Brief ⁽¹⁾

SB 382 enacts the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), as drafted by the National Conference of Commissioners on Uniform State Laws. The bill revises the 1968 Uniform Child Custody Jurisdiction Act (UCCJA) which was adopted in Kansas in 1978, effective January 1, 1979.

Briefly, SB 382 establishes home state priority, clarifies emergency jurisdiction, establishes exclusive continuing jurisdiction for the state that entered the decree, and specifies what custody proceedings are covered.

The act may be cited as the Uniform Child-Custody Jurisdiction and Enforcement Act.

The following is an explanation of the bill.

Application. This act does not apply to adoption or emergency medical care proceedings nor does the act apply to Indian children to the extent that they are covered by the Indian Child Welfare Act.

The bill provides that the state court is to consider a foreign country as if it were a state for most purposes. A child-custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of SB 382 shall be recognized and enforced.

A child-custody determination made by a Kansas court that had jurisdiction under this act binds all persons who have been served in accordance with the laws of this state or notified as otherwise provided, or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard.

A question of child-custody jurisdiction under this act shall be given priority on the court calendar, upon the request of a party.

Notice to Persons Outside the State. Notice and proof of service may be given as provided by law in Kansas or by the state law in which the service is made.

Appearance and Limited Immunity. A party to a child-custody proceeding is not subject to personal jurisdiction in Kansas for another proceeding.

Communication Between Courts-Taking Testimony. Kansas courts may communicate with courts in other states concerning proceedings arising under this act. The courts may allow the parties to participate in the communications.

A party to a child-custody proceeding may offer testimony of witnesses who are located in another state by deposition. The Kansas court may permit an out-of-state person to be deposed or testify by telephone, audiovisual means, or other electronic means.

Cooperation Between Courts; Preservation of Records. The Kansas court may request the court of another state to hold an evidentiary hearing, order a person to produce evidence, order an evaluation, forward a copy of the court transcript, and order a party to appear. Necessary and reasonable expenses may be assessed against the parties. The Kansas court shall preserve the records of the proceedings until the child reaches 18.

Kansas Jurisdiction. The Kansas court has jurisdiction to make an initial child-custody determination only if:

1. Kansas is the home state of the child;



2. A court of another state does not have jurisdiction, and

1. the child and the child's parents have significant contact with Kansas, other than mere physical presence; and
2. substantial evidence is available in Kansas concerning the child's care, protection, training, and personal relationships;



1. All courts have declined jurisdiction on the grounds that Kansas is the more appropriate forum; or



2. No court of any other state would have jurisdiction under paragraphs 1, 2, or 3.

A Kansas court which has jurisdiction may decline to exercise its jurisdiction if it determines that it is an inconvenient forum and that the court of another state is a more appropriate forum.

If a Kansas court has jurisdiction because a person seeking to invoke jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise jurisdiction unless:

1. The parents have acquiesced to jurisdiction.



2. A court of the state otherwise having jurisdiction determines that Kansas is a more appropriate forum.



3. No court of any other state would have jurisdiction.

A Kansas court which has made a child-custody determination has exclusive, continuing jurisdiction over the determination until there is no longer significant contact with Kansas or the child and the child's parents do not presently reside in Kansas.

Modification of Child Custody. A Kansas court may not modify a child-custody determination made by another state court unless the Kansas court has jurisdiction to make the initial determination and another state court determines it no longer has exclusive continuing jurisdiction or the child and the child's parents do not presently reside in the other state.

Emergency Jurisdiction. The Kansas court has temporary emergency jurisdiction if the child is present in Kansas and has been abandoned or it is necessary to protect the child from abuse. If there is no previous child-custody determination and a child-custody determination has not been commenced in a court having jurisdiction, the child-custody temporary emergency determination remains in effect until an order is obtained from the state having jurisdiction.

Simultaneous Proceedings. A Kansas court may not exercise jurisdiction if at the time of the commencement of the proceedings, a child-custody proceeding has been commenced in another state having jurisdiction. Prior to hearing a proceeding, the court shall examine documents and other information to determine whether another proceeding has been commenced. If the court of another state having jurisdiction does not determine that the Kansas court is a more appropriate forum, the Kansas court shall dismiss the proceedings.

Appearance of Parties and Child. The Kansas court may order a party to the proceeding who is in the state to appear before the court in person, with or without the child. If a party whose presence is desired by the court is outside the state, the court may order that notice be given, including a statement directing the party to appear and informing the party that failing to appear may result in a decision adverse to the party.

In a child-custody proceeding, each party shall give information, under oath, as to the child's present address or whereabouts, the places where the child has lived during the last five years, and the names and address of the persons with whom the child has lived during that period.

Enforcement. A Kansas court may enforce an order for the return of a child made under the Hague Convention on the civil aspects of international child abduction as if it were a child-custody determination.

