Chapter
307
2003
-- S 0692
Enacted
07/17/03
AN ACT
RELATING TO DOMESTIC RELATIONS
- - CHILD CUSTODY
Introduced By: Senators Paiva-Weed,
Tassoni, Revens, Algiere, and McCaffrey
Date Introduced:
February 26, 2003
It is enacted by the General
Assembly as follows:
SECTION
1. Chapter 15-14 of the General Laws entitled "Child Custody" is
hereby
repealed in its entirety.
CHAPTER
14
Child Custody
15-14-1.
Short title -- This chapter may be cited as the "Uniform
Child Custody
Jurisdiction Act".
15-14-2.
Purpose -- Liberal construction -- (a) The general purposes of
this chapter are
to:
(1) Avoid jurisdictional competition and conflict with courts of other states
in matters of
child custody which have in the
past resulted in the shifting of children from state to state with
harmful effects on their
well-being;
(2) Promote cooperation with the courts of other states to the end that a
custody decree is
rendered in that state which can
decide the case in the best interest of the child;
(3) Assure that litigation concerning the custody of a child take place
ordinarily in the
state with which the child and
his or her family have the closest connection and where significant
evidence concerning his or her
care, protection, training, and personal relationships is most
readily available, and that
courts of this state decline the exercise of jurisdiction when the child
and his or her family have a
closer connection with another state;
(4) Discourage continuing controversies over child custody in the interest of
greater
stability of home environment
and of secure family relationships for the child;
(5) Deter abductions and other unilateral removals of children undertaken to obtain
custody awards;
(6) Avoid relitigation of custody decisions of other states in this state
insofar as feasible;
(7) Facilitate the enforcement of custody decrees of other states;
(8) Promote and expand the exchange of information and other forms of mutual
assistance between the courts of
this state and those of other states concerned with the same child;
and
(9) Make uniform the law of those states which enact it.
(b) This chapter shall be construed to promote the general purposes stated in
this section.
15-14-3.
Definitions -- As used in this chapter:
(1) "Court" shall mean the family court of the state of Rhode Island
and Providence
Plantations unless another
meaning is so indicated;
(2) "Custody determination" means a court decision and court orders
and instructions
providing for the custody of a
child, including visitation rights; it does not include a decision
relating to child support or any
other monetary obligation of any person;
(3) "Custody proceeding" includes proceedings in which a custody
determination is one
of several issues, such as an
action for divorce or separation, and includes child neglect and
dependency proceedings;
(4) "Decree" or "custody decree" means a custody determination
contained in a judicial
decree or order made in a
custody proceeding, and includes an initial decree and modification
decree;
(5) "Home state" means the state in which the child immediately
preceding the time
involved lived with his or her
parents, a parent, or person acting as parent, for at least six (6)
consecutive months, and in the
case of a child less than six (6) months old the state in which the
child lived from birth with any
of the persons mentioned. Periods of temporary absence of any of
the named persons are counted as
part of the six (6) month or other period;
(6) "Initial decree" means the first custody decree concerning a
particular child;
(7) "Modification decree" means a custody decree which modified or
replaced a prior
decree, whether made by the
court which rendered the prior decree or by another court;
(8) "Person acting as parent" means a person, other than a parent,
who has physical
custody of a child and who has
either been awarded custody by a court or claims a right to
custody;
(9) "Petitioner" means a person, including a parent, who claims a
right to custody or
visitation rights with respect
to a child;
(10) "Physical custody" means actual possession and control of a
child;
(11) "Respondent" means a person including a parent, or state agency,
who disputes the
actions of a petitioner claiming
a right to custody or visitation rights with respect to a child; and
(12) "State" means any state, territory, or possession of the United
States, the
Commonwealth of Puerto Rico, and
the District of Columbia.
15-14-4.
Jurisdiction -- (a) The family court has jurisdiction to make a
child custody
determination by initial or
modification decree if:
(1) The state of Rhode Island: (i) is the home state of the child at the time
of
commencement of the proceeding,
or (ii) had been the child's home state within six (6) months
before commencement of the
proceeding and the child is absent from Rhode Island because of his
or her removal or retention by a
person claiming his or her custody or for other reasons, and a
parent or person acting as
parent continues to live in Rhode Island; or
(2) It is in the best interest of the child that the family court assume
jurisdiction because:
(i) the child and his or her
parents, or the child and at least one party, have significant connection
with Rhode Island, and (ii)
there is available in Rhode Island substantial evidence concerning the
child's present or future care,
protection, training, and personal relationships; or
(3) The child is physically present in Rhode Island and: (i) the child has been
abandoned,
or (ii) it is necessary in an emergency
to protect the child because he or she has been subjected to
or threatened with mistreatment
or abuse or is otherwise neglected or dependent; or
(4) It appears that no other state would have jurisdiction under prerequisites
substantially
in accordance with subsection
(a)(1), (2), or (3), or another state has declined to exercise
jurisdiction on the ground that
Rhode Island is the more appropriate forum to determine the
custody of the child, and (ii)
it is in the best interest of the child that the family court assume
jurisdiction.
(b) Except under subdivisions (3) and (4) of subsection (a), physical presence
in Rhode
Island of the child, or of the
child and one of the parties, is not alone sufficient to confer
jurisdiction on the family court
to make a child custody determination.
(c) Physical presence of the child, while desirable, is not a prerequisite for
jurisdiction to
determine his or her custody.
15-14-5.
Notice and opportunity to be heard -- Before making a decree
under this
chapter, reasonable notice and
opportunity to be heard shall be given to the parties, any parent
whose parental rights have not
been previously terminated, and any person who has physical
custody of the child. If any of
these persons is outside Rhode Island, notice and opportunity to be
heard shall be given pursuant to
section 15-14-6.
15-14-6.
