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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY CORMAN, TOMLINSON, BROWNE, D. WHITE, RAFFERTY, ERICKSON, ALLOWAY, SOLOBAY, BAKER, TARTAGLIONE, FERLO, MENSCH AND LEACH, MARCH 20, 2012 |
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| REFERRED TO JUDICIARY, MARCH 20, 2012 |
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| AN ACT |
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1 | Amending Title 23 (Domestic Relations) of the Pennsylvania |
2 | Consolidated Statutes, providing for prevention of abduction |
3 | of children. |
4 | The General Assembly of the Commonwealth of Pennsylvania |
5 | hereby enacts as follows: |
6 | Section 1. Title 23 of the Pennsylvania Consolidated |
7 | Statutes is amended by adding a chapter to read: |
8 | CHAPTER 52 |
9 | UNIFORM CHILD ABDUCTION PREVENTION |
10 | Sec. |
11 | 5201. Scope of chapter. |
12 | 5202. Definitions. |
13 | 5203. Cooperation and communication among courts. |
14 | 5204. Actions for abduction prevention measures. |
15 | 5205. Jurisdiction. |
16 | 5206. Contents of petition. |
17 | 5207. Factors to determine risk of abduction. |
18 | 5208. Provisions and measures to prevent abduction. |
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1 | 5209. Warrant to take physical custody of child. |
2 | 5210. Duration of abduction prevention order. |
3 | 5211. Uniformity of application and construction. |
4 | 5212. Relation to Electronic Signatures in Global and National |
5 | Commerce Act. |
6 | § 5201. Scope of chapter. |
7 | This chapter relates to uniform child abduction prevention. |
8 | § 5202. Definitions. |
9 | The following words and phrases when used in this chapter |
10 | shall have the meanings given to them in this section unless the |
11 | context clearly indicates otherwise: |
12 | "Abduction." The wrongful removal or wrongful retention of a |
13 | child. |
14 | "Child." An unemancipated individual who is under 18 years |
15 | of age. |
16 | "Child custody determination." Any judgment, decree or other |
17 | order of a court providing for the legal custody, physical |
18 | custody or visitation with respect to a child. The term includes |
19 | a permanent, temporary, initial and modification order. |
20 | "Child custody proceeding." A proceeding in which legal |
21 | custody, physical custody or visitation with respect to a child |
22 | is at issue. The term includes a proceeding for divorce, |
23 | dissolution of marriage, separation, neglect, abuse, dependency, |
24 | guardianship, paternity, termination of parental rights or |
25 | protection from domestic violence. |
26 | "Court." An entity authorized under the law of a state to |
27 | establish, enforce or modify a child custody determination. |
28 | "Petition." A motion or its equivalent. |
29 | "Record." Information that is inscribed on a tangible medium |
30 | or that is stored in an electronic or other medium and is |
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1 | retrievable in perceivable form. |
2 | "State." A state of the United States, the District of |
3 | Columbia, Puerto Rico, the Virgin Islands or any territory or |
4 | insular possession subject to the jurisdiction of the United |
5 | States. The term includes a federally recognized Indian tribe or |
6 | nation. |
7 | "Travel document." Records relating to a travel itinerary, |
8 | including travel tickets, passes, reservations for |
9 | transportation or accommodations. The term does not include a |
10 | passport or visa. |
11 | "Wrongful removal." The taking of a child that breaches |
12 | rights of custody or visitation given or recognized under the |
13 | laws of this Commonwealth. |
14 | "Wrongful retention." The keeping or concealing of a child |
15 | that breaches rights of custody or visitation given or |
16 | recognized under the laws of this Commonwealth. |
17 | § 5203. Cooperation and communication among courts. |
18 | Sections 5410 (relating to communication between courts), |
19 | 5411 (relating to taking testimony in another state) and 5412 |
20 | (relating to cooperation between courts; preservation of |
21 | records) apply to cooperation and communications among courts in |
22 | proceedings under this chapter. |
23 | § 5204. Actions for abduction prevention measures. |
24 | (a) Court.--A court on its own motion may order abduction |
25 | prevention measures in a child custody proceeding if the court |
26 | finds that the evidence establishes a credible risk of abduction |
27 | of the child. |
28 | (b) Party.--A party to a child custody determination or |
29 | another individual or entity having a right under the laws of |
30 | this Commonwealth or any other state to seek a child custody |
