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| PRIOR PRINTER'S NO. 2027 | PRINTER'S NO. 2387 |
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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, LEACH AND FARNESE, MARCH 20, 2012 |
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| SENATOR CORMAN, APPROPRIATIONS, RE-REPORTED AS AMENDED, SEPTEMBER 24, 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. |
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1 | 5208. Provisions and measures to prevent abduction. |
2 | 5209. Warrant to take physical custody of child. |
3 | 5210. Duration of abduction prevention order. |
4 | 5211. Uniformity of application and construction. |
5 | 5212. Relation to Electronic Signatures in Global and National |
6 | Commerce Act. |
7 | § 5201. Scope of chapter. |
8 | This chapter relates to uniform child abduction prevention. |
9 | § 5202. Definitions. |
10 | The following words and phrases when used in this chapter |
11 | shall have the meanings given to them in this section unless the |
12 | context clearly indicates otherwise: |
13 | "Abduction." The wrongful removal or wrongful retention of a |
14 | child. |
15 | "Child." An unemancipated individual who is under 18 years |
16 | of age. |
17 | "Child custody determination." Any judgment, decree or other |
18 | order of a court providing for the legal custody, physical |
19 | custody or visitation with respect to a child. The term includes |
20 | a permanent, temporary, initial and modification order. |
21 | "Child custody proceeding." A proceeding in which legal |
22 | custody, physical custody or visitation with respect to a child |
23 | is at issue. The term includes a proceeding for divorce, |
24 | dissolution of marriage, separation, neglect, abuse, dependency, |
25 | guardianship, paternity, termination of parental rights or |
26 | protection from domestic violence. |
27 | "Court." An entity authorized under the law of a state to |
28 | establish, enforce or modify a child custody determination. |
29 | "Petition." A motion or its equivalent. |
30 | "Record." Information that is inscribed on a tangible medium |
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1 | or that is stored in an electronic or other medium and is |
2 | retrievable in perceivable form. |
3 | "State." A state of the United States, the District of |
4 | Columbia, Puerto Rico, the Virgin Islands or any territory or |
5 | insular possession subject to the jurisdiction of the United |
6 | States. The term includes a federally recognized Indian tribe or |
7 | nation. |
8 | "Travel document." Records relating to a travel itinerary, |
9 | including travel tickets, passes, reservations for |
10 | transportation or accommodations. The term does not include a |
11 | passport or visa. |
12 | "Wrongful removal." The taking of a child that breaches |
13 | rights of custody or visitation given or recognized under the |
14 | laws of this Commonwealth. |
15 | "Wrongful retention." The keeping or concealing of a child |
16 | that breaches rights of custody or visitation given or |
17 | recognized under the laws of this Commonwealth. |
18 | § 5203. Cooperation and communication among courts. |
19 | Sections 5410 (relating to communication between courts), |
20 | 5411 (relating to taking testimony in another state) and 5412 |
21 | (relating to cooperation between courts; preservation of |
22 | records) apply to cooperation and communications among courts in |
23 | proceedings under this chapter. |
24 | § 5204. Actions for abduction prevention measures. |
25 | (a) Court.--A court on its own motion may order abduction |
26 | prevention measures in a child custody proceeding if the court |
27 | finds that the evidence establishes a credible risk of abduction |
28 | of the child. |
29 | (b) Party.--A party to a child custody determination or |
30 | another individual or entity having a right under the laws of |
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1 | this Commonwealth or any other state to seek a child custody |
2 | determination for the child may file a petition seeking |
3 | abduction prevention measures to protect the child under this |
4 | chapter. |
5 | (c) Prosecutors or public officials.--A prosecutor or public |
6 | authority designated under section 5455 (relating to role of |
7 | prosecutor or public official) may seek a warrant to take |
8 | physical custody of a child under section 5209 (relating to |
9 | warrant to take physical custody of child) or other appropriate |
10 | prevention measures. |
11 | § 5205. Jurisdiction. |
