SB184 (2005) Detail

Adopting the Uniform Child-Custody Jurisdictional Enforcement Act.


SB 184-FN – AS INTRODUCED

2005 SESSION

05-0916

05/03

SENATE BILL 184-FN

AN ACT adopting the Uniform Child-Custody Jurisdictional Enforcement Act.

SPONSORS: Sen. D’Allesandro, Dist 20

COMMITTEE: Judiciary

ANALYSIS

This bill recodifies RSA 458-A by replacing the state’s adoption of the Uniform Child Custody Jurisdiction Act with the Uniform Child-Custody Jurisdiction and Enforcement Act. The bill combines rules for taking jurisdiction over child-custody disputes with rules for enforcing child-custody and visitation orders issued by courts of another state.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

05-0916

05/03

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Five

AN ACT adopting the Uniform Child-Custody Jurisdictional Enforcement Act.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Uniform Child-Custody Jurisdiction and Enforcement Act. RSA 458-A is repealed and reenacted to read as follows:

UNIFORM CHILD-CUSTODY JURISDICTION AND ENFORCEMENT ACT

General Provisions

458-A:1 Short Title. This chapter may be cited as the Uniform Child-Custody Jurisdiction and Enforcement Act.

458-A:2 Definitions. In this chapter:

I. “Abandoned” means left without provision for reasonable and necessary care or supervision.

II. “Child” means an individual who has not attained 18 years of age.

III. “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. The term does not include an order relating to child support or other monetary obligation of an individual.

IV. “Child-custody proceeding” means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. The term does not include a proceeding involving contractual emancipation, juvenile delinquency under RSA 169-B, or enforcement under this chapter.

V. “Commencement” means the filing of the first pleading in a proceeding.

VI. “Court” means an entity authorized under the law of a state to establish, enforce, or modify a child-custody determination.

VII. “Home state” means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than 6 months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

VIII. “Initial determination” means the first child-custody determination concerning a particular child.

IX. “Issuing court” means the court that makes a child-custody determination for which enforcement is sought under this chapter.

X. “Issuing state” means the state in which a child-custody determination is made.

XI. “Modification” means a child-custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.

XII. “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity.

XIII. “Person acting as a parent” means a person, other than a parent, who:

(a) Has physical custody of the child or has had physical custody for a period of 6 consecutive months, including any temporary absence, within one year immediately before the commencement of a child-custody proceeding; and

(b) Has been awarded legal custody by a court or claims a right to legal custody under the law of this state.

XIV. “Physical custody” means the physical care and supervision of a child.

XV. “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.

XVI. “Tribe” means an Indian tribe or band, or Alaskan Native village, which is recognized by federal law or formally acknowledged by a state.

XVII. “Warrant” means an order issued by a court authorizing law enforcement officers to take physical custody of a child.

458-A:3 Proceedings Governed by Other Law. This chapter does not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child.

458-A:4 Application to Indian Tribes.

I. A child-custody proceeding that pertains to an Indian child as defined in the Indian Child Welfare Act, 25 U.S.C. section 1901 et seq., is not subject to this chapter to the extent that it is governed by the Indian Child Welfare Act.

II. A court of this state shall treat a tribe as if it were a state of the United States for the purpose of this chapter.

III. A child-custody determination made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of this chapter shall be recognized and enforced under this chapter.

458-A:5 International Application of Chapter.

I. A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of this chapter.

II. Except as otherwise provided in paragraph III, a child-custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this chapter shall be recognized and enforced under this chapter.

III. A court of this state may not apply this chapter if the child-custody law of a foreign country violates fundamental principles of human rights.

458-A:6 Effect of Child-Custody Determination. A child-custody determination made by a court of this state that had jurisdiction under this chapter binds all persons who have been served in accordance with the laws of this state or notified in accordance with RSA 458-A:8 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.

458-A:7 Priority. If a question of existence or exercise of jurisdiction under this chapter is raised in a child-custody proceeding, the question, upon request of a party, shall be given priority on the calendar and handled expeditiously.

458-A:8 Notice to Persons Outside State.

I. Notice required for the exercise of jurisdiction when a person is outside this state may be given in a manner prescribed by the law of this state for service of process or by the law of the state in which the service is made. Notice must be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective.