Notice to persons outside Rhode Island -- Submission to jurisdiction --
(a)
Notice required for the exercise
of jurisdiction over a person outside Rhode Island shall be given
in a manner reasonably
calculated to give actual notice, and may be:
(1) By personal delivery outside Rhode Island in the manner prescribed for
service of
process within this state;
(2) In the manner prescribed by law of the place in which the service is made
for service
of process in that place in an
action in any of its courts of general jurisdiction;
(3) By any form of mail addressed to the person to be served and requesting a
receipt; or
(4) As directed by the court (including publication, if other means of
notification are
ineffective).
(b) Notice under this section shall be served, mailed, or delivered, or last
published, at
least twenty (20) days before
any hearing in Rhode Island.
(c) Proof of service outside Rhode Island may be made by affidavit of the
individual who
made the service, or in the
manner prescribed by the law of Rhode Island, the order pursuant to
which the service is made, or
the law of the place in which the service is made. If service is made
by mail, proof may be a receipt
signed by the addressee or other evidence of delivery to the
addressee.
(d) Notice is not required if a person submits to the jurisdiction of the
court.
15-14-7.
Simultaneous proceedings in other states -- (a) The family court
shall not
exercise its jurisdiction under
this chapter if at the time of filing the petition a proceeding
concerning the custody of the
child was pending in a court of another state exercising jurisdiction
substantially in conformity with
this chapter, unless the proceeding is stayed by the court of the
other state because Rhode Island
is a more appropriate forum or for other reasons.
(b) Before hearing the petition in a custody proceeding the court shall examine
the
pleadings and other information
supplied by the parties under section 15-14-10 and shall consult
the child custody registry
established under section 15-14-17 concerning the pendency of
proceedings with respect to the
child in other states. If the court has reason to believe that
proceedings may be pending in
another state it shall direct an inquiry to the state court
administrator or other
appropriate official of the other state.
(c) If the court is informed during the course of the proceeding that a
proceeding
concerning the custody of the
child was pending in another state before the court assumed
jurisdiction it shall stay the
proceeding and communicate with the court in which the other
proceeding is pending to the end
that the issue may be litigated in the more appropriate forum and
that information be exchanged in
accordance with sections 15-14-20 through 15-14-23. If the
court has made a custody decree
before being informed of a pending proceeding in a court of
another state it shall
immediately inform that court of the fact. If the court is informed that a
proceeding was commenced in
another state after it assumed jurisdiction it shall likewise inform
the other court to the end that
the issues may be litigated in the more appropriate forum.
15-14-8.
Inconvenient forum -- (a) The family court may decline to
exercise its
jurisdiction any time before
making a decree if it finds that it is an inconvenient forum to make a
custody determination under the circumstances
of the case and that a court of another state is a
more appropriate forum.
(b) A finding of inconvenient forum may be made upon the court's own motion or
upon
motion of a party or guardian ad
litem or other representative of the child.
(c) In determining if it is an inconvenient forum, the court shall consider if
it is in the
interest of the child that
another state assume jurisdiction. For this purpose it may take into
account the following factors,
among others:
(1) If another state is or recently was the child's home state;
(2) If another state has a closer connection with the child and his or her
family or with
the child and one or more of the
parties;
(3) If substantial evidence concerning the child's present or future care,
protection,
training, and personal
relationships is more readily available in another state;
(4) If the parties have agreed on another forum which is no less appropriate;
and
(5) If the exercise of jurisdiction by a court of this state would contravene
any of the
purposes stated in section
15-14-2.
(d) Before determining whether to decline or retain jurisdiction the court may
communicate with a court of
another state and exchange information pertinent to the assumption
of jurisdiction by either court
with a view to assuring that jurisdiction will be exercised by the
more appropriate court and that
a forum will be available to the parties.
(e)
If the court finds that it is an inconvenient forum and that a court of another
state is a
more appropriate forum, it may
dismiss the proceeding, or it may stay the proceedings upon
condition that a custody
proceeding be promptly commenced in another named state or upon any
other conditions which may be
just and proper, including the condition that a moving party
stipulate his or her consent and
submission to the jurisdiction of the other forum.
(f) The court may decline to exercise its jurisdiction under this chapter if a
custody
determination is incidental to
an action for divorce or another proceeding while retaining
jurisdiction over the divorce or
other proceeding.
(g) If it appears to the court that it is clearly an inappropriate forum it may
require the
party who commenced the
proceedings to pay, in addition to the costs of the proceedings in
Rhode Island, necessary travel
and related expenses, and any other reasonable fees which may be
imposed by the court. Payment is
to be made to the clerk of the family court for remittance to the
proper party.
(h) Upon dismissal or stay of proceedings under this section the court shall
inform the
court found to be the more
appropriate forum of this fact or, if the court which would have
jurisdiction in the other state
is not certainly known, shall transmit the information to the court
clerk or other appropriate
official for forwarding to the appropriate court.
(i) Any communication received from another state informing the family court of
a
finding of inconvenient forum
because the family court is the more appropriate forum shall be
filed in the custody registry of
the appropriate court. Upon assuming jurisdiction the family court
shall inform the original court
of this fact.
15-14-9.
Jurisdiction declined by reason of conduct -- (a) If the
petitioner for an initial
decree has wrongfully taken the
child from another state or has engaged in similar reprehensible
conduct the court may decline to
exercise jurisdiction if this is just and proper under the
circumstances.
(b) Unless required in the interest of the child, the court shall not exercise
its jurisdiction
to modify a custody decree of
another state if the petitioner, without consent of the person entitled
to custody, has improperly
removed the child from the physical custody of the person entitled to
custody or has improperly
retained the child after a visit or other temporary relinquishment of
physical custody. If the
petitioner has violated any other provision of a custody decree of another
state the court may decline to
exercise its jurisdiction if this is just and proper under the
circumstances.
(c) In appropriate cases a court dismissing a petition under this section may
charge the
petitioner with necessary travel
and other expenses, including attorneys' fees, incurred by other
parties or their witnesses.
15-14-10.