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1 | determination for the child may file a petition seeking |
2 | abduction prevention measures to protect the child under this |
3 | chapter. |
4 | (c) Prosecutors or public officials.--A prosecutor or public |
5 | authority designated under section 5455 (relating to role of |
6 | prosecutor or public official) may seek a warrant to take |
7 | physical custody of a child under section 5209 (relating to |
8 | warrant to take physical custody of child) or other appropriate |
9 | prevention measures. |
10 | § 5205. Jurisdiction. |
11 | (a) General rule.--A petition under this chapter may be |
12 | filed only in a court that has jurisdiction to make a child |
13 | custody determination with respect to the child at issue under |
14 | Chapter 54 (relating to uniform child custody jurisdiction and |
15 | enforcement). |
16 | (b) Emergency jurisdiction.--A court of this Commonwealth |
17 | has temporary emergency jurisdiction under section 5424 |
18 | (relating to temporary emergency jurisdiction) if the court |
19 | finds a credible risk of abduction. |
20 | § 5206. Contents of petition. |
21 | A petition under this chapter must be verified and include a |
22 | copy of any existing child custody determination, if available. |
23 | The petition must specify the risk factors for abduction, |
24 | including the relevant factors described under section 5207 |
25 | (relating to factors to determine risk of abduction). Subject to |
26 | section 5429(e) (relating to information to be submitted to |
27 | court), if reasonably ascertainable, the petition must contain: |
28 | (1) the name, date of birth and gender of the child; |
29 | (2) the customary address and current physical location |
30 | of the child; |
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1 | (3) the identity, customary address and current physical |
2 | location of the respondent; |
3 | (4) a statement of whether a prior action to prevent |
4 | abduction or domestic violence has been filed by a party or |
5 | other individual or entity having custody of the child and |
6 | the date, location and disposition of the action; |
7 | (5) a statement of whether a party to the proceeding has |
8 | been arrested for a crime related to domestic violence, |
9 | stalking or child abuse or neglect and the date, location and |
10 | disposition of the case; and |
11 | (6) any other information required to be submitted to |
12 | the court for a child custody determination under section |
13 | 5429. |
14 | § 5207. Factors to determine risk of abduction. |
15 | (a) Evidence supporting risk.--In determining whether there |
16 | is a credible risk of abduction of a child, the court shall |
17 | consider any evidence that the petitioner or respondent: |
18 | (1) has previously abducted or attempted to abduct the |
19 | child; |
20 | (2) has threatened to abduct the child; |
21 | (3) has recently engaged in activities that may indicate |
22 | a planned abduction, including: |
23 | (i) abandoning employment; |
24 | (ii) selling a primary residence; |
25 | (iii) terminating a lease; |
26 | (iv) closing bank or other financial management |
27 | accounts, liquidating assets, hiding or destroying |
28 | financial documents or conducting any unusual financial |
29 | activities; |
30 | (v) applying for a passport or visa or obtaining |
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1 | travel documents for the respondent, a family member or |
2 | the child; or |
3 | (vi) seeking to obtain the child's birth certificate |
4 | or school or medical records; |
5 | (4) has engaged in domestic violence, stalking or child |
6 | abuse or neglect; |
7 | (5) has refused to follow a child custody determination; |
8 | (6) lacks strong familial, financial, emotional or |
9 | cultural ties to this Commonwealth or the United States; |
10 | (7) has strong familial, financial, emotional or |
11 | cultural ties to another state or country; |
12 | (8) is likely to take the child to a country that: |
13 | (i) is not a party to the Hague Convention on the |
14 | Civil Aspects of International Child Abduction and does |
15 | not provide for the extradition of an abducting parent or |
16 | for the return of an abducted child; |
17 | (ii) is a party to the Hague Convention on the Civil |
18 | Aspects of International Child Abduction but: |
19 | (A) the Hague Convention on the Civil Aspects of |
20 | International Child Abduction is not in force between |
21 | the United States and that country; |
22 | (B) according to the most recent compliance |
23 | report issued by the United States Department of |
24 | State, is noncompliant; or |
25 | (C) lacks legal mechanisms for immediately and |
