HF 1133

as introduced - 86th Legislature (2009 - 2010) Posted on 02/09/2010 01:44am

A bill for an act
relating to crime; providing for the Uniform Child Abduction Prevention Act;
proposing coding for new law as Minnesota Statutes, chapter 518E.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [518E.101] SHORT TITLE.
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new text begin This chapter may be cited as the Uniform Child Abduction Prevention Act.
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Sec. 2.

new text begin [518E.102] DEFINITIONS.
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new text begin (a) For the purposes of this chapter, the terms in this section have the meanings
given them.
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new text begin (b) "Abduction" means the wrongful removal or wrongful retention of a child.
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new text begin (c) "Child" means an unemancipated individual who is less than 18 years of age.
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new text begin (d) "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.
The term includes a permanent, temporary, initial, and modification order.
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new text begin (e) "Child-custody proceeding" means a proceeding in which legal custody, physical
custody, or visitation with respect to a child is at issue. The term includes a proceeding for
divorce, dissolution of marriage, separation, neglect, abuse, dependency, guardianship,
paternity, termination of parental rights, or protection from domestic violence.
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new text begin (f) "Court" means an entity authorized under the law of a state to establish, enforce,
or modify a child-custody determination.
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new text begin (g) "Petition" includes a motion or its equivalent.
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new text begin (h) "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.
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new text begin (i) "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. The term includes a federally recognized Indian
tribe or nation.
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new text begin (j) "Travel document" means records relating to a travel itinerary, including travel
tickets, passes, reservations for transportation, or accommodations. The term does not
include a passport or visa.
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new text begin (k) "Wrongful removal" means the taking of a child that breaches rights of custody
or visitation given or recognized under the law of this state.
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new text begin (l) "Wrongful retention" means the keeping or concealing of a child that breaches
rights of custody or visitation given or recognized under the law of this state.
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Sec. 3.

new text begin [518E.103] COOPERATION AND COMMUNICATION AMONG
COURTS.
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new text begin Sections 518D.110, 518D.111, and 518D.112 apply to cooperation and
communications among courts in proceedings under this chapter.
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Sec. 4.

new text begin [518E.104] ACTIONS FOR ABDUCTION PREVENTION MEASURES.
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new text begin (a) 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.
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new text begin (b) 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 chapter.
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new text begin (c) A prosecutor or public authority designated under section 518D.315 may seek a
warrant to take physical custody of a child under section 518E.109 or other appropriate
prevention measures.
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Sec. 5.

new text begin [518E.105] JURISDICTION.
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new text begin (a) A petition under this chapter may be filed only in a court that has jurisdiction to
make a child-custody determination with respect to the child at issue under chapter 518D.
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new text begin (b) A court of this state has temporary emergency jurisdiction under section
518D.204 if the court finds a credible risk of abduction.
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Sec. 6.

new text begin [518E.106] CONTENTS OF PETITION.
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new text begin A petition under this chapter must be verified and include a copy of any existing
child-custody determination, if available. The petition must specify the risk factors for
abduction, including the relevant factors described in section 518E.107. Subject to section
518D.209, paragraph (e), if reasonably ascertainable, the petition must contain:
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new text begin (1) the name, date of birth, and gender of the child;
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new text begin (2) the customary address and current physical location of the child;
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new text begin (3) the identity, customary address, and current physical location of the respondent;
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new text begin (4) 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;
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new text begin (5) 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; and
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new text begin (6) any other information required to be submitted to the court for a child-custody
determination under section 518D.209.
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Sec. 7.