Information under oath to be submitted to the court -- (a) Every
party in a
custody proceeding in his first
pleading or in an affidavit attached to that pleading shall give
information under oath as to the
child's present address, the places where the child has lived
within the last five (5) years,
and the names and present addresses of the persons with whom the
child has lived during that
period. In this pleading or affidavit every party shall further declare
under oath whether:
(1) He or she has participated as a party or witness, or in any other capacity,
in any other
litigation concerning the
custody of the child in this or any other state;
(2) He or she has information of any custody proceeding concerning the child
pending in
a court of this or any other
state; and
(3) He or she knows of any person not a party to the proceedings who has physical
custody of the child or claims
to have custody or visitation rights with respect to the child.
(b) If the declaration as to any of the above items is in the affirmative the
declarant shall
give additional information
under oath as required by the court. The court may examine the
parties under oath as to details
of the information furnished and as to other matters pertinent to
the court's jurisdiction and the
disposition of the case.
(c) Each party has a continuing duty to inform the court of any custody
proceeding
concerning the child in this or
any other state of which he or she obtained information during this
proceeding.
15-14-11.
Additional parties -- If the court learns from information
furnished by the
parties pursuant to section
15-14-10 or from other sources that a person not a party to the custody
proceeding has physical custody
of the child or claims to have custody or visitation rights with
respect to the child, it shall
order that person to be joined as a party and to be duly notified of the
pendency of the proceeding and
of his or her joinder as a party. If the person joined as a party is
outside Rhode Island he or she
shall be served with process or otherwise notified in accordance
with section 15-14-6.
15-14-12.
Appearance of parties and the child -- (a) The court may order
any party to
the proceeding who is in Rhode
Island to appear personally before the court. If that party has
physical custody of the child
the court may order that he appear personally with the child.
(b) If a party to the proceeding whose presence is desired by the court is
outside Rhode
Island with or without the child
the court may order that the notice given under section 15-14-6
include a statement directing
that party to appear personally with or without the child and
declaring that failure to appear
may result in a decision adverse to that party.
(c) If a party to the proceeding who is outside Rhode Island is directed to
appear under
subsection (b) or desires to appear
personally before the court with or without the child, the court
may require another party to pay
to the clerk of the family court travel and other necessary
expenses of the party so
appearing and of the child if this is just and proper under the
circumstances.
15-14-13.
Binding force and res judicata effect of custody decree -- A
custody decree
rendered by the family court
which had jurisdiction under section 15-14-4 binds all parties who
have been served in Rhode Island
or notified in accordance with section 15-14-6 or who have
submitted to the jurisdiction of
the court and who have been given an opportunity to be heard. As
to these parties the custody
decree is conclusive as to all issues of law and fact decided and as to
the custody determination made
unless and until that determination is modified pursuant to law,
including the provisions of this
chapter.
15-14-14.
Recognition of out of state custody decrees -- The courts of
Rhode Island
shall recognize and enforce an
initial or modification decree of a court of another state which had
assumed jurisdiction under
statutory provisions substantially in accordance with this chapter or
which was made under factual
circumstances meeting the jurisdictional standards of the chapter,
so long as this decree has been
modified in accordance with jurisdictional standards substantially
similar to those of this
chapter.
15-14-15.
Modification of custody decree of another state -- (a) If a
court of another
state has made a custody decree,
the family court shall not modify that decree unless: (1) it
appears to the court that the
court which rendered the decree does not now have jurisdiction under
jurisdictional prerequisites
substantially in accordance with this chapter or has declined to assume
jurisdiction to modify the
decree, and (2) the family court has jurisdiction.
(b) If the court is authorized under subsection (a) and section 15-14-9 to
modify a
custody decree of another state
it shall give due consideration to the transcript of the record and
other documents of all previous
proceedings submitted to it in accordance with section 15-14-23.
15-14-16.
Filing and enforcement of custody decree of another state -- (a)
A certified
copy of a custody decree of
another state may be filed in the office of the clerk of the family
court. The clerk shall treat the
decree in the same manner as a custody decree of the family court.
A custody decree so filed has the
same effect and shall be enforced in like manner as a custody
decree by the family court.
(b) A person violating a custody decree of another state which makes it
necessary to
enforce the decree in Rhode
Island may be required to pay necessary travel and related expenses
and any other reasonable fees
which may be imposed by the court.
(c) No law enforcement agent in the state of Rhode Island shall assist in
removing a
child from this state pursuant
to a custody decree of another state unless the family court has held
a hearing on the validity of the
out of state custody decree and has determined it to be valid and
enforceable.
15-14-17.
Registry of out of state custody decrees and proceedings -- The
clerk of the
family court shall maintain a
registry in which he or she shall enter the following:
(1) Certified copies of custody decrees of other states received for filing;
(2) Communications as to the pendency of custody proceedings in other states;
(3) Communications concerning a finding of inconvenient forum by a court of
another
state; and
(4) Other communications or documents concerning custody proceedings in another
state
which may affect the
jurisdiction of the family court or the disposition to be made by it in a
custody proceeding.
15-14-18.
Certified copies of custody decree -- The clerk of the family
court at the
request of the court of another
state or at the request of any person who is affected by or has
legitimate interest in a custody
decree shall, upon payment of the fee provided by law, certify and
forward a copy of the decree to
that court or person.
15-14-19.
Taking testimony in another state -- In addition to other
procedural devices
available to a party, any party
to the proceeding or a guardian ad litem or other representative of
the child may adduce testimony
of witnesses, including parties and the child, by deposition or
otherwise in another state. The
court on its own motion may direct that the testimony of a person
be taken in another state and
may prescribe the manner in which and the terms upon which the
testimony shall be taken.
15-14-20.
Hearings and studies in another state -- Orders to appear -- (a)
The family
court may request the appropriate
court of another state to hold a hearing to adduce evidence, to
order a party to produce or give
evidence under other procedures of that state, to have social
studies made with respect to the
custody of a child involved in proceedings pending in the family
court, and to forward to the
family court certified copies of the transcript of the record of the
hearing, the evidence otherwise
adduced, or any social studies prepared in compliance with the
request. The cost of the services
may be assessed against the parties or, if necessary, ordered paid
by the state.
