THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY CORMAN, TOMLINSON, BROWNE, D. WHITE, RAFFERTY, ERICKSON, ALLOWAY, SOLOBAY, BAKER, TARTAGLIONE, FERLO, MENSCH AND LEACH, MARCH 20, 2012

REFERRED TO JUDICIARY, MARCH 20, 2012  

AN ACT

Amending Title 23 (Domestic Relations) of the Pennsylvania

Consolidated Statutes, providing for prevention of abduction

of children.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Title 23 of the Pennsylvania Consolidated

Statutes is amended by adding a chapter to read:

CHAPTER 52

UNIFORM CHILD ABDUCTION PREVENTION

Sec.

5201.  Scope of chapter.

5202.  Definitions.

5203.  Cooperation and communication among courts.

5204.  Actions for abduction prevention measures.

5205.  Jurisdiction.

5206.  Contents of petition.

5207.  Factors to determine risk of abduction.

5208.  Provisions and measures to prevent abduction.

5209.  Warrant to take physical custody of child.

5210.  Duration of abduction prevention order.

5211.  Uniformity of application and construction.

5212.  Relation to Electronic Signatures in Global and National

Commerce Act.

§ 5201.  Scope of chapter.

This chapter relates to uniform child abduction prevention.

§ 5202.  Definitions.

The following words and phrases when used in this chapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Abduction."  The wrongful removal or wrongful retention of a

child.

"Child."  An unemancipated individual who is under 18 years

of age.

"Child custody determination."  Any 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.

"Child custody proceeding."  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.

"Court."  An entity authorized under the law of a state to

establish, enforce or modify a child custody determination.

"Petition."  A motion or its equivalent.

"Record."  Information that is inscribed on a tangible medium

or that is stored in an electronic or other medium and is

retrievable in perceivable form.

"State."  A state of the United States, the District of

Columbia, Puerto Rico, the 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.

"Travel document."  Records relating to a travel itinerary,

including travel tickets, passes, reservations for

transportation or accommodations. The term does not include a

passport or visa.

"Wrongful removal."  The taking of a child that breaches

rights of custody or visitation given or recognized under the

laws of this Commonwealth.

"Wrongful retention."  The keeping or concealing of a child

that breaches rights of custody or visitation given or

recognized under the laws of this Commonwealth.

§ 5203.  Cooperation and communication among courts.

Sections 5410 (relating to communication between courts),

5411 (relating to taking testimony in another state) and 5412

(relating to cooperation between courts; preservation of

records) apply to cooperation and communications among courts in

proceedings under this chapter.

§ 5204.  Actions for abduction prevention measures.

(a)  Court.--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.

(b)  Party.--A party to a child custody determination or

another individual or entity having a right under the laws of

this Commonwealth 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.

(c)  Prosecutors or public officials.--A prosecutor or public

authority designated under section 5455 (relating to role of

prosecutor or public official) may seek a warrant to take

physical custody of a child under section 5209 (relating to

warrant to take physical custody of child) or other appropriate

prevention measures.

§ 5205.  Jurisdiction.

(a)  General rule.--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 54 (relating to uniform child custody jurisdiction and

enforcement).

(b)  Emergency jurisdiction.--A court of this Commonwealth

has temporary emergency jurisdiction under section 5424

(relating to temporary emergency jurisdiction) if the court

finds a credible risk of abduction.

§ 5206.  Contents of petition.

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 under section 5207

(relating to factors to determine risk of abduction). Subject to

section 5429(e) (relating to information to be submitted to

court), if reasonably ascertainable, the petition must contain:

(1)  the name, date of birth and gender of the child;

(2)  the customary address and current physical location

of the child;

(3)  the identity, customary address and current physical

location of the respondent;

(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;

(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

(6)  any other information required to be submitted to

the court for a child custody determination under section

5429.

§ 5207.  Factors to determine risk of abduction.

(a)  Evidence supporting risk.--In determining whether there

is a credible risk of abduction of a child, the court shall

consider any evidence that the petitioner or respondent:

(1)  has previously abducted or attempted to abduct the

child;

(2)  has threatened to abduct the child;

(3)  has recently engaged in activities that may indicate

a planned abduction, including:

(i)  abandoning employment;

(ii)  selling a primary residence;

(iii)  terminating a lease;

(iv)  closing bank or other financial management

accounts, liquidating assets, hiding or destroying

financial documents or conducting any unusual financial

activities;

(v)  applying for a passport or visa or obtaining

travel documents for the respondent, a family member or

the child; or

(vi)  seeking to obtain the child's birth certificate

or school or medical records;

(4)  has engaged in domestic violence, stalking or child

abuse or neglect;

(5)  has refused to follow a child custody determination;

(6)  lacks strong familial, financial, emotional or

cultural ties to this Commonwealth or the United States;

(7)  has strong familial, financial, emotional or

cultural ties to another state or country;

(8)  is likely to take the child to a country that:

(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;

(ii)  is a party to the Hague Convention on the Civil

Aspects of International Child Abduction but:

(A)  the Hague Convention on the Civil Aspects of

International Child Abduction is not in force between

the United States and that country;

(B)  according to the most recent compliance

report issued by the United States Department of

State, is noncompliant; or

(C)  lacks legal mechanisms for immediately and

effectively enforcing a return order under the Hague

Convention on the Civil Aspects of International

Child Abduction;

(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;

(iv)  has laws or practices that would:

(A)  enable the respondent, without due cause, to

prevent the petitioner from contacting the child;

(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

(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;

(v)  is included by the United States Department of

State on a current list of state sponsors of terrorism;

(vi)  does not have an official United States

diplomatic presence in the country; or

(vii)  is engaged in active military action or war,

including a civil war, to which the child may be exposed;

(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;

(10)  has had an application for United States

citizenship denied;

(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;

(12)  has used multiple names to attempt to mislead or

defraud; or

(13)  has engaged in any other conduct the court

considers relevant to the risk of abduction.