II. Proof of service may be made in the manner prescribed by the law of this state or by the law of the state in which the service is made.

III. Notice is not required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court.

458-A:9 Appearance and Limited Immunity.

I. A party to a child-custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child-custody determination, is not subject to personal jurisdiction in this state for another proceeding or purpose solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding.

II. A person who is subject to personal jurisdiction in this state on a basis other than physical presence is not immune from service of process in this state. A party present in this state who is subject to the jurisdiction of another state is not immune from service of process allowable under the laws of that state.

III. The immunity granted by paragraph I does not extend to civil litigation based on acts unrelated to the participation in a proceeding under this chapter committed by an individual while present in this state.

458-A:10 Communication Between Courts.

I. A court of this state may communicate with a court in another state concerning a proceeding arising under this chapter.

II. The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they shall be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.

III. Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of the communication.

IV. Except as otherwise provided in paragraph III, a record shall be made of a communication under this section. The parties shall be informed promptly of the communication and granted access to the record.

V. In this section, “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.

458-A:11 Taking Testimony in Another State.

I. In addition to other procedures available to a party, a party to a child-custody proceeding may offer testimony of witnesses who are located in another state, including testimony of the parties and the child, by deposition or other means allowable in this state for testimony taken in another state. The court on its own motion may order that the testimony of a person be taken in another state and may prescribe the manner in which and the terms upon which the testimony is taken.

II. A court of this state may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state. A court of this state shall cooperate with courts of other states in designating an appropriate location for the deposition or testimony.

III. Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission.

458-A:12 Cooperation Between Courts; Preservation of Records.

I. A court of this state may request the appropriate court of another state to:

(a) Hold an evidentiary hearing.

(b) Order a person to produce or give evidence pursuant to procedures of that state.

(c) Order that an evaluation be made with respect to the custody of a child involved in a pending proceeding.

(d) Forward to the court of this state a certified copy of the transcript of the record of the hearing, the evidence otherwise presented, and any evaluation prepared in compliance with the request.

(e) Order a party to a child-custody proceeding or any person having physical custody of the child to appear in the proceeding with or without the child.

II. Upon request of a court of another state, a court of this state may hold a hearing or enter an order described in paragraph I.

III. Travel and other necessary and reasonable expenses incurred under paragraphs I and II may be assessed against the parties according to the law of this state.

IV. A court of this state shall preserve the pleadings, orders, decrees, records of hearings, evaluations, and other pertinent records with respect to a child-custody proceeding until the child attains 18 years of age. Upon appropriate request by a court or law enforcement official of another state, the court shall forward a certified copy of those records.

Jurisdiction

415-A:13 Initial Child-Custody Jurisdiction.

I. Except as otherwise provided in RSA 458-A:16, a court of this state has jurisdiction to make an initial child-custody determination only if:

(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.

(b) A court of another state does not have jurisdiction under subparagraph (a), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under RSA 458-A:19 or RSA 458-A:20, and:

(1) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

(2) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.

(c) All courts having jurisdiction under subparagraph (a) or (b) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under RSA 458-A:19 or RSA 458-A:20.

(d) No court of any other state has jurisdiction under the criteria specified in subparagraph (a), (b), or (c).

II. Paragraph I is the exclusive jurisdictional basis for making a child-custody determination by a court of this state.

III. Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.

458-A:14 Exclusive, Continuing Jurisdiction.

I. Except as otherwise provided in RSA 458-A:16, a court of this state which has made a child-custody determination consistent with RSA 458-A:13 or RSA 458-A:15 has exclusive, continuing jurisdiction over the determination until:

(a) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or

(b) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.

II. A court of this state which has made a child-custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under RSA 458-A:13.

458-A:15 Jurisdiction to Modify Determination. Except as otherwise provided in RSA 458-A:16, a court of this state may not modify a child-custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under RSA 458-A:13, I(a) or (b) and:

I. The court of the other state determines it no longer has exclusive, continuing jurisdiction under RSA 458-A:14 or that a court of this state would be a more convenient forum under RSA 458-A:19; or

II. A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.

458-A:16 Temporary Emergency Jurisdiction.