(b) The family court may request the appropriate court of another state to
order a party to
custody proceedings pending in
the family court to appear in the proceedings and, if that party
has physical custody of the
child, to appear with the child. The request may state that travel and
other necessary expenses of the
party and of the child whose appearance is desired will be
assessed against another party
or will otherwise be paid.
15-14-21.
Assistance to courts of other states -- (a) Upon request of the
court of another
state the family court may order
a person in Rhode Island to appear at a hearing to adduce
evidence or to produce or give
evidence under other procedures available in Rhode Island or may
order social studies to be made
for use in a custody proceeding in another state. A certified copy
of the transcript of the record
of the hearing or the evidence otherwise adduced and any social
studies prepared shall be
forwarded by the clerk of the family court to the requesting court.
(b) A person within Rhode Island may voluntarily give his or her testimony or
statement
in Rhode Island for use in a
custody proceeding outside Rhode Island.
(c) Upon request of the court of another state the family court may order a
person in
Rhode Island to appear alone or
with the child in a custody proceeding in another state. The court
may condition compliance with
the request upon assurance by the other state that travel and other
necessary expenses will be
advanced or reimbursed.
15-14-22.
Preservation of documents for use in other states -- In any
custody
proceeding in Rhode Island the
court shall preserve the pleadings, orders, decrees, any record that
has been made of its hearings,
social studies, and other pertinent documents until the child
reaches eighteen (18) years of
age. Upon appropriate request of the court of another state the
family court shall forward to
the other court certified copies of any or all such documents.
15-14-23.
Request for court records of another state -- If a custody
decree has been
rendered in another state
concerning a child involved in a custody proceeding pending in the
family court, the family court
upon taking jurisdiction of the case shall request of the court of the
other state a certified copy of
the transcript of any court record and other documents mentioned in
section 15-14-22.
15-14-24.
International application -- The general policies of this
chapter extend to the
international area. The
provisions of this chapter relating to the recognition and enforcement of
custody decrees of other states
apply to custody decrees and decrees involving legal institutions
similar in nature to custody
institutions rendered by appropriate authorities of other nations if
reasonable notice and
opportunity to be heard were given to all affected persons.
15-14-25.
Priority -- Upon the request of a party to a custody proceeding
which raises a
question of existence or
exercise of jurisdiction under this chapter the case shall be given calendar
priority and handled
expeditiously.
15-14-26.
Severability -- If any provision of this chapter or the
application thereof to any
person or circumstances is held
invalid, its invalidity does not affect other provisions or
applications of the chapter
which can be given without the invalid provision or application, and to
this end the provisions of this
chapter are severable.
SECTION
2. Title 15 of the General Laws entitled "Domestic Relations" is
hereby
amended by adding thereto the
following chapter:
CHAPTER
14.1
UNIFORM CHILD CUSTODY
JURISDICTION
AND ENFORCEMENT ACT
15-14.1-1.
Short title. -- This chapter may be cited as the “Uniform Child
Custody
Jurisdiction and Enforcement
Act.”
15-14.1-2.
Definitions. -- As used in this chapter the following words and
phrases shall
have the following meanings
unless the context shall indicate another or different meaning or
intent:
(1)
“Abandoned” means left without provision for reasonable and necessary care or
supervision;
(2)
“Child” means an individual who has not attained eighteen (18) years of age;
(3)
“Child custody determination” means a 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. The term does not include an
order relating to child support
or other monetary obligation of an individual;
(4)
“Child custody proceeding” means a proceeding in which legal custody, physical
custody, or visitation with
respect to a child is an issue. The term includes a proceeding for
divorce, separation, neglect,
abuse, dependency, guardianship, paternity, termination of parental
rights, and protection from
domestic violence, in which the issue may appear. The term does not
include a proceeding involving
juvenile delinquency, contractual emancipation, or enforcement
under this chapter;
(5)
“Commencement” means the filing of the first pleading in a proceeding;
(6)
“Court” means the family court of the State of Rhode Island and Providence
Plantations unless another
meaning is so indicated;
(7)
“Home state” means the state in which a child lived with a parent or a person
acting
as a parent for at least six (6)
consecutive months immediately before the commencement of a
child custody proceeding. In the
case of a child less than six (6) months of age, the term means
the state in which the child
lived from birth with any of the persons mentioned. A period of
temporary absence of any of the
mentioned persons is part of the period;
(8)
“Initial determination” means the first child custody determination concerning
a
particular child;
(9)
“Issuing court” means the court that makes a child custody determination for
which
enforcement is sought under this
chapter;
(10)
“Issuing state” means the state in which a child custody determination is made;
(11)
“Modification” means a child custody determination that changes, replaces,
supercedes, or is otherwise made
after a previous determination concerning the same child,
whether or not it is made by the
court that made the previous determination;
(12)
“Person” means an individual, corporation, business trust, estate, trust,
partnership,
limited liability company,
association, joint venture, government, governmental subdivision,
agency, or instrumentality,
public corporation, or any other legal or commercial entity;
(13)
“Person acting as a parent” means a person, other than a parent, who:
(i)
has physical custody of the child or has had physical custody for a period of
six (6)
consecutive months, including
any temporary absence, within one (1) year immediately before
the commencement of a child
custody proceeding; and
(ii)
has been awarded legal custody by a court or claims a right to legal custody
under the
law of this state.
(14)
“Physical custody” means the physical care and supervision of a child;
(15)
“State” means a state of the United States, the District of Columbia, Puerto
Rico, the
United States Virgin Islands, or
any territory or insular possession subject to the jurisdiction of
the United States;
(16)
“Tribe” means an Indian tribe or band, or Alaskan Native village, which is
recognized by federal law or
formally acknowledged by a state;
(17)
“Warrant” means an order issued by a court authorizing law enforcement officers
to
take physical custody of a
child.
15-14.1-3.
Proceedings governed by other law. -- This chapter does not govern
an
adoption proceeding or a
proceeding pertaining to the authorization of emergency medical care
for a child.
15-14.1-4.
