Duty To Enforce Under the UCCJEA

The UCCJEA requires State courts to recognize and enforce child-custody determinations made in substantial conformity with the jurisdictional provisions of the Act or made under factual circumstances that meet the jurisdictional standards of the Act.⁶² This basic duty to enforce is the same as that in the UCCJA; however, a custody order is enforceable under the UCCJEA only if the issuing court exercised jurisdiction in conformity with the UCCJEA.

In addition to establishing a duty to enforce sister States' custody and visitation orders, the UCCJEA creates five new interstate enforcement mechanisms. These mechanisms, each described in this section, supplement any other enforcement procedures available under State law.

Registration of an out-of-State custody determination. The UCCJEA creates a process for registering out-of-State custody and visitation orders.⁶³ Parents and other parties are not required to register a custody or visitation determination but may choose to do so for the following reasons:

• Registration puts the courts of a State on notice of an existing custody determination and of the issuing court's exclusive, continuing jurisdiction.

• Registration is a pretest of enforceability; that is, it can be used to obtain assurance that the custody determination will be enforced in the future.⁶⁴

• Registration limits possible defenses to enforcement at a later date, which simplifies and expedites subsequent enforcement efforts.

• Uncontested registration may obviate the need for lawyers in a case, which would be a great benefit to parents who cannot afford counsel.

• A registered order is enforceable as if it were a local order as of the date of registration.

The process for registering out-of-State custody determinations is straightforward. A party sends a request for registration to a court in another State, along with copies of the child-custody determination and other required information. The court files the order as a foreign judgment and serves notice on the parent (or person acting as a parent) who has been awarded custody or visitation in the order. Persons who receive notice have 20 days to request a hearing to contest the validity of the order. If no such request is made, the order is confirmed as a matter of law and may be enforced as if it were a local order.

If the registration is contested, only three defenses are available:

• That the court making the custody determination lacked jurisdiction.

• That the person contesting registration was entitled to but did not receive notice of the underlying custody proceeding in accordance with the UCCJEA.

• That the child-custody determination has been vacated, stayed, or modified.

The UCCJEA's registration process differs from the UCCJA provision requiring clerks of court to maintain a registry for filing out-of-State decrees. The UCCJA's registry provision was omitted from the UCCJEA.⁶⁵

Temporary visitation orders. Under the UCCJEA, courts may issue temporary orders to enforce visitation schedules in other States' court orders or visitation provisions of out-of-State orders that do not contain a specific schedule.⁶⁶ For instance, courts may order compensatory visitation time or give specific meaning to another State's award of "reasonable visitation."

Although this section gives judges the authority to issue temporary orders to facilitate visitation that might not otherwise occur, it does not confer modification jurisdiction to make wholesale changes to sister States' orders. Consistent with the UCCJEA and the PKPA, permanent changes to the underlying custody order may be made only by the court with modification jurisdiction, unless that State declines to exercise jurisdiction.

Expedited enforcement of custody determinations. Sections 308�310 of the UCCJEA create a new enforcement remedy, the object of which is the immediate recovery of a child.⁶⁷ It is fast and summary in nature. If there is a risk of serious physical harm or abduction, this remedy may be used in concert with a warrant to take physical custody of a child (UCCJEA section 311).

The UCCJEA's expedited enforcement sections provide for an enforcement hearing, normally within 24 hours of service (i.e., on the next judicial day after service). If that date is impossible, the hearing must be held on the first judicial day possible. In other words, this is a priority proceeding on the fastest track available.

At the hearing, the respondent has limited defenses, the availability of which depends on whether the order has been registered. If so, the only available defense is that the order has since been vacated, stayed, or modified. If the custody order has not been registered, the respondent may assert the three defenses that could have been raised in a registration proceeding: (1) lack of jurisdiction in the issuing court; (2) the underlying custody order has been vacated, stayed, or modified; and (3) lack of notice.

At the conclusion of the hearing, unless the respondent has established a defense, the court must issue an order authorizing the petitioner to take immediate physical custody of the child. Pursuant to section 312, the court must also order the respondent to pay the petitioner's necessary and reasonable expenses⁶⁸ unless the respondent shows that such award would be clearly inappropriate. (If the respondent had prevailed, the court would assess the petitioner with costs and expenses because section 312 expressly provides for an award to the "prevailing party.") The return order may also include a directive for law enforcement assistance.

Warrants to take physical custody of a child. The UCCJEA also includes a procedure to ensure a child's safety and presence in the jurisdiction when notice of an enforcement proceeding might cause the recipient to harm or flee with the child.⁶⁹ On a finding that a "child is imminently likely to suffer serious physical harm or be removed from the State," section 311 specifically authorizes a court to issue a warrant directing law enforcement officers to take immediate physical custody of the child.