I. A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

II. If there is no previous child-custody determination that is entitled to be enforced under this chapter and a child-custody proceeding has not been commenced in a court of a state having jurisdiction under RSA 458-A:13 through RSA 458-A:15, a child-custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under RSA 458-A:13 through RSA 458-A:15. If a child-custody proceeding has not been or is not commenced in a court of a state having jurisdiction under RSA 458-A:13 through RSA 458-A:15, a child-custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.

III. If there is a previous child-custody determination that is entitled to be enforced under this chapter, or a child-custody proceeding has been commenced in a court of a state having jurisdiction under RSA 458-A:13 through RSA 458-A:15, any order issued by a court of this state under this section shall specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under RSA 458-A:13 through RSA 458-A:15. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.

IV. A court of this state which has been asked to make a child-custody determination under this section, upon being informed that a child-custody proceeding has been commenced in, or a child-custody determination has been made by, a court of a state having jurisdiction under RSA 458-A:13 through RSA 458-A:15, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to RSA 458-A:13 through RSA 458-A:15, upon being informed that a child-custody proceeding has been commenced in, or a child-custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

458-A:17 Notice; Opportunity To Be Heard; Joinder.

I. Before a child-custody determination is made under this chapter, notice and an opportunity to be heard in accordance with the standards of RSA 458-A:8 shall be given to all persons entitled to notice under the law of this state as in child-custody proceedings between residents of this state, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.

II. This chapter shall not govern the enforceability of a child-custody determination made without notice or an opportunity to be heard.

III. The obligation to join a party and the right to intervene as a party in a child-custody proceeding under this chapter are governed by the law of this state as in child-custody proceedings between residents of this state.

458-A:18 Simultaneous Proceedings.

I. Except as otherwise provided in RSA 458-A:16, a court of this state may not exercise its jurisdiction under this chapter if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under RSA 458-A:19.

II. Except as otherwise provided in RSA 458-A:16, a court of this state, before hearing a child-custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to RSA 458-A:21. If the court determines that a child-custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.

III. In a proceeding to modify a child-custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child-custody determination has been commenced in another state, the court may:

(a) Stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement;

(b) Enjoin the parties from continuing with the proceeding for enforcement; or

(c) Proceed with the modification under conditions it considers appropriate.

458-A:19 Inconvenient Forum.

I. A court of this state which has jurisdiction under this chapter to make a child-custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.

II. Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:

(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.

(b) The length of time the child has resided outside this state.

(c) The distance between the court in this state and the court in the state that would assume jurisdiction.

(d) The relative financial circumstances of the parties.

(e) Any agreement of the parties as to which state should assume jurisdiction.

(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child.

(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.

(h) The familiarity of the court of each state with the facts and issues in the pending litigation.

III. If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child-custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.

IV. A court of this state may decline to exercise its jurisdiction under this chapter if a child-custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.

458-A:20 Jurisdiction Declined by Reason of Conduct.

I. Except as otherwise provided in RSA 458-A:16, if a court of this state has jurisdiction under this chapter because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:

(a) The parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;

(b) A court of the state otherwise having jurisdiction under RSA 458-A:13 through RSA 458-A:15 determines that this state is a more appropriate forum under RSA 458-A:19; or

(c) No court of any other state would have jurisdiction under the criteria specified in RSA 458-A:13 through RSA 458-A:15.

II. If a court of this state declines to exercise its jurisdiction pursuant to paragraph I, it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child-custody proceeding is commenced in a court having jurisdiction under RSA 458-A:13 through RSA 458-A:15.

III. If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to paragraph I, it shall assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses including costs, communication expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate. The court may not assess fees, costs, or expenses against this state unless authorized by law other than this chapter.

458-A:21 Information to be Submitted to Court.

I. In a child-custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child’s present address or whereabouts, the places where the child has lived during the last 5 years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit shall state whether the party:

(a) Has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child-custody determination, if any.

(b) Knows of any proceeding that may affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding.

(c) Knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.

II. If the information required by paragraph I is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.

III. If the declaration as to any of the items described in subparagraphs I(a)-(c) is in the affirmative, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and other matters pertinent to the court’s jurisdiction and the disposition of the case.