12 | (a) General rule.--A petition under this chapter may be |
13 | filed only in a court that has jurisdiction to make a child |
14 | custody determination with respect to the child at issue under |
15 | Chapter 54 (relating to uniform child custody jurisdiction and |
16 | enforcement). |
17 | (b) Emergency jurisdiction.--A court of this Commonwealth |
18 | has temporary emergency jurisdiction under section 5424 |
19 | (relating to temporary emergency jurisdiction) if the court |
20 | finds a credible risk of abduction. |
21 | § 5206. Contents of petition. |
22 | A petition under this chapter must be verified and include a |
23 | copy of any existing child custody determination, if available. |
24 | The petition must specify the risk factors for abduction, |
25 | including the relevant factors described under section 5207 |
26 | (relating to factors to determine risk of abduction). Subject to |
27 | section 5429(e) (relating to information to be submitted to |
28 | court), if reasonably ascertainable, the petition must contain: |
29 | (1) the name, date of birth and gender of the child; |
30 | (2) the customary address and current physical location |
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1 | of the child; |
2 | (3) the identity, customary address and current physical |
3 | location of the respondent; |
4 | (4) a statement of whether a prior action to prevent |
5 | abduction or domestic violence has been filed by a party or |
6 | other individual or entity having custody of the child and |
7 | the date, location and disposition of the action; |
8 | (5) a statement of whether a party to the proceeding has |
9 | been arrested for a crime related to domestic violence, |
10 | stalking or child abuse or neglect and the date, location and |
11 | disposition of the case; and |
12 | (6) any other information required to be submitted to |
13 | the court for a child custody determination under section |
14 | 5429. |
15 | § 5207. Factors to determine risk of abduction. |
16 | (a) Evidence supporting risk.--In determining whether there |
17 | is a credible risk of abduction of a child, the court shall |
18 | consider any evidence that the petitioner or respondent: |
19 | (1) has previously abducted or attempted to abduct the |
20 | child; |
21 | (2) has threatened to abduct the child; |
22 | (3) has recently engaged in activities that may indicate |
23 | a planned abduction, including: |
24 | (i) abandoning employment; |
25 | (ii) selling a primary residence; |
26 | (iii) terminating a lease; |
27 | (iv) closing bank or other financial management |
28 | accounts, liquidating assets, hiding or destroying |
29 | financial documents or conducting any unusual financial |
30 | activities; |
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1 | (v) applying for a passport or visa or obtaining |
2 | travel documents for the respondent, a family member or |
3 | the child; or |
4 | (vi) seeking to obtain the child's birth certificate |
5 | or school or medical records; |
6 | (4) has engaged in domestic violence, stalking or child |
7 | abuse or neglect; |
8 | (5) has refused to follow a child custody determination; |
9 | (6) lacks strong familial, financial, emotional or |
10 | cultural ties to this Commonwealth or the United States; |
11 | (7) has strong familial, financial, emotional or |
12 | cultural ties to another state or country; |
13 | (8) is likely to take the child to a country that: |
14 | (i) is not a party to the Hague Convention on the |
15 | Civil Aspects of International Child Abduction and does |
16 | not provide for the extradition of an abducting parent or |
17 | for the return of an abducted child; |
18 | (ii) is a party to the Hague Convention on the Civil |
19 | Aspects of International Child Abduction but: |
20 | (A) the Hague Convention on the Civil Aspects of |
21 | International Child Abduction is not in force between |
22 | the United States and that country; |
23 | (B) according to the most recent compliance |
24 | report issued by the United States Department of |
25 | State, is noncompliant; or |
26 | (C) lacks legal mechanisms for immediately and |
27 | effectively enforcing a return order under the Hague |
28 | Convention on the Civil Aspects of International |
29 | Child Abduction; |
30 | (iii) poses a risk that the child's physical or |
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1 | emotional health or safety would be endangered in the |
2 | country because of specific circumstances relating to the |
3 | child or because of human rights violations committed |
4 | against children; |