26 | effectively enforcing a return order under the Hague |
27 | Convention on the Civil Aspects of International |
28 | Child Abduction; |
29 | (iii) poses a risk that the child's physical or |
30 | emotional health or safety would be endangered in the |
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1 | country because of specific circumstances relating to the |
2 | child or because of human rights violations committed |
3 | against children; |
4 | (iv) has laws or practices that would: |
5 | (A) enable the respondent, without due cause, to |
6 | prevent the petitioner from contacting the child; |
7 | (B) restrict the petitioner from freely |
8 | traveling to or exiting from the country because of |
9 | the petitioner's gender, nationality, marital status |
10 | or religion; or |
11 | (C) restrict the child's ability legally to |
12 | leave the country after the child reaches the age of |
13 | majority because of a child's gender, nationality or |
14 | religion; |
15 | (v) is included by the United States Department of |
16 | State on a current list of state sponsors of terrorism; |
17 | (vi) does not have an official United States |
18 | diplomatic presence in the country; or |
19 | (vii) is engaged in active military action or war, |
20 | including a civil war, to which the child may be exposed; |
21 | (9) is undergoing a change in immigration or citizenship |
22 | status that would adversely affect the respondent's ability |
23 | to remain in the United States legally; |
24 | (10) has had an application for United States |
25 | citizenship denied; |
26 | (11) has forged or presented misleading or false |
27 | evidence on government forms or supporting documents to |
28 | obtain or attempt to obtain a passport, a visa, travel |
29 | documents, a Social Security card, a driver's license or |
30 | other government-issued identification card or has made a |
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1 | misrepresentation to the United States Government; |
2 | (12) has used multiple names to attempt to mislead or |
3 | defraud; or |
4 | (13) has engaged in any other conduct the court |
5 | considers relevant to the risk of abduction. |
6 | (b) Good faith.--In the hearing on a petition under this |
7 | chapter, the court shall consider any evidence that the |
8 | respondent believed in good faith that the respondent's conduct |
9 | was necessary to avoid imminent harm to the child or respondent |
10 | and any other evidence that may be relevant to whether the |
11 | respondent may be permitted to remove or retain the child. |
12 | § 5208. Provisions and measures to prevent abduction. |
13 | (a) Contents of discretionary orders.--If a petition is |
14 | filed under this chapter, the court may enter an order that must |
15 | include: |
16 | (1) the basis for the court's exercise of jurisdiction; |
17 | (2) the manner in which notice and opportunity to be |
18 | heard were given to the persons entitled to notice of the |
19 | proceeding; |
20 | (3) a detailed description of each party's custody and |
21 | visitation rights and residential arrangements for the child; |
22 | (4) a provision stating that a violation of the order |
23 | may subject the party in violation to civil and criminal |
24 | penalties; and |
25 | (5) identification of the child's country of habitual |
26 | residence at the time of the issuance of the order. |
27 | (b) Abduction prevention orders.-- |
28 | (1) If, at a hearing on a petition under this chapter or |
29 | on the court's own motion, the court after reviewing the |
30 | evidence finds a credible risk of abduction of the child, the |
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1 | court shall enter an abduction prevention order. |
2 | (2) The order must include the provisions required by |
3 | subsection (a) and measures and conditions, including those |
4 | in subsections (c), (d) and (e), that are reasonably |
5 | calculated to prevent abduction of the child, giving due |
6 | consideration to the custody and visitation rights of the |
7 | parties. |
8 | (3) The court shall consider: |
9 | (i) the age of the child; |
10 | (ii) the potential harm to the child from an |
11 | abduction; |
12 | (iii) the legal and practical difficulties of |
13 | returning the child to the jurisdiction if abducted; and |
14 | (iv) the reasons for the potential abduction, |
15 | including evidence of domestic violence, stalking or |
16 | child abuse or neglect. |
17 | (c) Restrictions.--An abduction prevention order may include |
18 | one or more of the following: |
19 | (1) an imposition of travel restrictions that require |
20 | that a party traveling with the child outside a designated |
21 | geographical area provide the other party with the following: |