IV. Each party has a continuing duty to inform the court of any proceeding in this or any other state that may affect the current proceeding.

V. If a party alleges in an affidavit or a pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of identifying information, the information shall be sealed and may not be disclosed to the other party or the public unless the court orders the disclosure to be made after a hearing in which the court takes into consideration the health, safety, or liberty of the party or child and determines that the disclosure is in the interest of justice.

458-A:22 Appearance of Parties and Child.

I. In a child-custody proceeding in this state, the court may order a party to the proceeding who is in this state to appear before the court in person with or without the child. The court may order any person who is in this state and who has physical custody or control of the child to appear in person with the child.

II. If a party to a child-custody proceeding whose presence is desired by the court is outside this state, the court may order that a notice given pursuant to RSA 458-A:8 include a statement directing the party to appear in person with or without the child and informing the party that failure to appear may result in a decision adverse to the party.

III. The court may enter any orders necessary to ensure the safety of the child and of any person ordered to appear under this section.

IV. If a party to a child-custody proceeding who is outside this state is directed to appear under paragraph II or desires to appear personally before the court with or without the child, the court may require another party to pay reasonable and necessary travel and other expenses of the party so appearing and of the child.

Enforcement

458-A:23 Definitions. In this subdivision:

I. “Petitioner” means a person who seeks enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child-custody determination.

II. “Respondent” means a person against whom a proceeding has been commenced for enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child-custody determination.

458-A:24 Enforcement Under Hague Convention. Under this subdivision, a court of this state may enforce an order for the return of the child made under the Hague Convention on the Civil Aspects of International Child Abduction as if it were a child-custody determination.

458-A:25 Duty to Enforce.

I. A court of this state shall recognize and enforce a child-custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this chapter or the determination was made under factual circumstances meeting the jurisdictional standards of this chapter and the determination has not been modified in accordance with this chapter.

II. A court of this state may utilize any remedy available under other law of this state to enforce a child-custody determination made by a court of another state. The remedies provided in this subdivision are cumulative and do not affect the availability of other remedies to enforce a child-custody determination.

458-A:26 Temporary Visitation.

I. A court of this state which does not have jurisdiction to modify a child-custody determination may issue a temporary order enforcing:

(a) A visitation schedule made by a court of another state; or

(b) The visitation provisions of a child-custody determination of another state that does not provide for a specific visitation schedule.

II. If a court of this state makes an order under subparagraph I(b), it shall specify in the order a period that it considers adequate to allow the petitioner to obtain an order from a court having jurisdiction under the criteria specified in this chapter. The order remains in effect until an order is obtained from the other court or the period expires.

458-A:27 Registration of Child-Custody Determination.

I. A child-custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement, by sending to the office of the clerk of the superior court the following:

(a) A letter or other document requesting registration.

(b) Two copies, including one certified copy, of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order has not been modified.

(c) Except as otherwise provided in RSA 458-A:21, the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child-custody determination sought to be registered.

II. On receipt of the documents required by paragraph I, the registering court shall:

(a) Cause the determination to be filed as a foreign judgment, together with one copy of any accompanying documents and information, regardless of their form.

(b) Serve notice upon the persons named pursuant to subparagraph I(c) and provide them with an opportunity to contest the registration in accordance with this section.

III. The notice required by subparagraph II(b) shall state that:

(a) A registered determination is enforceable as of the date of the registration in the same manner as a determination issued by a court of this state.

(b) A hearing to contest the validity of the registered determination shall be requested within 20 days after service of notice.

(c) Failure to contest the registration will result in confirmation of the child-custody determination and preclude further contest of that determination with respect to any matter that could have been asserted.

IV. A person seeking to contest the validity of a registered order shall request a hearing within 20 days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting registration establishes that:

(a) The issuing court did not have jurisdiction under this chapter;

(b) The child-custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under this chapter; or

(c) The person contesting registration was entitled to notice, but notice was not given in accordance with the standards of RSA 458-A:8, in the proceedings before the court that issued the order for which registration is sought.

