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Understanding and Using UCAPA to Prevent Child Abduction

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Understanding and Using UCAPA to Prevent Child Abduction “UU” UCAPA: Understanding and Using UCAPA to Prevent Child Abduction PATRICIA M. HOFF* The National Conference of Commissioners on Uniform State Laws (NCCUSL) has been engaged in crafting uniform law to deter child abduction for nearly forty years, beginning in 1968 with the Uniform Child Custody Jurisdiction Act (UCCJA), continuing in 1997 with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and culminating most recently with the Uniform Child Abduction Prevention Act (UCAPA or Act),1 which NCCUSL approved and recom- mended for enactment at its annual conference in July 2006. The response to UCAPA has been swift and favorable, as evidenced by its enactment in six states and introduction in five other legislatures.2 The American Bar Association House of Delegates endorsed the Act in February 2007. * © 2007 Patricia M. Hoff. All rights reserved. The author, a legal consultant and author- ity on interstate and international parental kidnapping law, participated in the UCAPA drafting process as an observer and consultant on behalf of the Office of Juvenile Justice and Delinquency Prevention of the U.S. Department of Justice and Fox Valley Technical College. The views she expressed were her own and did not necessarily represent the official position of either entity. Ms. Hoff’s involvement began with the submission of extensive comments and recommendations on the January 10, 2006 Master Draft, and continued through final approval of the Act. 1. UCAPA can be found online at NCCUSL’s Web site. Visit www.nccusl.org. From the homepage, click the “Final Acts & Legislation” link. In the “Select an Act Title” box, choose “Child Abduction Prevention.” On the next page, click “Final Act.” UCAPA is also available directly at http://www.law.upenn.edu/bll/ulc/ucapa/2006_finalact.htm. 2. Enacted in Colorado (COLO. REV. STAT. § 14-13.5-101 et seq.); Kansas (not yet codified nor section assigned); Nebraska (NEB. REV. STAT. § 43-1230 et seq.); Nevada (will be Chapter 11 but not yet assigned a section); South Dakota (not yet codified nor section assigned); and Utah (UTAH CODE ANN. § 78-62-101 et seq.). Introduced in legislative sessions in Connecticut, Louisiana, South Carolina, Texas and U.S. Virgin Islands. “Bill tracing” is available at NCCUSL’s Web site at http://www.nccusl.org/Update/Act SearchResults.aspx 1 2 Family Law Quarterly, Volume 41, Number 1, Spring 2007 The Act takes a new approach to preventing child abduction. Whereas the jurisdictional criteria of the UCCJA and UCCJEA, and the UCCJEA’s expedited enforcement mechanisms, remove legal incentives parents once had to kidnap their children, UCAPA helps judges identify children at risk of abduction, and provides a cascade of alternative prevention measures from which to fashion an appropriate prevention order. Novelty aside, the Act piggybacks on numerous of its predecessors’ provisions.3 Most notably, proceedings under UCAPA must be brought in courts having child custody jurisdiction with respect to the at-risk child. This article begins with a brief description of how this uniform law was developed (Constructing UCAPA), and continues with a user-friendly analysis of the Act (Deconstructing UCAPA). The article complements the Prefatory Notes and the Comments to the Act, both of which are recommended reading for UCAPA users.4 I. Constructing UCAPA Concerned about the high incidence of family abductions as reported in national incidence surveys5 and the harmful effects suffered by children,6 influenced by studies of abduction risk factors and prevention interven- 3. See UCAPA § 3 (Cooperation and Communication Among Courts), § 5 (Jurisdiction), § 6(6) (Contents of Petition, and § 10(4) (Duration of Abduction Prevention Order). See also UCAPA § 2 (Definitions) and accompanying comment (“To the extent possible, the definitions track the Uniform Child Custody Jurisdiction and Enforcement Act.”). 4. The Prefatory Note and Comments are in the “Final Act,” which is available online. See supra note 1. 