNDER SECTION
2 SEVENTY-SEVEN-N OF THIS TITLE.
3 S 77-P. COSTS AND EXPENSES. IF THE RESPONDENT IS NOT THE PREVAILING
4 PARTY, THE COURT MAY ASSESS AGAINST THE RESPONDENT ALL DIRECT EXPENSES
5 AND COSTS INCURRED BY THE PROSECUTOR OR OTHER APPROPRIATE PUBLIC OFFI-
6 CIAL AND LAW ENFORCEMENT OFFICERS UNDER SECTION SEVENTY-SEVEN-N OR
7 SEVENTY-SEVEN-O OF THIS TITLE.
8 TITLE 4
9 MISCELLANEOUS PROVISIONS
10 SECTION 78. APPLICATION AND CONSTRUCTION.
11 78-A. SEVERABILITY CLAUSE.
12 S 78. APPLICATION AND CONSTRUCTION. IN APPLYING AND CONSTRUING THIS
13 ARTICLE, CONSIDERATION MUST BE GIVEN TO THE NEED TO PROMOTE UNIFORMITY
14 OF THE LAW WITH RESPECT TO ITS SUBJECT MATTER AMONG STATES THAT ENACT
15 IT.
16 S 78-A. SEVERABILITY CLAUSE. IF ANY PROVISION OF THIS ARTICLE OR ITS
17 APPLICATION TO ANY PERSON OR CIRCUMSTANCE IS HELD INVALID, THE INVALIDI-
18 TY DOES NOT AFFECT OTHER PROVISIONS OR APPLICATIONS OF THIS ARTICLE
19 WHICH CAN BE GIVEN EFFECT WITHOUT THE INVALID PROVISION OR APPLICATION,
20 AND TO THIS END THE PROVISIONS OF THIS ARTICLE ARE SEVERABLE.
21 S 2. This act shall take effect 180 days after it shall have become a
22 law and shall apply to all actions and proceedings commenced on or after
23 such date; provided, however, that a motion or other request for relief
24 made in a child custody proceeding or to enforce a child custody deter-
25 mination which was commenced before the effective date of this act is
26 governed by the law in effect at the time the motion or other request
27 was made.
.SO DOC S 4138A *END* BTXT 1999
Bill S04138
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