(b)  Good faith.--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.

§ 5208.  Provisions and measures to prevent abduction.

(a)  Contents of discretionary orders.--If a petition is

filed under this chapter, the court may enter an order that must

include:

(1)  the basis for the court's exercise of jurisdiction;

(2)  the manner in which notice and opportunity to be

heard were given to the persons entitled to notice of the

proceeding;

(3)  a detailed description of each party's custody and

visitation rights and residential arrangements for the child;

(4)  a provision stating that a violation of the order

may subject the party in violation to civil and criminal

penalties; and

(5)  identification of the child's country of habitual

residence at the time of the issuance of the order.

(b)  Abduction prevention orders.--

(1)  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.

(2)  The order must include the provisions required by

subsection (a) and measures and conditions, including those

in subsections (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.

(3)  The court shall consider:

(i)  the age of the child;

(ii)  the potential harm to the child from an

abduction;

(iii)  the legal and practical difficulties of

returning the child to the jurisdiction if abducted; and

(iv)  the reasons for the potential abduction,

including evidence of domestic violence, stalking or

child abuse or neglect.

(c)  Restrictions.--An abduction prevention order may include

one or more of the following:

(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:

(i)  the travel itinerary of the child;

(ii)  a list of physical addresses and telephone

numbers at which the child can be reached at specified

times; and

(iii)  copies of all travel documents;

(2)  a prohibition of the respondent directly or

indirectly:

(i)  removing the child from this Commonwealth, the

United States or another geographic area without

permission of the court or the petitioner's written

consent;

(ii)  removing or retaining the child in violation of

a child custody determination;

(iii)  removing the child from school or a child-care

or similar facility; or

(iv)  approaching the child at any location other

than a site designated for supervised visitation;

(3)  a requirement that a party register the order in

another state as a prerequisite to allowing the child to

travel to that state;

(4)  with regard to the child's passport:

(i)  a direction that the petitioner place the

child's name in the United States Department of State's

Child Passport Issuance Alert Program;

(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

(iii)  a prohibition upon the respondent from

applying on behalf of the child for a new or replacement

passport or visa;

(5)  as a prerequisite to exercising custody or

visitation, a requirement that the respondent provide:

(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;

(ii)  to the court:

(A)  proof that the respondent has provided the

information in subparagraph (i); and

(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;

(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

(iv)  a written waiver under the Privacy Act, 5

U.S.C. § 552a (relating to records maintained on

individuals), with respect to any document, application

or other information pertaining to the child authorizing

its disclosure to the court and the petitioner; and

(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.

(d)  Conditions on custody and visitation.--In an abduction

prevention order, the court may impose conditions on the

exercise of custody or visitation that:

(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;

(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

(3)  require the respondent to obtain education on the

potentially harmful effects to the child from abduction.

(e)  Prevention of imminent abduction.--To prevent imminent

abduction of a child, a court may:

(1)  issue a warrant to take physical custody of the

child under section 5209 (relating to warrant to take

physical custody of child) or the laws of this Commonwealth

other than this chapter;

(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 laws of this Commonwealth other than this

chapter; or

(3)  grant any other relief allowed under the laws of

this Commonwealth other than this chapter.

(f)  Cumulative remedies.--The remedies provided in this

chapter are cumulative and do not affect the availability of

other remedies to prevent abduction.

§ 5209.  Warrant to take physical custody of child.

(a)  Ex parte.--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.

(b)  Hearing.--The respondent on a petition under subsection

(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.

(c)  Requirements.--An ex parte warrant under subsection (a)

to take physical custody of a child must:

(1)  Recite the facts upon which a determination of a

credible risk of imminent wrongful removal of the child is

based.

(2)  Direct law enforcement officers to take physical

custody of the child immediately.

(3)  State the date and time for the hearing on the

petition.

(4)  Provide for the safe interim placement of the child

pending further order of the court.

(d)  Search of databases.--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.

(e)  Service.--The petition and warrant must be served on the

respondent when or immediately after the child is taken into

physical custody.

(f)  Enforcement.--

(1)  A warrant to take physical custody of a child,

issued by this Commonwealth or another state, is enforceable

throughout this Commonwealth.

(2)  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.

(g)  Fees and costs.--If the court finds, after a hearing,

that a petitioner sought an ex parte warrant under subsection

(a) for the purpose of harassment or in bad faith, the court may

award the respondent reasonable attorney fees, costs and

expenses.

(h)  Other relief.--This chapter does not affect the

availability of relief allowed under the laws of this

Commonwealth other than this chapter.

§ 5210.  Duration of abduction prevention order.

An abduction prevention order remains in effect until the

earliest of:

(1)  the time stated in the order;

(2)  the emancipation of the child;

(3)  the child's attaining 18 years of age; or

(4)  the time the order is modified, revoked, vacated or

superseded by a court with jurisdiction under sections 5421

(relating to initial child custody jurisdiction), 5422

(relating to exclusive, continuing jurisdiction) and 5423

(relating to jurisdiction to modify determination) and

applicable laws of this Commonwealth.

§ 5211.  Uniformity of application and construction.

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.

§ 5212.  Relation to Electronic Signatures in Global and

National Commerce Act.

To the extent permitted by section 102 of the Electronic

Signatures in Global and National Commerce Act (Public Law

106-229, 15 U.S.C. § 7002), this chapter may supersede

provisions of that act.

Section 2.  This act shall take effect in 60 days.