Application to Indian tribes. -- (a) A child custody proceeding that
pertains
to an Indian child as defined in
the "Indian Child Welfare Act,” 25 U.S.C. section 1901 et seq., is
not subject to this chapter to
the extent that it is governed by the "Indian Child Welfare Act."
(b)
A court of this state shall treat a tribe as if it were a state of the United
States for the
purpose of applying this
chapter.
(c)
A child custody determination made by a tribe under factual circumstances in
substantial conformity with the
jurisdictional standards of this chapter must be recognized and
enforced under this chapter.
15-14.1-5.
International application. -- (a) A court of this state shall treat
a foreign
country as if it were a state of
the United States for the purpose of applying this chapter.
(b)
Except as otherwise provided in subsection (c), a child custody determination
made in
a foreign country under factual
circumstances in substantial conformity with the jurisdictional
standards of this chapter must
be recognized and enforced under this chapter.
(c)
A court of this state need not apply this chapter if the child custody law of a
foreign
country violates fundamental
principles of human rights.
15-14.1-6.
Effect of child custody determination. -- A child custody
determination
made by a court of this state
that had jurisdiction under this chapter binds all persons who have
been served in accordance with
the laws of this state or notified in accordance with this chapter or
who have submitted to the
jurisdiction of the court, and who have been given an opportunity to be
heard. As to those persons, the
determination is conclusive as to all decided issues of law and
fact except to the extent the
determination is modified.
15-14.1-7.
Priority. -- If a question of existence or exercise of jurisdiction
under this
chapter is raised in a child
custody proceeding, the question, upon request of a party, must be
given priority on the calendar
and handled expeditiously.
15-14.1-8.
Notice to persons outside state. -- (a) Notice required for the exercise
of
jurisdiction when a person is
outside this state may be given in a manner prescribed by the law of
this state for service of
process or by law of the state in which the service is made. Notice must
be given in a manner reasonably
calculated to give actual notice but may be by publication if
other means are not effective.
(b)
Proof of service may be made in the manner prescribed by the law of this state
or by
the law of the state in which
the service is made.
(c)
Notice is not required for the exercise of jurisdiction with respect to a
person who
submits to the jurisdiction of
the court.
15-14.1-9.
Appearance and limited immunity. -- (a) A party to a child custody
proceeding, including a
modification proceeding, or a petitioner or respondent in a proceeding to
enforce or register a child
custody determination, is not subject to personal jurisdiction in this
state for another proceeding or
purpose solely by reason of having participated, or of having been
physically present for the
purpose of participating in the proceeding.
(b)
A person who is subject to personal jurisdiction in this state on a basis other
than
physical presence is not immune
from service of process in this state. A party present in this state
who is subject to the
jurisdiction of another state is not immune from service of process allowable
under the laws of that state.
(c)
The immunity granted by subsection (a) does not extend to civil litigation
based on
acts unrelated to the
participation in a proceeding under this chapter committed by an individual
while present in this state.
15-14.1-10.
Communication between courts. -- (a) A court of this state may
communicate with a court in
another state concerning a proceeding arising under this chapter.
(b)
The court may allow the parties to participate in the communication. If the
parties are
not able to participate in the
communication, they must be given the opportunity to present facts
and legal arguments before a
decision on jurisdiction is made.
(c)
Communication between courts on schedules, calendars, court records, and
similar
procedural matters may occur
without first informing the parties. A record need not be made of
the communication.
(d)
Except as otherwise provided in subsection (c), a record must be made of the
communication under this
section. The parties must be informed promptly of the communication
of and granted access to the
record.
(e)
For the purposes of this section, “record” means information that is inscribed
on a
tangible medium or that is
stored in an electronic or other medium and is retrievable in
perceivable form. A record
includes notes or transcripts of a court reporter who listened to a
conference call between the
courts or an electronic recording of the communication between the
courts.
15-14.1-11.
Taking testimony in another state. -- (a) In addition to other
procedures
available to a party, a party to
a child custody proceeding may offer testimony of witnesses who
are located in another state,
including testimony of the parties and the child, by deposition or
other means allowable in this
state for testimony taken in another state. The court on its own
motion may order that the
testimony of a person be taken in another state and may prescribe the
manner in which and the terms
upon which the testimony is taken.
(b)
A court of this state may permit an individual residing in another state to be
deposed
or to testify by telephone,
audiovisual means, or other electronic means before a designated court
or at another location in that
state. A court of this state shall cooperate with courts of other states
in designating an appropriate
location for the disposition or testimony.
(c)
Documentary evidence transmitted from another state to a court of this state by
technological means that do not
produce an original writing may not be excluded from evidence
on an objection based on the
means of transmission.
15-14.1-12.
Cooperation between courts – Preservation of records. -- (a) A court
of
this state may request the
appropriate court of another state to:
(1)
hold an evidentiary hearing;
(2)
order a person to produce or give evidence pursuant to procedures of that
state;
(3)
order that an evaluation be made with respect to the custody of a child
involved in a
pending proceeding;
(4)
forward to the court of this state a certified copy of the transcript of the
record of the
hearing, the evidence otherwise
presented, and any evaluation prepared in compliance with the
request; and
(5)
order a party to a child custody proceeding or any person having physical
custody of
the child to appear in the
proceeding with or without the child.
(b)
Upon request of a court of another state, a court of this state may hold a
hearing or
enter an order described in
subsection (a).
(c)
Travel and other necessary and reasonable expenses incurred under subsections
(a)
and (b) may be assessed against
the parties according to the laws of this state.
(d)
A court of this state shall preserve the pleadings, orders, decrees, records of
hearings,
evaluations, and other pertinent
records with respect to a child custody proceeding until the child
attains eighteen (18) years of
age. Upon appropriate request by a court or law enforcement
official of another state, the
court shall forward a certified copy of those records.
15-14.1-13.
