Bill Text: MI SB0325 | 2013-2014 | 97th Legislature | Engrossed
Bill Title: Children; abduction; uniform child abduction prevention act; create. Creates new act.
Spectrum: Slight Partisan Bill (Republican 2-1)
Status: (Passed) 2014-12-31 - Assigned Pa 0460'14 With Immediate Effect [SB0325 Detail]
Download: Michigan-2013-SB0325-Engrossed.html
SB-0325, As Passed Senate, September 11, 2013
SENATE BILL No. 325
April 18, 2013, Introduced by Senators JONES, BIEDA and PROOS 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. Child-custody proceeding 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) "Domestic violence" means that term as defined in section
1 of 1978 PA 389, MCL 400.1501.
(g) "Enhanced driver license" and "enhanced official state
personal identification card" mean those terms as defined in
section 2 of the enhanced driver license and enhanced official
state personal identification card act, 2008 PA 23, MCL 28.302.
(h) "Home state" means that term as defined in section 102 of
the uniform child-custody jurisdiction and enforcement act, 2001 PA
195, MCL 722.1102.
(i) "Petition" includes a motion or its equivalent.
(j) "Protection order" means either of the following:
(i) An order entered under section 2950 or 2950a of the revised
judicature act of 1961, 1961 PA 236, MCL 600.2950 and 600.2950a,
under section 6b of chapter V or section 3(2)(o) of chapter XI of
the code of criminal procedure, 1927 PA 175, MCL 765.6b and 771.3,
under section 13a of chapter XIIA of the probate code of 1939, 1939
PA 288, MCL 712a.13a, or under section 36(16) of the corrections
code of 1953, 1953 PA 232, MCL 791.236.
(ii) A foreign protection order as defined in section 2950h of
the revised judicature act of 1961, 1961 PA 236, MCL 600.2950h.
(k) "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.
(l) "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.
(m) "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.
(n) "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.
(o) "Wrongful removal" means the taking of a child that
breaches rights of custody or visitation given or recognized under
the law of this state. Wrongful removal does not include actions
taken to provide for the safety of a party or the child.
(p) "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. Wrongful retention does not
include actions taken to provide for the safety of a party or the
child.
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) Information regarding any protection order previously
entered involving either party or the child.
(g) 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) Except for planning activities related to providing for
the safety of a party or the child while avoiding or attempting to
avoid domestic violence, 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) Applying for or obtaining an enhanced driver license or
enhanced official state personal identification card for the
respondent, a family member, or the child.
(vii) 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) If the court finds during a hearing on a petition under
this act that the respondent's conduct was intended to avoid
domestic violence or imminent harm to the child or the respondent,
the court shall not issue an abduction prevention order.
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 home state or 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 and the safety of the
parties and the child. 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 requirement that the respondent surrender to the court
or the petitioner's attorney his or her enhanced driver license or
enhanced official state personal identification card issued in the
child's name.
(iv) 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).