Warrants to take physical custody of a child (also known as "pickup" orders) are obtained under the UCCJEA in conjunction with an enforcement action. The petitioner files a verified application to obtain a warrant to take physical custody of the child upon filing an enforcement action. The court must take testimony from the petitioner or another witness. The testimony may be taken by phone, in person, or by any other means allowed under local law. If the court finds that the child is imminently likely to suffer serious physical harm or be removed from the State, the court may issue a warrant to take physical custody of the child. The warrant must direct law enforcement officers to pick up the child immediately, and it must provide for the child's placement pending the enforcement hearing. The respondent must be served with the petition, warrant, and order immediately after the warrant is executed (i.e., after the child is picked up), and the enforcement petition must be heard on the next judicial day unless that date is impossible.

This remedy may be especially helpful in preventing international abductions. The ICARA contemplates that courts hearing Hague Convention cases may take measures under State and Federal law to protect the well-being of a child or to prevent further removal or concealment before final disposition of the petition. Section 311 of the UCCJEA provides the authority to do so.

Public enforcement provisions. Sections 315�317 of the UCCJEA provide a mechanism for enforcing custody and visitation orders⁷⁰ that is modeled on a system that has functioned remarkably well in California for more than 20 years with wide support from the criminal justice community. (See "The Role of Prosecutors and Law Enforcement in Civil Custody Enforcement: California's Experience")

State legislatures may designate any public officials they deem appropriate to implement sections 315 and 316. Although most States will select prosecutors and law enforcement, legislatures may designate other public officials, such as a "Friend of the Court." California's experience exemplifies the advantages of allowing district attorneys, criminal investigators, and other law enforcement officers to play an active part in civil enforcement of custody determinations. The following explanation of sections 315�317 assumes that State legislatures have designated prosecutors and law enforcement officers to exercise the new discretionary powers.

Section 315(a) of the UCCJEA gives prosecutors statutory authority to take any lawful action�including instituting a proceeding under article 3 or any other available civil proceeding�to locate a child, facilitate a child's return, or enforce a child-custody determination. Any actions taken by the prosecutor are done on behalf of the court. The prosecutor does not represent any party.

The prosecutor may act if one of the following exists:

• A prior custody determination.

• A request from a court in a pending child-custody proceeding.

• A reasonable belief that a criminal statute has been violated.

• A reasonable belief that a child has been wrongfully removed or retained in violation of the Hague Convention.

Under section 315, prosecutors may request the assistance of law enforcement officers, and section 316 expressly authorizes them to respond to such a request.⁷¹ Under section 317, prosecutors and law enforcement agencies may recover their direct costs and expenses from a nonprevailing party.

The authority granted under these sections is discretionary, meaning that prosecutors may elect to use their new civil authority to resolve custody and visitation interference cases but are not required to do so. For example, a prosecutor may opt for civil remedies under the UCCJEA when this approach would best serve the child and family. Compared with criminal proceedings, civil proceedings tend to be less traumatic for children. In all cases, prosecutors may choose, under State criminal law, to prosecute the perpetrator-parent if prosecution is in the interest of justice. Civil and criminal remedies may be pursued simultaneously in some circumstances. In short, the UCCJEA adds civil remedies to the tools prosecutors already have under criminal statutes but allows prosecutors to choose how to proceed in parental kidnapping cases.

Sections 315�317 offer potential advantages to prosecutors, children, and parents. Specifically, the provisions may:

• Deter abductions and encourage citizens to respect the terms of court orders.

• Deter self-help recoveries ("reabductions"), which can be harmful to children and may have civil or criminal consequences for parents.

• Create an interstate network of reciprocal assistance to resolve custodial interference cases. This network should result in faster resolution of many interstate custody and visitation disputes, thereby sparing children the trauma of protracted custody litigation, reducing litigation costs for parents, and limiting more costly prosecutions by allowing prosecutors to pursue civil remedies.

• Give prosecutors the authority to assist with civil enforcement, thereby providing custodial parents of limited financial ability lawful means by which to secure return of their children.

• Involve public authorities in handling international child-custody and visitation disputes under the Hague Convention. Their involvement should improve the United States' standing with treaty partners—many of whom now provide free legal assistance to U.S. citizens seeking return of their children from abroad—and may foster the return of more children who have been abducted from this country.

• Give the criminal justice community the option of using civil remedies in interstate and international custody and abduction cases, while leaving the door open to prosecute the abducting parent when circumstances warrant. This leeway should facilitate resolution of these difficult cases in the best interests of children and society.

The Uniform Child-Custody Jurisdiction and Enforcement Act	Juvenile Justice Bulletin • December 2001