new text begin [518E.107] FACTORS TO DETERMINE RISK OF ABDUCTION.
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new text begin (a) In determining whether there is a credible risk of abduction of a child, the court
shall consider any evidence that the petitioner or respondent:
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new text begin (1) has previously abducted or attempted to abduct the child;
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new text begin (2) has threatened to abduct the child;
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new text begin (3) has recently engaged in activities that may indicate a planned abduction,
including:
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new text begin (i) abandoning employment;
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new text begin (ii) selling a primary residence;
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new text begin (iii) terminating a lease;
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new text begin (iv) closing bank or other financial management accounts, liquidating assets, hiding
or destroying financial documents, or conducting any unusual financial activities;
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new text begin (v) applying for a passport or visa or obtaining travel documents for the respondent,
a family member, or the child; or
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new text begin (vi) seeking to obtain the child's birth certificate or school or medical records;
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new text begin (4) has engaged in domestic violence, stalking, or child abuse or neglect;
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new text begin (5) has refused to follow a child-custody determination;
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new text begin (6) lacks strong familial, financial, emotional, or cultural ties to the state or the
United States;
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new text begin (7) has strong familial, financial, emotional, or cultural ties to another state or
country;
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new text begin (8) is likely to take the child to a country that:
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new text begin (i) 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;
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new text begin (ii) is a party to the Hague Convention on the Civil Aspects of International Child
Abduction but:
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new text begin (A) the Hague Convention on the Civil Aspects of International Child Abduction is
not in force between the United States and that country;
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new text begin (B) is noncompliant according to the most recent compliance report issued by the
United States Department of State; or
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new text begin (C) lacks legal mechanisms for immediately and effectively enforcing a return order
under the Hague Convention on the Civil Aspects of International Child Abduction;
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new text begin (iii) 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;
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new text begin (iv) has laws or practices that would:
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new text begin (A) enable the respondent, without due cause, to prevent the petitioner from
contacting the child;
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new text begin (B) restrict the petitioner from freely traveling to or exiting from the country because
of the petitioner's gender, nationality, marital status, or religion; or
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new text begin (C) restrict the child's ability legally to leave the country after the child reaches the
age of majority because of a child's gender, nationality, or religion;
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new text begin (v) is included by the United States Department of State on a current list of state
sponsors of terrorism;
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new text begin (vi) does not have an official United States diplomatic presence in the country; or
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new text begin (vii) is engaged in active military action or war, including a civil war, to which
the child may be exposed;
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new text begin (9) is undergoing a change in immigration or citizenship status that would adversely
affect the respondent's ability to remain in the United States legally;
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new text begin (10) has had an application for United States citizenship denied;
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new text begin (11) 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's license, or other government-issued identification card or
has made a misrepresentation to the United States government;
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new text begin (12) has used multiple names to attempt to mislead or defraud; or
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new text begin (13) has engaged in any other conduct the court considers relevant to the risk
of abduction.
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new text begin (b) In the hearing on a petition under this chapter, the court shall consider any
evidence that the respondent believed in good faith that the respondent's conduct was
necessary to avoid imminent harm to the child or respondent and any other evidence that
may be relevant to whether the respondent may be permitted to remove or retain the child.
new text end

Sec. 8.

new text begin [518E.108] PROVISIONS AND MEASURES TO PREVENT
ABDUCTION.
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new text begin (a) If a petition is filed under this chapter, the court may enter an order that must
include:
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new text begin (1) the basis for the court's exercise of jurisdiction;
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new text begin (2) the manner in which notice and opportunity to be heard were given to the persons
entitled to notice of the proceeding;
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new text begin (3) a detailed description of each party's custody and visitation rights and residential
arrangements for the child;
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new text begin (4) a provision stating that a violation of the order may subject the party in violation
to civil and criminal penalties; and
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new text begin (5) identification of the child's country of habitual residence at the time of the
issuance of the order.
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new text begin (b) If, at a hearing on a petition under this chapter 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 must include the provisions
required by paragraph (a) and measures and conditions, including those in paragraphs
(c), (d), and (e), that are reasonably calculated to prevent abduction of the child, giving
due consideration to the custody and visitation rights of the parties. The court shall
consider the age of the child, the potential harm to the child from an abduction, the legal
and practical difficulties of returning the child to the jurisdiction if abducted, and the
reasons for the potential abduction, including evidence of domestic violence, stalking,
or child abuse or neglect.
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new text begin (c) An abduction prevention order may include one or more of the following:
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new text begin (1) an imposition of travel restrictions that require that a party traveling with the
child outside a designated geographical area provide the other party with the following:
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new text begin (i) the travel itinerary of the child;
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new text begin (ii) a list of physical addresses and telephone numbers at which the child can be
reached at specified times; and
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new text begin (iii) copies of all travel documents;
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new text begin (2) a prohibition of the respondent directly or indirectly:
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new text begin (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;
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new text begin (ii) removing or retaining the child in violation of a child-custody determination;
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new text begin (iii) removing the child from school or a child care or similar facility; or
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new text begin (iv) approaching the child at any location other than a site designated for supervised
visitation;
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new text begin (3) a requirement that a party register the order in another state as a prerequisite to
allowing the child to travel to that state;
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new text begin (4) with regard to the child's passport:
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new text begin (i) a direction that the petitioner place the child's name in the United States
Department of State's Child Passport Issuance Alert Program;
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new text begin (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; and
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new text begin (iii) a prohibition upon the respondent from applying on behalf of the child for a new
or replacement passport or visa;
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new text begin (5) as a prerequisite to exercising custody or visitation, a requirement that the
respondent provide:
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new text begin (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;
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new text begin (ii) to the court:
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new text begin (A) proof that the respondent has provided the information in item (i); and
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new text begin (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;
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new text begin (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 one of the parties objects; and
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new text begin (iv) a written waiver under the Privacy Act, United States Code, title 5, section 552a,
as amended, with respect to any document, application, or other information pertaining to
the child authorizing its disclosure to the court and the petitioner; and
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new text begin (6) upon 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.
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new text begin (d) In an abduction prevention order, the court may impose conditions on the
exercise of custody or visitation that:
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new text begin (1) 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;
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new text begin (2) 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; and
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new text begin (3) require the respondent to obtain education on the potentially harmful effects to
the child from abduction.
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new text begin (e) To prevent imminent abduction of a child, a court may:
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new text begin (1) issue a warrant to take physical custody of the child under section 518E.109 or
the law of this state other than this chapter;
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new text begin (2) 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
chapter or the law of this state other than this chapter; or
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new text begin (3) grant any other relief allowed under the law of this state other than this chapter.
new text end