V. If a timely request for a hearing to contest the validity of the registration is not made, the registration is confirmed as a matter of law and the person requesting registration and all persons served shall be notified of the confirmation.

VI. Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.

458-A:28 Enforcement of Registered Determination.

I. A court of this state may grant any relief normally available under the law of this state to enforce a registered child-custody determination made by a court of another state.

II. A court of this state shall recognize and enforce, but may not modify, except in accordance with RSA 458-A:15, a registered child-custody determination of a court of another state.

458-A:29 Simultaneous Proceedings. If a proceeding for enforcement under this subdivision is commenced in a court of this state and the court determines that a proceeding to modify the determination is pending in a court of another state having jurisdiction to modify the determination under RSA 458-A:13 through RSA 458-A:22, the enforcing court shall immediately communicate with the modifying court. The proceeding for enforcement continues unless the enforcing court, after consultation with the modifying court, stays or dismisses the proceeding.

458-A:30 Expedited Enforcement of Child-Custody Determination.

I. A petition under this subdivision shall be verified. Certified copies of all orders sought to be enforced and of any order confirming registration shall be attached to the petition. A copy of a certified copy of an order may be attached instead of the original.

II. A petition for enforcement of a child-custody determination shall state:

(a) Whether the court that issued the determination identified the jurisdictional basis it relied upon in exercising jurisdiction and, if so, what the basis was.

(b) Whether the determination for which enforcement is sought has been vacated, stayed, or modified by a court whose decision shall be enforced under this chapter and, if so, identify the court, the case number, and the nature of the proceeding.

(c) Whether any proceeding has been commenced that could affect the current proceeding, including proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding.

(d) The present physical address of the child and the respondent, if known.

(e) Whether relief in addition to the immediate physical custody of the child and attorney’s fees is sought, including a request for assistance from law enforcement officials and, if so, the relief sought.

(f) If the child-custody determination has been registered and confirmed under RSA 458-A:27, the date and place of registration.

III. Upon the filing of a petition, the court shall issue an order directing the respondent to appear in person with or without the child at a hearing and may enter any order necessary to ensure the safety of the parties and the child. The hearing shall be held on the next judicial day after service of the order unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The court may extend the date of hearing at the request of the petitioner.

IV. An order issued under paragraph III shall state the time and place of the hearing and advise the respondent that at the hearing the court will order that the petitioner may take immediate physical custody of the child and the payment of fees, costs, and expenses under RSA 458-A:34, and may schedule a hearing to determine whether further relief is appropriate, unless the respondent appears and establishes that either:

(a) The child-custody determination has not been registered and confirmed under RSA 458-A:27 and that:

(1) The issuing court did not have jurisdiction under this chapter;

(2) The child-custody determination for which enforcement is sought has been vacated, stayed, or modified by a court having jurisdiction to do so under this chapter; or

(3) The respondent was entitled to notice, but notice was not given in accordance with the standards of RSA 458-A:8, in the proceedings before the court that issued the order for which enforcement is sought; or

(b) The child-custody determination for which enforcement is sought was registered and confirmed under RSA 458-A:27, but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under this chapter.

458-A:31 Service of Petition and Order. Except as otherwise provided in RSA 458-A:33, the petition and order shall be served, by any method authorized by the law of this state, upon respondent and any person who has physical custody of the child.

458-A:32 Hearing and Order.

I. Unless the court issues a temporary emergency order pursuant to RSA 458-A:16, upon a finding that 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 either:

(a) The child-custody determination has not been registered and confirmed under RSA 458-A:27 and that:

(1) The issuing court did not have jurisdiction under this chapter;

(2) The child-custody determination for which enforcement is sought has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under this chapter; or

(3) The respondent was entitled to notice, but notice was not given in accordance with the standards of RSA 458-A:8, in the proceedings before the court that issued the order for which enforcement is sought; or

(b) The child-custody determination for which enforcement is sought was registered and confirmed under RSA 458-A:27, but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under this chapter.

II. The court shall award the fees, costs, and expenses authorized under RSA 458-A:34 and may grant additional relief, including a request for the assistance of law enforcement officials, and set a further hearing to determine whether additional relief is appropriate.