5 | (iv) has laws or practices that would: |
6 | (A) enable the respondent, without due cause, to |
7 | prevent the petitioner from contacting the child; |
8 | (B) restrict the petitioner from freely |
9 | traveling to or exiting from the country because of |
10 | the petitioner's gender, nationality, marital status |
11 | or religion; or |
12 | (C) restrict the child's ability legally to |
13 | leave the country after the child reaches the age of |
14 | majority because of a child's gender, nationality or |
15 | religion; |
16 | (v) is included by the United States Department of |
17 | State on a current list of state sponsors of terrorism; |
18 | (vi) does not have an official United States |
19 | diplomatic presence in the country; or |
20 | (vii) is engaged in active military action or war, |
21 | including a civil war, to which the child may be exposed; |
22 | (9) is undergoing a change in immigration or citizenship |
23 | status that would adversely affect the respondent's ability |
24 | to remain in the United States legally; |
25 | (10) has had an application for United States |
26 | citizenship denied; |
27 | (11) has forged or presented misleading or false |
28 | evidence on government forms or supporting documents to |
29 | obtain or attempt to obtain a passport, a visa, travel |
30 | documents, a Social Security card, a driver's license or |
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1 | other government-issued identification card or has made a |
2 | misrepresentation to the United States Government; |
3 | (12) has used multiple names to attempt to mislead or |
4 | defraud; or |
5 | (13) has engaged in any other conduct the court |
6 | considers relevant to the risk of abduction. |
7 | (b) Good faith.--In the hearing on a petition under this |
8 | chapter, the court shall consider any evidence that the |
9 | respondent believed in good faith that the respondent's conduct |
10 | was necessary to avoid imminent harm to the child or respondent |
11 | and any other evidence that may be relevant to whether the |
12 | respondent may be permitted to remove or retain the child. |
13 | § 5208. Provisions and measures to prevent abduction. |
14 | (a) Contents of discretionary orders.--If a petition is |
15 | filed under this chapter, the court may enter an order that must |
16 | include: |
17 | (1) the basis for the court's exercise of jurisdiction; |
18 | (2) the manner in which notice and opportunity to be |
19 | heard were given to the persons entitled to notice of the |
20 | proceeding; |
21 | (3) a detailed description of each party's custody and |
22 | visitation rights and residential arrangements for the child; |
23 | (4) a provision stating that a violation of the order |
24 | may subject the party in violation to civil and criminal |
25 | penalties; and |
26 | (5) identification of the child's country of habitual |
27 | residence at the time of the issuance of the order. |
28 | (b) Abduction prevention orders.-- |
29 | (1) If, at a hearing on a petition under this chapter or |
30 | on the court's own motion, the court after reviewing the |
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1 | evidence finds a credible risk of abduction of the child, the |
2 | court shall enter an abduction prevention order. |
3 | (2) The order must include the provisions required by |
4 | subsection (a) and measures and conditions, including those |
5 | in subsections (c), (d) and (e), that are reasonably |
6 | calculated to prevent abduction of the child, giving due |
7 | consideration to the custody and visitation rights of the |
8 | parties. |
9 | (3) The court shall consider: |
10 | (i) the age of the child; |
11 | (ii) the potential harm to the child from an |
12 | abduction; |
13 | (iii) the legal and practical difficulties of |
14 | returning the child to the jurisdiction if abducted; and |
15 | (iv) the reasons for the potential abduction, |
16 | including evidence of domestic violence, stalking or |
17 | child abuse or neglect. |
18 | (c) Restrictions.--An abduction prevention order may include |
19 | one or more of the following: |
20 | (1) an imposition of travel restrictions that require |
21 | that a party traveling with the child outside a designated |
22 | geographical area provide the other party with the following: |
23 | (i) the travel itinerary of the child; |
24 | (ii) a list of physical addresses and telephone |
25 | numbers at which the child can be reached at specified |
26 | times; and |
27 | (iii) copies of all travel documents; |
28 | (2) a prohibition of the respondent directly or |