22 | (i) the travel itinerary of the child; |
23 | (ii) a list of physical addresses and telephone |
24 | numbers at which the child can be reached at specified |
25 | times; and |
26 | (iii) copies of all travel documents; |
27 | (2) a prohibition of the respondent directly or |
28 | indirectly: |
29 | (i) removing the child from this Commonwealth, the |
30 | United States or another geographic area without |
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1 | permission of the court or the petitioner's written |
2 | consent; |
3 | (ii) removing or retaining the child in violation of |
4 | a child custody determination; |
5 | (iii) removing the child from school or a child-care |
6 | or similar facility; or |
7 | (iv) approaching the child at any location other |
8 | than a site designated for supervised visitation; |
9 | (3) a requirement that a party register the order in |
10 | another state as a prerequisite to allowing the child to |
11 | travel to that state; |
12 | (4) with regard to the child's passport: |
13 | (i) a direction that the petitioner place the |
14 | child's name in the United States Department of State's |
15 | Child Passport Issuance Alert Program; |
16 | (ii) a requirement that the respondent surrender to |
17 | the court or the petitioner's attorney any United States |
18 | or foreign passport issued in the child's name, including |
19 | a passport issued in the name of both the parent and the |
20 | child; and |
21 | (iii) a prohibition upon the respondent from |
22 | applying on behalf of the child for a new or replacement |
23 | passport or visa; |
24 | (5) as a prerequisite to exercising custody or |
25 | visitation, a requirement that the respondent provide: |
26 | (i) to the United States Department of State Office |
27 | of Children's Issues and the relevant foreign consulate |
28 | or embassy, an authenticated copy of the order detailing |
29 | passport and travel restrictions for the child; |
30 | (ii) to the court: |
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1 | (A) proof that the respondent has provided the |
2 | information in subparagraph (i); and |
3 | (B) an acknowledgment in a record from the |
4 | relevant foreign consulate or embassy that no |
5 | passport application has been made or passport issued |
6 | on behalf of the child; |
7 | (iii) to the petitioner, proof of registration with |
8 | the United States Embassy or other United States |
9 | diplomatic presence in the destination country and with |
10 | the Central Authority for the Hague Convention on the |
11 | Civil Aspects of International Child Abduction, if that |
12 | convention is in effect between the United States and the |
13 | destination country, unless one of the parties objects; |
14 | and |
15 | (iv) a written waiver under the Privacy Act, 5 |
16 | U.S.C. § 552a (relating to records maintained on |
17 | individuals), with respect to any document, application |
18 | or other information pertaining to the child authorizing |
19 | its disclosure to the court and the petitioner; and |
20 | (6) upon the petitioner's request, a requirement that |
21 | the respondent obtain an order from the relevant foreign |
22 | country containing terms identical to the child custody |
23 | determination issued in the United States. |
24 | (d) Conditions on custody and visitation.--In an abduction |
25 | prevention order, the court may impose conditions on the |
26 | exercise of custody or visitation that: |
27 | (1) limit visitation or require that visitation with the |
28 | child by the respondent be supervised until the court finds |
29 | that supervision is no longer necessary and order the |
30 | respondent to pay the costs of supervision; |
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1 | (2) require the respondent to post a bond or provide |
2 | other security in an amount sufficient to serve as a |
3 | financial deterrent to abduction, the proceeds of which may |
4 | be used to pay for the reasonable expenses of recovery of the |
5 | child, including reasonable attorney fees and costs if there |
6 | is an abduction; and |
7 | (3) require the respondent to obtain education on the |
8 | potentially harmful effects to the child from abduction. |
9 | (e) Prevention of imminent abduction.--To prevent imminent |
10 | abduction of a child, a court may: |
11 | (1) issue a warrant to take physical custody of the |
12 | child under section 5209 (relating to warrant to take |
13 | physical custody of child) or the laws of this Commonwealth |
14 | other than this chapter; |
15 | (2) direct the use of law enforcement to take any action |
16 | reasonably necessary to locate the child, obtain return of |