new text begin (f) The remedies provided in this chapter are cumulative and do not affect the
availability of other remedies to prevent abduction.
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Sec. 9.

new text begin [518E.109] WARRANT TO TAKE PHYSICAL CUSTODY OF CHILD.
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new text begin (a) If a petition under this chapter contains allegations, 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.
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new text begin (b) The respondent on a petition under paragraph (a) must 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. In that event, the
court shall hold the hearing on the first judicial day possible.
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new text begin (c) An ex parte warrant under paragraph (a) to take physical custody of a child must:
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new text begin (1) recite the facts upon which a determination of a credible risk of imminent
wrongful removal of the child is based;
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new text begin (2) direct law enforcement officers to take physical custody of the child immediately;
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new text begin (3) state the date and time for the hearing on the petition; and
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new text begin (4) provide for the safe interim placement of the child pending further order of
the court.
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new text begin (d) If feasible, before issuing a warrant 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.
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new text begin (e) The petition and warrant must be served on the respondent when or immediately
after the child is taken into physical custody.
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new text begin (f) 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.
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new text begin (g) If the court finds, after a hearing, that a petitioner sought an ex parte warrant
under paragraph (a) for the purpose of harassment or in bad faith, the court may award the
respondent reasonable attorney fees, costs, and expenses.
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new text begin (h) This chapter does not affect the availability of relief allowed under the law of
this state other than this chapter.
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Sec. 10.

new text begin [518E.110] DURATION OF ABDUCTION PREVENTION ORDER.
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new text begin An abduction prevention order remains in effect until the earliest of:
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new text begin (1) the time stated in the order;
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new text begin (2) the emancipation of the child;
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new text begin (3) the child attaining 18 years of age; or
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new text begin (4) the time the order is modified, revoked, vacated, or superseded by a court with
jurisdiction under sections 518D.201 to 518D.203 and applicable law of this state.
new text end

Sec. 11.

new text begin [518E.111] UNIFORMITY OF APPLICATION AND CONSTRUCTION.
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new text begin In applying and construing this chapter, consideration must be given to the need to
promote uniformity of the law with respect to its subject matter among states that enact it.
new text end

Sec. 12.

new text begin [518E.112] RELATION TO ELECTRONIC SIGNATURES IN GLOBAL
AND NATIONAL COMMERCE ACT.
new text end

new text begin This chapter modifies, limits, and supersedes the federal Electronic Signatures in
Global and National Commerce Act, United States Code, title 15, section 7001, et seq., but
does not modify, limit, or supersede section 101(c) of the act, United States Code, title 15,
section 7001(c), or authorize electronic delivery of any of the notices described in section
103(b) of that act, United States Code, title 15, section 7003(b).
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Sec. 13. new text begin EFFECTIVE DATE.
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new text begin Sections 1 to 12 are effective August 1, 2009.
new text end