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Predecessor to UCCJEA had been enacted by all 50 states by 1981 revised statute. UCCJEA passed in Utah in 2000. PKPA- Parental Kidnapping Prevention Act.

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Presentation on theme: "Predecessor to UCCJEA had been enacted by all 50 states by 1981 revised statute. UCCJEA passed in Utah in 2000. PKPA- Parental Kidnapping Prevention Act."— Presentation transcript:

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2 Predecessor to UCCJEA had been enacted by all 50 states by 1981 revised statute. UCCJEA passed in Utah in PKPA- Parental Kidnapping Prevention Act 28 U.S.C 1738A 2

3 To resolve jurisdictional disputes in child custody matters and discourage the wrongful removal and retention of children for the purpose of obtaining a judicial advantage. Significant difficulties in actual practice continue. Particularly for the purposes of making an initial child custody determination. 3

4 Hague convention on the Civil aspects in Internal Child Abductions Remedy Act ( Found at 12 USC et seq) 1988, created a civil mechanism for the return of children removed or returned abroad. Complex system which courts and practitioners were forced to navigate. 4

5 Found in the Utah Code Annotated 76B There are 3 major sections 1. Definitions /Application 2. Jurisdiction 3. Enforcement 5

6 Necessary Inquiry when either a court or practitioner receives a case involving a child custody determination, which is defined as a proceeding in which legal custody, physical custody, or parent time with respect to a child is an issue. The term includes : Divorce Separation Neglect Abuse Dependency Guardianship Paternity Termination of parental rights Protection from domestic violence, in which the issue may appear. 78B (4) 6

7 Is there an existing child custody order from another state of foreign country. What is the residency status of all parties. What is the home state of the child 78B (7) 7

8 Utah court only has jurisdiction to make an initial child custody determination if: a) Home state of child now or home state within 6 months before start of the current proceeding AND parent or someone acting is a parent still live in Utah OR b) Another court doesn’t already have jurisdiction or that home state declines to exercise jurisdiction, as Utah is the more appropriate forum. AND 8

9 The child and at least one parent have a significant connection with Utah, other than mere physical presence and substantial evidence in available in this state concerning child’s care, protection etc. OR c) Other states courts must decline jurisdiction on the grounds of inconvenient forum OR d)No other state has jurisdiction 9

10 Once a child custody determination is made, an issuing state keeps exclusive continuing jurisdiction until it declines to have it anymore Is your determination of jurisdiction over? NO 10

11 1) Jurisdiction to modify another state’s order Not unless Utah can make initial determination OR Court in other state determines it no longer has jurisdiction or other court determines Utah is a more convenient forum. OR A court of this state or the other state determines neither the child or either parent presently resides in the other state. 11

12 2) Emergency jurisdiction 78B Criteria: Child present in state Child has been abandoned or either the child sibling or parent of the child is subjected to or threatened with mistreatment or abuse. Emergency actions by DCFS and the ability to have a Utah Court enter either a child or adult protective order. 12

13 General Principals Adopted to protect children internationally from the harmful effects of their wrongful removal or retention. Establish procedures to ensure prompt return as well as secure protection from rights of access Prompt return means no more than 6 weeks between filing and decision. 13

14 Overriding Function Make a decision whether a child should be returned to the country of the complaining parent. (Where is the habitual residence of the child?) DOES NOT govern merits of the dispute OR Look at long term best interest of child/children. 14

15 Burden on petitioner to show breach of rights to custody. Petition is adjudicated using a preponderance of the evidence standard. IF petitioner succeeds child must be returned to country of habitual residence. 15

16 UNLESS respondent demonstrates one of four exception applies. 1.Grave Risk to child which would expose child to physical or psychological harm or otherwise place in an intolerable situation. 2.Cases look at extreme circumstances i.e. war or famine in country of habitual residence. OR 3.Child would suffer serious abuse-example: returning child to custodial parent would had sexually abused them. OR substantial substance or spousal abuse problem AND The country’s courts were incapable or unwilling to adequately protect child. 16

17 1. Does the UCCJEA apply to Indian children? A. Yes. A child custody proceeding that pertains to an Indian child as defined in ICWA (25 U.S.C 1901 et seq.) Is not subject to this chapter to the extent that it is governed by ICWA. BUT A tribe shall be treated as a state and child custody determination made by a tribe under circumstances in substantial conformity with the standards of this chapter shall be recognized and enforced. 78B

18 2)Can Utah issue an initial custody determination if no state meets the state requirement A.Yes (d) states that if no other state has jurisdiction, the Utah court may make an initial custody determination. 18

19 3)What if another state’s court enters a judgment which cannot be legally entered in a Utah court. Should the Utah court enforce that decision A.Yes. “The fact that a judgment entered by a foreign court could NOT, be entered in the New Mexico court… will not permit the courts of New Mexico to deny it full faith and credit.” Article IV, Section 1, US Constitution. 368 P2d at

20 4)Remember: UCCJEA does not apply to adoptions OR Child support. 5)Court Pleadings need to be specific, not just residency but as to any history of prior child custody determines by any other state or count 6)Registration of foreign decree 78B

21 1.Is the other country a signer of the Hague Convention 2.If yes, habitual residence needs to be determined. Hague Convention does not define the term. Cases concluded that it is the customary residence prior to the wrongful removal. 21

22 1.Meyers v. Meyers 196 P. 3d In the Interest of AM 208 P. 3d PKPA- Parental Kidnapping Prevention Act 28 USC 1738A 4. Proposed Rules of Juvenile Procedure URJP 36- Mandates a party raising the issue of support, custody or parent time to inform the court and parties of any orders from any other court. 22

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