17 | the child or enforce a custody determination under this |
18 | chapter or the laws of this Commonwealth other than this |
19 | chapter; or |
20 | (3) grant any other relief allowed under the laws of |
21 | this Commonwealth other than this chapter. |
22 | (f) Cumulative remedies.--The remedies provided in this |
23 | chapter are cumulative and do not affect the availability of |
24 | other remedies to prevent abduction. |
25 | § 5209. Warrant to take physical custody of child. |
26 | (a) Ex parte.--If a petition under this chapter contains |
27 | allegations and the court finds that there is a credible risk |
28 | that the child is imminently likely to be wrongfully removed, |
29 | the court may issue an ex parte warrant to take physical custody |
30 | of the child. |
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1 | (b) Hearing.--The respondent on a petition under subsection |
2 | (a) must be afforded an opportunity to be heard at the earliest |
3 | possible time after the ex parte warrant is executed, but not |
4 | later than the next judicial day unless a hearing on that date |
5 | is impossible. In that event, the court shall hold the hearing |
6 | on the first judicial day possible. |
7 | (c) Requirements.--An ex parte warrant under subsection (a) |
8 | to take physical custody of a child must: |
9 | (1) Recite the facts upon which a determination of a |
10 | credible risk of imminent wrongful removal of the child is |
11 | based. |
12 | (2) Direct law enforcement officers to take physical |
13 | custody of the child immediately. |
14 | (3) State the date and time for the hearing on the |
15 | petition. |
16 | (4) Provide for the safe interim placement of the child |
17 | pending further order of the court. |
18 | (d) Search of databases.--If feasible, before issuing a |
19 | warrant and before determining the placement of the child after |
20 | the warrant is executed, the court may order a search of the |
21 | relevant databases of the National Crime Information Center |
22 | system and similar state databases to determine if either the |
23 | petitioner or respondent has a history of domestic violence, |
24 | stalking or child abuse or neglect. |
25 | (e) Service.--The petition and warrant must be served on the |
26 | respondent when or immediately after the child is taken into |
27 | physical custody. |
28 | (f) Enforcement.-- |
29 | (1) A warrant to take physical custody of a child, |
30 | issued by this Commonwealth or another state, is enforceable |
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1 | throughout this Commonwealth. |
2 | (2) If the court finds that a less intrusive remedy will |
3 | not be effective, it may authorize law enforcement officers |
4 | to enter private property to take physical custody of the |
5 | child. If required by exigent circumstances, the court may |
6 | authorize law enforcement officers to make a forcible entry |
7 | at any hour. |
8 | (g) Fees and costs.--If the court finds, after a hearing, |
9 | that a petitioner sought an ex parte warrant under subsection |
10 | (a) for the purpose of harassment or in bad faith, the court may |
11 | award the respondent reasonable attorney fees, costs and |
12 | expenses. |
13 | (h) Other relief.--This chapter does not affect the |
14 | availability of relief allowed under the laws of this |
15 | Commonwealth other than this chapter. |
16 | § 5210. Duration of abduction prevention order. |
17 | An abduction prevention order remains in effect until the |
18 | earliest of: |
19 | (1) the time stated in the order; |
20 | (2) the emancipation of the child; |
21 | (3) the child's attaining 18 years of age; or |
22 | (4) the time the order is modified, revoked, vacated or |
23 | superseded by a court with jurisdiction under sections 5421 |
24 | (relating to initial child custody jurisdiction), 5422 |
25 | (relating to exclusive, continuing jurisdiction) and 5423 |
26 | (relating to jurisdiction to modify determination) and |
27 | applicable laws of this Commonwealth. |
28 | § 5211. Uniformity of application and construction. |
29 | In applying and construing this chapter, consideration must |
30 | be given to the need to promote uniformity of the law with |
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1 | respect to its subject matter among states that enact it. |
2 | § 5212. Relation to Electronic Signatures in Global and |
3 | National Commerce Act. |
4 | To the extent permitted by section 102 of the Electronic |
5 | Signatures in Global and National Commerce Act (Public Law |
6 | 106-229, 15 U.S.C. § 7002), this chapter may supersede |
7 | provisions of that act. |
8 | Section 2. This act shall take effect in 60 days. |
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