Initial child custody jurisdiction. -- (a) Except as otherwise
provided, a
court of this state has
jurisdiction to make an initial child custody determination only if:
(1)
this state is the home state of the child on the date of the commencement of
the
proceeding, or was the home
state of the child within six (6) months before the commencement of
the proceeding and the child is
absent from this state but a parent or person acting as a parent
continues to live in this state;
(2)
a court of another state does not have jurisdiction under paragraph (1), or a
court of
the home state of the child has
declined to exercise jurisdiction on the ground that this state is the
more appropriate forum and:
(i)
the child and the child’s parents, or the child and at least one parent or a
person acting
as a parent, have a significant
connection with this state other than mere physical presence; and
(ii)
substantial evidence is available in this state concerning the child’s care,
protection,
training, and personal
relationships;
(3)
all courts having jurisdiction under paragraph (1) or (2) have declined to
exercise
jurisdiction on the ground that
a court of this state is the more appropriate forum to determine the
custody of the child; or
(4)
no court of any other state would have jurisdiction under the criteria
specified in
paragraph (1), (2), or (3).
(b)
Subsection (a) is the exclusive jurisdictional basis for making a child custody
determination by a court of this
state.
(c)
Physical presence of, or personal jurisdiction over, a party or a child is not
necessary
or sufficient to make a child
custody determination.
15-14.1-14.
Exclusive, continuing jurisdiction. -- (a) Except as otherwise
provided, a
court of this state which has made
a child custody determination consistent with this chapter has
exclusive, continuing
jurisdiction over the determination until:
(1)
a court of this state determines that neither the child, the child’s parents,
and any
person acting as a parent do not
have a significant connection with this state and that substantial
evidence is no longer available
in this state concerning the child’s care, protection, training, and
personal relationships; or
(2)
a court of this state or a court of another state determines that the child,
the child’s
parents, and any person acting
as a parent do not presently reside in this state.
(b)
A court of this state which has made a child custody determination and does not
have
exclusive, continuing jurisdiction
under this section may modify that determination only if it has
jurisdiction to make an initial
determination hereunder.
15-14.1-15.
Jurisdiction to modify determination. -- (a) Except as otherwise
provided,
a court of this state may not modify
a child custody determination made by a court of another
state unless a court of this
state has jurisdiction to make an initial determination, and:
(1)
the court of the other state determines it no longer has exclusive, continuing
jurisdiction or that a court of
this state would be a more convenient forum; or
(2)
a court of this state or a court of the other state determines that the child,
the child’s
parents, and any person acting
as a parent do not presently reside in the other state.
15-14.1-16.
Temporary emergency jurisdiction. – (a) A court of this state has
temporary emergency jurisdiction
if the child is present in this state and the child has been
abandoned or it is necessary in
an emergency to protect the child because the child, or a sibling or
parent of the child, is
subjected to or threatened with mistreatment or abuse.
(b)
If there is no previous child custody determination that is entitled to be
enforced
under this chapter and a child
custody proceeding has not been commenced in a court of a state
having jurisdiction, a child
custody determination made under this section remains in effect until
an order is obtained from a
court of a state having jurisdiction. If a child custody proceeding has
not been or is not commenced in
a court of a state having jurisdiction, a child custody
determination made under this
section becomes a final determination, if it so provides and this
state becomes the home state of
the child.
(c)
If there is a previous child custody determination that is entitled to be
enforced under
this chapter, or a child custody
proceeding has been commenced in a court of a state having
jurisdiction, any order issued
by a court of this state under this section must specify in the order a
period that the court considers
adequate to allow the person seeking an order to obtain an order
from the state having
jurisdiction. The order issued in this state remains in effect until an order
is
obtained from the other state
within the period specified or the period expires.
(d)
A court of this state which has been asked to make a child custody
determination
under this section, upon being
informed that a child custody proceeding has been commenced in,
or a child custody determination
has been made by, a court of a state having jurisdiction, shall
immediately communicate with the
other court. A court of this state which is exercising
jurisdiction, upon being
informed that a child custody proceeding has been commenced in, or a
child custody determination has
been made by, a court of another state under a statute similar to
this section shall immediately
communicate with the court of that state to resolve the emergency,
protect the safety of the
parties and the child, and determine a period for the duration of the
temporary order.
15-14.1-17.
Notice -- Opportunity to be heard -- Joinder. – (a) Before a child
custody
determination is made under this
chapter, notice and an opportunity to be heard in accordance
with this chapter must be given
to all persons entitled to notice under the law of this state as in
child custody proceedings
between residents of this state, any parent whose parental rights have
not been previously terminated,
and any person having physical custody of the child.
(b)
This chapter does not govern the enforceability of a child custody
determination made
without notice or an opportunity
to be heard.
(c)
The obligation to join a party and the right to intervene as a party in a child
custody
proceeding under this chapter
are governed by the law of this state as in child custody
proceedings between residents of
this state.
15-14.1-18.
Simultaneous proceedings. – (a) Except as otherwise provided, a
court of
this state may not exercise its
jurisdiction under this chapter if, at the time of the commencement
of the proceeding, a proceeding
concerning the custody of the child has been commenced in a
court of another state having
jurisdiction substantially in conformity with this chapter, unless the
proceeding has been terminated
or is stayed by the court of the other state because a court of this
state is a more convenient
forum.
(b)
Except as otherwise provided, a court of this state, before hearing a child
custody
proceeding, shall examine the
court documents and other information supplied by the parties
pursuant to this chapter. If the
court determined that a child custody proceeding has been
commenced in a court in another
state having jurisdiction substantially in accordance with this
chapter, the court of this state
shall stay its proceeding and communicate with the court of the
other state. If the court of the
state having jurisdiction substantially in accordance with this
chapter does not determine that
the court of this state is a more appropriate forum, the court of
this state shall dismiss the
proceeding.
(c)
In a proceeding to modify a child custody determination, a court of this state
shall
determine whether a proceeding to
enforce the determination has been commenced in another
state. If a proceeding to
enforce a child custody determination has been commenced in another
state, the court may:
(1)
stay the proceeding for modification pending the entry of an order of a court
of the
other state enforcing, staying,
denying, or dismissing the proceeding for enforcement;
(2)
enjoin the parties from continuing with the proceeding for enforcement; or
(3)
proceed with the modification under conditions it considers appropriate.