5. The Office of Juvenile Justice and Delinquency Prevention commissioned two inci- dence studies, referred to as “NISMART-1” (D. Finkelhor, G. Hotaling, and A. Sedlak, Missing, Abducted, Runaway, and Thrownaway Children in America. First Report: Numbers and Characteristics National Incidence Studies, 1990, and “NISMART-2” (Heather Hammer, David Finkelhor, and Andrea Sedlak, Missing, Abducted, Runaway, and Thrownaway Children in America, October 2002, Children Abducted by Family Members: National Estimates and Characteristics. NISMART-2 estimated that 203,900 children were victims of a family abduc- tion in 1999. Among these, 117,200 were missing from their caretakers, and, of these, an estimated 56,500 were reported to authorities for assistance in locating the children. The study recommended focusing prevention efforts on younger children who are at greater risk of fami- ly abduction, especially those who do not live with both biological parents. NISMART-2 is available at http://www.ncjrs.gov/pdffiles1/ ojjdp/196466.pdf. 6. See generally Prefatory Note, n.2, supra note 4; PATRICIA M. HOFF,FAMILY ABDUCTION: PREVENTION AND RESPONSE (National Center for Missing & Exploited Children, 5th ed. 2002), [hereinafter cited as FAMILY ABDUCTION]. In FAMILY ABDUCTION, see chapters titled Psychological Issues in Recovery and Family Reunification (JoAnn Behrman-Lippert & Christ Hatcher) and The Impact of Abduction on Children (Geoffrey L. Greif & Rebecca L. Hegar). FAMILY ABDUCTION is available at http://www.ncmec.org/en_US/publications/NC75.pdf. See also R. Hegar & G. Grief, Impact on Children of Abduction by a Parent: A Review of the Literature, 62(4) AM. J. ORTHOPSYCHIATRY 599 (1992). Using UCAPA to Prevent Child Abduction 3 tions,7 and inspired by nascent state abduction prevention legislation,8 NCCUSL appointed a drafting committee to write a model or uniform law to prevent international child abduction. The legislation’s scope was promptly expanded to include domestic abductions,9 a change supported by research10 and reflected in the broader title of the final version of the Act. A detailed narrative about the committee’s origins and undertakings is found in the Prefatory Note to the August 24, 2004 draft11 of the then- titled “Standards for the Protection of Children From International Abduction Act.” Without a drafting committee and reporter, nothing would come of good ideas.12 In this case, NCCUSL selected Lyle W. Hillyard (Utah) as 7. Janet R. Johnston & Linda K. Girdner, Family Abductors: Descriptive Profiles and Preventive Interventions (JUV. JUST. BULL.) (OJJDP Jan. 2001), available at http:// www.ncjrs.gov/pdffiles1/ojjdp/182788.pdf; J. Johnston, Inger Sagatun-Edwards, Martha-Elin Blomquist, and L. Girdner, Early Identification of Risk Factors for Parental Abduction (JUV. JUST. BULL.) (OJJDP Mar. 2001), available at http://www.ncjrs.gov/pdffiles1/ojjdp/185026.pdf. 8. In June 2003, Texas enacted a child abduction prevention law, TEX. FAM. CODE §§ 153.501–153.503. Two months later, in August 2003, NCCUSL took the first step toward draft- ing similar law. See infra note 11. Before UCAPA was completed, four other states had enact- ed abduction prevention laws: California (CAL. FAM. CODE § 3408 (2004)), Arkansas (ARK. CODE ANN. §§ 9-13-401 to -407 (2005)), Florida (FLA. STAT. § 61.45 (2005)), and Oregon (OR. REV. STAT. § 109.035) (2005). 9. See infra note 11. 10. See FINAL REPORT: OBSTACLES TO THE RECOVERY AND RETURN OF PARENTALLY ABDUCTED CHILDREN (Linda Girdner & Patricia Hoff eds., 1993), [hereinafter cited as OBSTACLES REPORT] (recommending that state legislatures should pass statutes to prevent parental abductions and to require flagging of school and birth records, Research Summary at 13). The OBSTACLES REPORT (NCJ-188063), including its Appendices (NCJ-188062) and Research Summary (NCJ-143458), may be ordered from the Juvenile Justice Clearinghouse at 1-800-638-8736 or online at www.ncjrs.gov. See also GUIDE TO GOOD PRACTICE UNDER THE HAGUE CONVENTION OF 25 OCTOBER, 1980 ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ADDUCTION, PART III: PREVENTIVE MEASURES, HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW (2005) [hereinafter cited as GUIDE TO GOOD PRACTICE) (suggesting the types of preventive measures that States might consider adopting in order to reduce the incidence of child abduc- tion), available at http://www.hcch.net/upload/abdguideiii_e.pdf. 11. The August 24, 2004 draft is available from NCCUSL’s Web site. Go to http://www. nccusl.org/Update/CommitteeSearchResults.aspx?committee=236. Click the link for “Sept- ember 2004 Meeting Draft.” It is also accessible directly at http://www.law.upenn.edu/bll/ulc/ spciaa/Sept2004MtgDraft.htm. The Prefatory Note explains: In August 2003, the National Conference of Commissioners on Uniform State Laws appointed a study com- mittee to explore the feasibility of a uniform law to prevent international child abduction. The possible scope of the project was discussed at a meeting of the Joint Editorial Board for Uniform Family Law Acts on October 18, 2003. The Joint Editorial Board urged the NCCUSL Committee on Scope and Program to recommend the rapid creation of a drafting committee in this area. The initial mandate to the committee was: Resolved, that a drafting committee on the Prevention of Child Abduction in International Custody Disputes be approved by the Committee on Scope and Program to draft model or uniform legislation in this area, with an initial scope as suggested in this report. NCCUSL expanded the drafting committee’s
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