A Kansas court shall recognize and enforce a child-custody determination of another state court if the other state court exercised jurisdiction in substantial conformity with UCCJEA or the determination was made under factual circumstances meeting the jurisdictional standards of UCCJEA and the determination has not been modified. A Kansas court may utilize any remedy available under other Kansas law to enforce a child-custody determination made by another state court.

Temporary Visitation. A Kansas court which does not have jurisdiction to modify a child-custody determination, may issue a temporary order enforcing a visitation schedule.

Registration of Child-Custody Determination. A child-custody determination issued by another state court may be registered in Kansas, with or without a request for enforcement, by sending certain documents and information to the district court.

On receipt of the documents, the registering court shall cause the determination to be filed as a foreign judgment and serve notice upon named person to provide them with an opportunity to contest the registration.

A Kansas court may grant any relief normally available under Kansas law to enforce a registered child-custody determination made by a court of another state. A Kansas court shall recognize and enforce, but may not modify, except in accordance with sections 13 through 22, a registered child-custody determination of a court of another state.

Expedited Enforcement of Child-Custody Determination. An enforcement petition must be verified. The enforcement petition must state:

1. Whether the court issuing the determination identified the jurisdictional basis it relied upon in exercising jurisdiction, and if so, what basis;



2. Whether the determination for which enforcement is sought has been vacated/stayed/modified by a court whose decision must be enforced under UCCJEA, and if so, the identifying information;



3. Whether any proceeding has been commenced that could affect the current proceeding;



4. The present physical address of the child and respondent, if known.



5. Whether relief in addition to the immediate physical custody of the child and attorney fees is sought; and



6. If the child-custody determination has been registered and confirmed.

Upon filing the enforcement petition, the court shall issue an order directing the respondent to appear in person with or without the child at the hearing and may enter any order necessary to ensure the safety of the parties and the child. The order must state the time and place of the hearing.

Upon a finding that the a petitioner is entitled to immediate physical custody of the child, the court shall order that the petitioner may take immediate physical custody of the child unless the respondent establishes that:

1. The child-custody determination has not been registered and confirmed, and the issuing court did not have jurisdiction, the child-custody determination for which enforcement is sought has been vacated/stayed/modified or the respondent was entitled to notice, but notice was not given in accordance with the standards; or



2. The child-custody determination for which enforcement is sought was registered and confirmed but has been vacated/stayed/modified.

The court shall award fees, costs, and expenses.

Upon filing of a petition seeking enforcement of a child-custody determination, the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child if the child is immediately likely to suffer physical harm or be removed from Kansas. If the court finds that the child is imminently likely to suffer physical harm or be removed from Kansas, the court may issue a warrant to take physical custody of the child. A warrant to take physical custody of a child is enforceable throughout Kansas.

The court shall award the prevailing party, including the state necessary and reasonable expenses incurred by or on behalf of the party.

The Kansas court shall accord full faith and credit to an order issued by another state and consistent with the UCCJEA which enforces a child-custody determination by another state court unless the order has been vacated/stayed/modified by the court having jurisdiction.

Role of Prosecutor. In a case arising under the UCCJEA or the Hague Convention, on the civil aspects of international child abduction, the prosecutor may take any lawful action available in civil proceedings to locate a child, obtain the return of a child or enforce the child-custody determination if there is:

1. An existing child-custody determination;



2. A request to do so from a court in a pending child-custody proceeding;



3. A reasonable belief that a criminal statute has been violated; or



4. A reasonable belief that the child has been wrongfully removed in violation of the Hague Convention.

Role of Law Enforcement. At the request of the prosecutor, a law enforcement officer may take any lawful action reasonably necessary to locate a child or assist the prosecutor.

Other Child Custody Laws. SB 382 also amends sections of the Kansas Parentage Act, the Child in Need of Care Code, the adoption code, the guardianship law, the divorce code, and the Protection From Abuse Act to require petitions under the various laws contain certain information required under Section 21, which among other thing, requires disclosure of other proceedings dealing with visitation or custody.

Background

SB 382 was recommended by the 1999 Special Committee on Judiciary. The bill was recommended by the Family Law Section of the Kansas Bar Association. A proponent said the revisions take into account the federal Parental Kidnapping Prevention Act (PKPA), 1980, 28 USC 1783A, and 30 years of inconsistent case law.

Uniform acts no longer contain a purpose section, although the comments to section 1 state the act's purpose is to:

1. Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being.



2. Promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child.



3. Discourage the use of the interstate system for continuing controversies over child custody.



4. Deter abductions of children.



5. Avoid relitigation of custody decisions of other states in this state.



6. Facilitate the enforcement of custody decrees of other states.

The bill was opposed by a spokesperson for the Topeka Chapter of the National Congress for Fathers and Children.

1. *Supplemental notes are prepared by the Legislative Research Department and do not express legislative intent. The supplemental note and fiscal note for this bill may be accessed on the Internet at http://www.ink.org/public/legislative/bill_search.html