15-14.1-19.
Inconvenient forum. -- (a) A court of this state which has
jurisdiction under
this chapter to make a child
custody determination may decline to exercise its jurisdiction at any
time if it determines that it is
an inconvenient forum under the circumstances and that a court of
another state is a more
appropriate forum. The issue of inconvenient forum may be raised upon
motion of a party, the court’s
own motion, or request of another court.
(b)
Before determining whether it is an inconvenient forum, a court of this state
shall
consider whether it is
appropriate for a court of another state to exercise jurisdiction. For this
purpose, the court shall allow
the parties to submit information and shall consider all relevant
factors, including:
(1)
whether domestic violence has occurred and is likely to continue in the future
and
which state could best protect
the parties and the child;
(2)
the length of time the child has resided outside this state;
(3)
the distance between the court in this state and the court in the state that
would
assume jurisdiction;
(4)
the relative financial circumstances of the parties;
(5)
any agreement of the parties as to which state should assume jurisdiction;
(6)
the nature and location of the evidence required to resolve the pending
litigation,
including testimony of the
child;
(7)
the ability of the court of each state to decide the issue expeditiously and
the
procedures necessary to present
the evidence; and
(8)
the familiarity of the court of each state with the facts and issues in the
pending
litigation.
(c)
If a court of this state determines that it is an inconvenient forum and that a
court of
another state is a more appropriate
forum, it shall stay the proceedings upon condition that a child
custody proceeding be promptly
commenced in another designated state and may impose any
other condition the court
considers just and proper.
(d)
A court of this state may decline to exercise its jurisdiction under this
chapter if a
child custody determination is
incidental to an action for divorce or another proceeding while still
retaining jurisdiction over the
divorce or other proceeding.
15-14.1-20.
Jurisdiction declined by reason of conduct. -- (a) Except as
otherwise
provided, if a court of this
state has jurisdiction under this chapter because a person seeking to
invoke its jurisdiction has
engaged in unjustifiable conduct, the court shall decline to exercise its
jurisdiction unless:
(1)
the parents and all persons acting as parents have acquiesced in the exercise
of
jurisdiction;
(2)
a court of the state otherwise having jurisdiction determined that this state
is a more
appropriate forum; or
(3)
no court of any other state would have jurisdiction under the criteria
specified in this
chapter.
(b)
If a court of this state declined to exercise its jurisdiction pursuant to
subsection (a), it
may fashion an appropriate
remedy to ensure the safety of the child and prevent a repetition of the
unjustifiable conduct, including
staying the proceeding until a child custody proceeding is
commenced in a court having
jurisdiction.
(c)
If a court dismisses a petition or stays a proceeding because it declines to
exercise its
jurisdiction pursuant to
subsection (a), it shall assess against the party seeking to invoke its
jurisdiction necessary and
reasonable expenses including costs, communication expenses,
attorneys' fees, investigative
fees, expenses for witnesses, travel expenses, and child care during
the course of the proceedings,
unless the party from whom fees are sought establishes that the
assessment would be clearly
inappropriate. The court may not assess fees, costs, or expenses
against this state unless
authorized by law other than this chapter.
15-14.1-21.
Information to be submitted to court. – (a) Subject to any law
providing
for the confidentiality of
procedures, addresses, and other identifying information in a child
custody proceeding, each party,
in its first pleading or in an attached affidavit, shall give
information, if reasonably
ascertainable, under oath as to the child’s present address or
whereabouts, the places where
the child has lived during the last five (5) years, and the names and
present addresses of the persons
with whom the child has lived during that period. The pleading
or affidavit must state whether
the party:
(1)
has participated, as a party or witness or in any other capacity, in any other
proceeding concerning the
custody of or visitation with the child and, if so, identify the court, the
case number, and the date of the
child custody determination, if any;
(2)
knows of any proceeding that could affect the current proceeding, including
proceedings for enforcement and
proceedings relating to domestic violence, protective orders,
termination of parental rights,
and adoptions and, if so, identify the court, the case number, and
the nature of the proceeding;
and
(3)
knows the names and addresses of any person not a party to the proceeding who
has
physical custody of the child or
claims rights of legal custody or physical custody of, or visitation
with, the child and, if so, the
names and address of those persons.
(b)
If the information required by subsection (a) is not furnished, the court, upon
motion
of a party or its own motion,
may stay the proceeding until the information is furnished.
(c)
If the declaration as to any of the items described in subsections (a)(1)
through (3) is
in the affirmative, the
declarant shall give additional information under oath as required by the
court. The court may examine the
parties under oath as to details of the information furnished
and other matters pertinent to
the court’s jurisdiction and the disposition of the case.
(d)
Each party has a continuing duty to inform the court of any proceeding in this
or any
other state that could affect
the current proceeding.
(e)
If a party alleges in an affidavit or a pleading under oath that the health,
safety, or
liberty of a party or child
would be jeopardized by disclosure of identifying information, the
information must be sealed and
may not be disclosed to the other party or the public unless the
court orders the disclosure to
be made after a hearing in which the court takes into consideration
the health, safety, or liberty
of the party or child and determines that the disclosure is in the
interest of justice.
15-14.1-22.
Appearance of parties and child. – (a) In a child custody proceeding
in this
state, the court may order a
party to the proceeding who is in this state to appear before the court
in person with or without the
child. The court may order any person who is in this state and who
has physical custody or control
of the child to appear in person with the child.
(b)
If a party to a child custody proceeding whose presence is desired by the court
is
outside this state, the court
may order that a notice given pursuant to this chapter include a
statement directing the party to
appear in person with or without the child and informing the party
that failure to appear may
result in a decision adverse to the party.
(c)
The court may enter any orders necessary to ensure the safety of the child and
of any
person ordered to appear under
this section.
