ARTICLE 13.5

• Jurisdiction: Colorado

ARTICLE 13.5 Uniform Child Abduction Prevention Act

14-13.5-101. Short title.

14-13.5-102. Definitions.

14-13.5-103. Cooperation and communication among courts.

14-13.5-104. Actions for abduction prevention measures.

14-13.5-105. Jurisdiction.

14-13.5-106. Contents of petition.

14-13.5-107. Factors to determine risk of abduction.

14-13.5-108. Provisions and measures to prevent abduction.

14-13.5-109. Warrant to take physical custody of child.

14-13.5-110. Duration of abduction prevention order.

14-13.5-111. Uniformity of applications and construction.

14-13.5-112. Relation to electronic signatures in global and national commerce act.

PREFATORY NOTE

Child abduction is a serious problem both in scope and effect. A study commissioned by the Office of Juvenile Justice and Delinquency Prevention estimated that 262,100 children were abducted in 1999; 203,900 (78 per cent) of them were abducted by a parent or family member; approximately 1000 of the abductions were international.¹ The purpose of the Uniform Child Abduction Prevention Act is to deter both predecree and postdecree domestic and international child abductions by parents, persons acting on behalf of a parent or others. Family abductions may be preventable through the identification of risk factors and the imposition of appropriate preventive measures.

The Uniform Child Abduction Prevention Act is premised on the general principle that preventing an abduction is in a child's best interests. Abducted children may suffer long- lasting harm. Federal law recognizes that parental abduction is harmful to children.² Child abductions can occur before or after entry of a child-custody determination. This Act allows the court to impose abduction prevention measures at any time.

Many abductions occur before a court has had the opportunity to enter a child-custody determination. Children at the center of custody disputes are at the highest risk for potential abductions.³ Jurisdictional laws help deter abductions by specifying the proper state to handle custody litigation. The Uniform Child Custody Jurisdiction Act⁴ sets out four concurrent bases for jurisdiction. Congress passed the Parental Kidnapping Prevention Act of 1980 to deter abductions, discourage interstate conflicts, and promote cooperation between states about custody matters by resolving jurisdictional conflicts.⁵ The Parental Kidnapping Prevention Act prioritizes the state in which the child has lived for six months preceding the filing of the petition (the home state) as the place for custody litigation⁶ and prohibits a second state from assuming jurisdiction if there is an action pending in the state that has proper jurisdiction.⁷ The Uniform Child Custody Jurisdiction and Enforcement Act,⁸ now in 45 jurisdictions, also prioritizes home state jurisdiction notwithstanding the child's absence. Jurisdictional laws do not provide prevention measures for abduction.

Post-decree abductions often occur because the existing child-custody determinations lack sufficient protective provisions to prevent an abduction. An award of joint physical custody without a designation of specific times; a vague order granting "reasonable visitation"; or the lack any restrictions on custody and visitation make orders hard to enforce. The awareness of abduction risk factors and preventive measures available can reduce the threat of abduction by giving the court the tools to make the initial child-custody determination clearer, more specific, and more easily enforceable.

If an abduction occurs after a child-custody determination, all states have enforcement remedies. Forty-six jurisdictions use the procedures in Article 3 of the Uniform Child Custody Jurisdiction and Enforcement Act. In addition, courts can punish abductors for contempt and allow tort actions for custodial interference. Several federal laws help locate missing children⁹ and criminalize international parental kidnapping.¹⁰ While there is no federal law criminalizing interstate parental kidnapping, there is a mechanism for apprehending persons who violate state parental kidnapping laws and travel across state lines.¹¹ While every state criminally forbids custodial interference by parents or relatives of the child, the laws differ as to the elements of the offenses, the punishments given, and whether a child-custody determination must exist for a violation to occur.¹²

--------

Notes:

^[1] See David Finkelhor, Heather Hammer & Andrea J. Sedlak, National Incidence Studies of Missing, Abducted, Runaway, and Thrownaway Children, Children Abducted by Family Members: National Estimate and Characteristics (Oct. 2002).

^[2] International Child Abduction Remedies Act, 42 U.S.C. § 11601(a)(1)("The Congress makes the following findings: (1) The international abduction or wrongful retention of children is harmful to their well-being . . . "). See also Dorothy S. Huntington, Parental Kidnapping: A New Form of Child Abuse, available at http://www.hiltonhouse.com/articles/child_abuse-huntington.txt (characterizing child abduction as abuse).