III. If a party called to testify refuses to answer on the ground that the testimony may be self-incriminating, the court may draw an adverse inference from the refusal.

IV. A privilege against disclosure of communications between spouses and a defense of immunity based on the relationship of husband and wife or parent and child may not be invoked in a proceeding under this subdivision.

458-A:33 Warrant to Take Physical Custody of Child.

I. Upon the 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 serious physical harm or be removed from this state.

II. If the court, upon the testimony of the petitioner or other witness, finds that the child is imminently likely to suffer serious physical harm or be removed from this state, it may issue a warrant to take physical custody of the child. The petition shall be heard on the next judicial day after the warrant is executed unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The application for the warrant must include the statements required by RSA 458-A:30, II.

III. A warrant to take physical custody of a child shall:

(a) Recite the facts upon which a conclusion of imminent serious physical harm or removal from the jurisdiction is based.

(b) Direct law enforcement officers to take physical custody of the child immediately.

(c) Provide for the placement of the child pending final relief.

IV. The respondent shall be served with the petition, warrant, and order immediately after the child is taken into physical custody.

V. A warrant to take physical custody of a child is enforceable throughout this state. If the court finds on the basis of the testimony of the petitioner or other witness that a less intrusive remedy is not effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances of the case, the court may authorize law enforcement officers to make a forcible entry at any hour.

VI. The court may impose conditions upon placement of a child to ensure the appearance of the child and the child’s custodian.

458-A:34 Costs, Fees, and Expenses.

I. The court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.

II. The court may not assess fees, costs, or expenses against a state unless authorized by law other than this chapter.

458-A:35 Recognition and Enforcement. A court of this state shall accord full faith and credit to an order issued by another state and consistent with this chapter which enforces a child-custody determination by a court of another state unless the order has been vacated, stayed, or modified by a court having jurisdiction to do so under this chapter.

458-A:36 Appeals. An appeal may be taken from a final order in a proceeding under this subdivision in accordance with any expedited appellate procedure available in other civil cases. Unless the court enters a temporary emergency order under RSA 458-A:16, the enforcing court may not stay an order enforcing a child-custody determination pending appeal.

458-A:37 Role of Attorney General and County Attorney.

I. In a case arising under this chapter or involving the Hague Convention on the Civil Aspects of International Child Abduction, the attorney general or county attorney may take any lawful action, including resort to a proceeding under this chapter or any other available civil proceeding to locate a child, obtain the return of a child, or enforce a child-custody determination if there is:

(a) An existing child-custody determination;

(b) A request to do so from a court in a pending child-custody proceeding;

(c) A reasonable belief that a criminal statute has been violated; or

(d) A reasonable belief that the child has been wrongfully removed or retained in violation of the Hague Convention on the Civil Aspects of International Child Abduction.

II. An attorney from the department of justice or county attorney’s office acting under this section acts on behalf of the court and may not represent any party.

458-A:38 Role of Law Enforcement. At the request of the attorney general or county attorney, acting under RSA 458-A:37, a law enforcement officer may take any lawful action reasonably necessary to locate a child or a party and assist the attorney general or county attorney with responsibilities under RSA 458-A:37.

458-A:39 Costs and Expenses. If the respondent is not the prevailing party, the court may assess against the respondent all direct expenses and costs incurred by the state or county and law enforcement officers under RSA 458-A:37 or RSA 458-A:38.

458-A:40 Application and Construction. In applying and construing this chapter, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

2 Transitional Provision. A motion or other request for relief made in a child-custody proceeding or to enforce a child-custody determination which was commenced before the effective date of this act is governed by the law in effect at the time the motion or other request was made.

3 Effective Date. This act shall take effect January 1, 2006.

LBAO

05-0916

2/2/05

SB 184 FISCAL NOTE

AN ACT adopting the Uniform Child-Custody Jurisdictional Enforcement Act.

FISCAL IMPACT:

The Legislative Budget Assistant has determined that this legislation has a total fiscal impact of less than $10,000 in each of the fiscal years 2005 through 2009.

Links

SB184 at GenCourtMobile

Action Dates

Date Body Type

Bill Text Revisions

SB184 Revision: 9238 Date: Jan. 21, 2010, midnight

Docket