29 | indirectly: |
30 | (i) removing the child from this Commonwealth, the |
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1 | United States or another geographic area without |
2 | permission of the court or the petitioner's written |
3 | consent; |
4 | (ii) removing or retaining the child in violation of |
5 | a child custody determination; |
6 | (iii) removing the child from school or a child-care |
7 | or similar facility; or |
8 | (iv) approaching the child at any location other |
9 | than a site designated for supervised visitation; |
10 | (3) a requirement that a party register the order in |
11 | another state as a prerequisite to allowing the child to |
12 | travel to that state; |
13 | (4) with regard to the child's passport: |
14 | (i) a direction that the petitioner place the |
15 | child's name in the United States Department of State's |
16 | Child Passport Issuance Alert Program; |
17 | (ii) a requirement that the respondent surrender to |
18 | the court or the petitioner's attorney any United States |
19 | or foreign passport issued in the child's name, including |
20 | a passport issued in the name of both the parent and the |
21 | child; and |
22 | (iii) a prohibition upon the respondent from |
23 | applying on behalf of the child for a new or replacement |
24 | passport or visa; |
25 | (5) as a prerequisite to exercising custody or |
26 | visitation, a requirement that the respondent provide: |
27 | (i) to the United States Department of State Office |
28 | of Children's Issues and the relevant foreign consulate |
29 | or embassy, an authenticated copy of the order detailing |
30 | passport and travel restrictions for the child; |
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1 | (ii) to the court: |
2 | (A) proof that the respondent has provided the |
3 | information in subparagraph (i); and |
4 | (B) an acknowledgment in a record from the |
5 | relevant foreign consulate or embassy that no |
6 | passport application has been made or passport issued |
7 | on behalf of the child; |
8 | (iii) to the petitioner, proof of registration with |
9 | the United States Embassy or other United States |
10 | diplomatic presence in the destination country and with |
11 | the Central Authority for the Hague Convention on the |
12 | Civil Aspects of International Child Abduction, if that |
13 | convention is in effect between the United States and the |
14 | destination country, unless one of the parties objects; |
15 | and |
16 | (iv) a written waiver under the Privacy Act, 5 |
17 | U.S.C. § 552a (relating to records maintained on |
18 | individuals), with respect to any document, application |
19 | or other information pertaining to the child authorizing |
20 | its disclosure to the court and the petitioner; and |
21 | (6) upon the petitioner's request, a requirement that |
22 | the respondent obtain an order from the relevant foreign |
23 | country containing terms identical to the child custody |
24 | determination issued in the United States. |
25 | (d) Conditions on custody and visitation.--In an abduction |
26 | prevention order, the court may impose conditions on the |
27 | exercise of custody or visitation that: |
28 | (1) limit visitation or require that visitation with the |
29 | child by the respondent be supervised until the court finds |
30 | that supervision is no longer necessary and order the |
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1 | respondent to pay the costs of supervision; |
2 | (2) require the respondent to post a bond or provide |
3 | other security in an amount sufficient to serve as a |
4 | financial deterrent to abduction, the proceeds of which may |
5 | be used to pay for the reasonable expenses of recovery of the |
6 | child, including reasonable attorney fees and costs if there |
7 | is an abduction; and |
8 | (3) require the respondent to obtain education on the |
9 | potentially harmful effects to the child from abduction. |
10 | (e) Prevention of imminent abduction.--To prevent imminent |
11 | abduction of a child, a court may: |
12 | (1) issue a warrant to take physical custody of the |
13 | child under section 5209 (relating to warrant to take |
14 | physical custody of child) or the laws of this Commonwealth |
15 | other than this chapter; |
16 | (2) direct the use of law enforcement to take any action |
17 | reasonably necessary to locate the child, obtain return of |
18 | the child or enforce a custody determination under this |
19 | chapter or the laws of this Commonwealth other than this |
20 | chapter; or |