^[3] America's Hidden Crime: When the Kidnapper is Kin 10-11 (Polly Klaas Foundation 2004). See also Janet R. Johnston et al., Early Identification of Risk Factors for Parental Abduction (OJJDP March 2001) (indicating that men are more likely to abduct before an order is entered while women are more likely to abduct after a child custody determination).

^[4] 9 Unif. L. Ann. Part I 115 (1988).

^[5] Pub. L. No. 96-611, note 7 to 28 U.S.C. §1738A.

^[6] 28 U.S.C. Section 1738A(c).

^[7] 28 U.S.C.A. Section 1738A(g).

^[8] 9 Unif. L. Ann. Part I 657 (1999).

^[9] Missing Children Act, 28 U.S.C. §534 (1982); Missing Children Search Assistance Act and the National Child Search Assistance Act, 42 U.S.C. § 5779 & § 5780 (1990); and the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003, Pub. L. 108-21, 117 Stat. 650 (AMBER Alert Program).

^[10] See International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C. § 1204; The Fugitive Felon Act, 18 U.S.C. § 1073; and The Extradition Treaties Interpretation Act of 1998, 18 U.S.C. § 3181.

^[11] Unlawful Flight to Avoid Prosecution, 18 U.S.C. § 1204; The Fugitive Felon Act, 18 U.S.C. § 1073. When enacting the Parental Kidnapping Prevention Act, Congress declared that the Unlawful Flight to Avoid Prosecution provision applies to cases involving parental kidnapping and interstate or international flight to avoid prosecution. Pub. L. No. 96-611, 10(a).

^[12] Appendix A. Citation List of State Parental Kidnapping Statutes, National Clearinghouse for the Defense of Battered Women, The Impact of Parental Kidnapping Laws and Practice on Domestic Violence Survivors 32 (2005).

If the abduction is international, the Hague Convention on the Civil Aspects of International Child Abduction, currently in effect between the United States and fifty-five countries, facilitates the return of an abducted child to the child's habitual residence.¹³ Many countries, however, have not ratified the Hague Convention on the Civil Aspects of International Child Abduction, the United States has not accepted all nations' accessions, and some countries that have ratified do not comply with the treaty obligations.

This Act is civil law and complements existing state law. This Act does not limit, contradict, or supercede the Uniform Child Custody Jurisdiction and Enforcement Act or the Uniform Child Custody Jurisdiction Act. This Act is not meant to prevent a legitimate relocation action filed in accordance with the law of the state having jurisdiction to make a child-custody determination nor to prevent a victim of domestic violence from escaping abuse.

The Uniform Child Abduction Prevention Act applies to predecree and intrastate cases, to emergency situations, and to cases in which risk factors exist and the current child- custody determination lacks abduction prevention measures. Only three states have enacted comprehensive child abduction prevention statutes;¹⁴ two other states include provisions to reduce the risk of abduction.¹⁵ This Act will fill a void in the majority of states by identifying circumstances indicating a risk of abduction and providing measures to prevent the abduction of children, predecree or postdecree.

■ 14-13.5-101. Short title. This article may be cited as the "Uniform Child Abduction Prevention Act".

Source: L. 2007: Entire article added, p. 767, § 1, effective May 14.

■ 14-13.5-102. Definitions. In this article:

(1) "Abduction" means the wrongful removal or wrongful retention of a child.

(2) "Child" means an unemancipated individual who is less than 18 years of age.

(3) "Child-custody determination" means a judgment, decree, or other order of a court providing for the legal custody or physical custody of a child, allocating parental responsibilities with respect to a child, or providing for visitation or parenting time with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual.

(4) "Child-custody proceeding" means a proceeding in which the legal custody or physical custody of a child, the allocation of parental responsibilities with respect to a child, or visitation or parenting time with respect to a child is at issue. The term includes a proceeding for divorce, dissolution of marriage, legal separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, or protection from domestic violence or domestic abuse. The term does not include a proceeding involving juvenile delinquency or contractual emancipation.

(5) "Court" means an entity authorized under the law of a state to establish, enforce, or modify a child-custody determination.

(6) "Petition" includes a motion or its equivalent.

(7) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and...