21 | (3) grant any other relief allowed under the laws of |
22 | this Commonwealth other than this chapter. |
23 | (f) Cumulative remedies.--The remedies provided in this |
24 | chapter are cumulative and do not affect the availability of |
25 | other remedies to prevent abduction. |
26 | § 5209. Warrant to take physical custody of child. |
27 | (a) Ex parte.--If a petition under this chapter contains |
28 | allegations and the court finds that there is a credible risk |
29 | that the child is imminently likely to be wrongfully removed, |
30 | the court may issue an ex parte warrant to take physical custody |
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1 | of the child. |
2 | (b) Hearing.--The respondent on a petition under subsection |
3 | (a) must be afforded an opportunity to be heard at the earliest |
4 | possible time after the ex parte warrant is executed, but not |
5 | later than the next judicial day unless a hearing on that date |
6 | is impossible. In that event, the court shall hold the hearing |
7 | on the first judicial day possible. |
8 | (c) Requirements.--An ex parte warrant under subsection (a) |
9 | to take physical custody of a child must: |
10 | (1) Recite the facts upon which a determination of a |
11 | credible risk of imminent wrongful removal of the child is |
12 | based. |
13 | (2) Direct law enforcement officers to take physical |
14 | custody of the child immediately. |
15 | (3) State the date and time for the hearing on the |
16 | petition. |
17 | (4) Provide for the safe interim placement of the child |
18 | pending further order of the court. |
19 | (d) Search of databases.--If feasible, before issuing a |
20 | warrant and before determining the placement of the child after |
21 | the warrant is executed, the court may order a search of the |
22 | relevant databases of the National Crime Information Center |
23 | system and similar state databases to determine if either the |
24 | petitioner or respondent has a history of domestic violence, |
25 | stalking or child abuse or neglect. |
26 | (e) Service.--The petition and warrant must be served on the |
27 | respondent when or immediately after the child is taken into |
28 | physical custody. |
29 | (f) Enforcement.-- |
30 | (1) A warrant to take physical custody of a child, |
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1 | issued by this Commonwealth or another state, is enforceable |
2 | throughout this Commonwealth. |
3 | (2) If the court finds that a less intrusive remedy will |
4 | not be effective, it may authorize law enforcement officers |
5 | to enter private property to take physical custody of the |
6 | child. If required by exigent circumstances, the court may |
7 | authorize law enforcement officers to make a forcible entry |
8 | at any hour. |
9 | (g) Fees and costs.--If the court finds, after a hearing, |
10 | that a petitioner sought an ex parte warrant under subsection |
11 | (a) for the purpose of harassment or in bad faith, the court may |
12 | award the respondent reasonable attorney fees, costs and |
13 | expenses. |
14 | (h) Other relief.--This chapter does not affect the |
15 | availability of relief allowed under the laws of this |
16 | Commonwealth other than this chapter. |
17 | § 5210. Duration of abduction prevention order. |
18 | An abduction prevention order remains in effect until the |
19 | earliest of: |
20 | (1) the time stated in the order; |
21 | (2) the emancipation of the child; |
22 | (3) the child's attaining 18 years of age; or |
23 | (4) the time the order is modified, revoked, vacated or |
24 | superseded by a court with jurisdiction under sections 5421 |
25 | (relating to initial child custody jurisdiction), 5422 |
26 | (relating to exclusive, continuing jurisdiction) and 5423 |
27 | (relating to jurisdiction to modify determination) and |
28 | applicable laws of this Commonwealth. |
29 | § 5211. Uniformity of application and construction. |
30 | In applying and construing this chapter, consideration must |
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1 | be given to the need to promote uniformity of the law with |
2 | respect to its subject matter among states that enact it. |
3 | § 5212. Relation to Electronic Signatures in Global and |
4 | National Commerce Act. |
5 | To the extent permitted by section 102 of the Electronic |
6 | Signatures in Global and National Commerce Act (Public Law |
7 | 106-229, 15 U.S.C. § 7002), this chapter may supersede |
8 | provisions of that act. |
9 | Section 2. This act shall take effect in 60 90 days. | <-- |
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