(d)
If a party to a child custody proceeding who is outside this state is directed
to appear
under subsection (b) or desires
to appear personally before the court with or without the child, the
court may require another party
to pay reasonable and necessary travel and other expenses of the
party so appearing and of the
child.
15-14.1-23.
Additional definitions in this chapter. – (1) “Petitioner” means a
person
who seeks enforcement of an
order for return of a child under the Hague Convention on the Civil
Aspects of International Child
Abduction or enforcement of a child custody determination.
(2)
“Respondent” means a person against whom a proceeding has been commenced for
enforcement of an order for
return of a child under the Hague Convention on the Civil Aspects of
International Child Abduction or
enforcement of a child custody determination.
15-14.1-24.
Enforcement under Hague Convention. -- A court of this state may
enforce an order for the return
of the child made under the Hague Convention on the Civil
Aspects of International Child
Abduction as if it were a child custody determination.
15-14.1-25.
Duty to enforce. -- (a) A court of this state shall recognize and
enforce a
child custody determination of a
court of another state if the latter court exercised jurisdiction in
substantial conformity with this
chapter or the determination was made under factual
circumstances meeting the
jurisdictional standards of this chapter and the determination has not
been modified in accordance with
this chapter.
(b)
A court of this state may utilize any remedy available under other law of this
state to
enforce a child custody
determination made by a court of another state. The remedies provided in
this chapter are cumulative and
do not affect the availability of other remedies to enforce a child
custody determination.
15-14.1-26.
Temporary visitation. – (a) A court of this state which does not
have
jurisdiction to modify a child
custody determination may issue a temporary order enforcing:
(1)
a visitation schedule made by a court of another state; or
(2)
the visitation provisions of a child custody determination of another state
that does not
provide for a specific
visitation schedule.
(b)
If a court of this state makes an order under subsection (a)(2), it shall
specify in the
order a period that it considers
adequate to allow the petitioner to obtain an order from a court
having jurisdiction under the
criteria specified in this chapter. The order remains in effect until
an order is obtained from the
other court or the period expires.
15-14.1-27.
Registration of child custody determination. – (a) A child custody
determination issued by a court
of another state may be registered in this state, with or without a
simultaneous request for enforcement,
by sending to the appropriate court in this state:
(1)
a letter or other document requesting registration;
(2)
two (2) copies, including one (1) certified copy, of the determination sought
to be
registered, and a statement
under penalty of perjury that to the best of the knowledge and belief of
the person seeking registration
the order has not been modified; and
(3)
except as otherwise provided, the name and address of the person seeking
registration
and any parent or person acting
as a parent who has been awarded custody or visitation in the
child custody determination
sought to be registered.
(b)
On receipt of the documents required by subsection (a), the registering court
shall:
(1)
cause the determination to be filed as a foreign judgment, together with one
(1) copy
of any accompanying documents
and information, regardless of their form; and
(2)
serve notice upon the persons named pursuant to subsection (a)(3) and provide
them
with an opportunity to contest the
registration in accordance with this section.
(c)
The notice required by subsection (b)(2) must state that:
(1)
a registered determination is enforceable as of the date of the registration in
the same
manner as a determination issued
by a court of this state;
(2)
a hearing to contest the validity of the registered determination must be
requested
within twenty (20) days after
service of notice; and
(3)
failure to contest the registration will result in confirmation of the child
custody
determination and preclude
further contest of that determination with respect to any matter that
could have been asserted.
(d)
A person seeking to contest the validity of a registered order must request a
hearing
within twenty (20) days after
service of the notice. At that hearing, the court shall confirm the
registered order unless the
person contesting registration establishes that:
(1)
the issuing court did not have jurisdiction;
(2)
the child custody determination sought to be registered has been vacated,
stayed, or
modified by a court having
jurisdiction to do so; or
(3)
the person contesting registration was entitled to notice, but notice was not
given in
the proceedings before the court
that issued the order for which registration is sought.
(e)
If a timely request for a hearing to contest the validity of the registration
is not made,
the registration is confirmed as
a matter of law and the person requesting registration and all
persons served must be notified
of the confirmation.
(f)
Confirmation of a registered order, whether by operation of law or after notice
and
hearing, precludes further
contest of the order with respect to any matter that could have been
asserted at the time of
registration.
15-14.1-28.
Enforcement of registered determination. – (a) A court of this state
may
grant any relief normally
available under the law of this state to enforce a registered child custody
determination made by a court of
another state.
(b)
A court of this state shall recognize and enforce, but may not modify, except
in
accordance with this chapter, a
registered child custody determination of a court of another state.
15-14.1-29.
Simultaneous proceedings. – If a proceeding for enforcement under
this
chapter is commenced in a court
of this state and the court determines that a proceeding to modify
the determination is pending in
a court of another state having jurisdiction to modify the
determination under this
chapter, the enforcing court shall immediately communicate with the
modifying court. The proceeding
for enforcement continues unless the enforcing court, after
consultation with the modifying court,
stays or dismisses the proceeding.
15-14.1-30.
Expedited enforcement of child custody determination. – (a) A
petition
under this chapter must be
verified. Certified copies of all orders sought to be enforced and of any
order confirming registration
must be attached to the petition. A copy of a certified copy of an
order may be attached instead of
the original.
(b)
A petition for enforcement of a child custody determination must state:
(1)
whether the court that issued the determination identified the jurisdictional
basis it
relied upon in exercising
jurisdiction and, if so, what the basis was;
(2)
whether the determination for which enforcement is sought has been vacated,
stayed,
or modified by a court whose
decision must be enforced under this chapter and, if so, identify the
court, the case number, and the
nature of the proceeding;
(3)
whether any proceeding has been commenced that could affect the current
proceeding, including
proceedings relating to domestic violence, protective orders, termination of
parental rights, and adoptions
and, if so, identify the court, the case number, and the nature of the
proceeding;
(4)
the present physical address of the child and the respondent, if known;
(5)
whether relief in addition to the immediate physical custody of the child and
attorneys’ fees is sought,
including a request for assistance from law enforcement officials and, if
so, the relief sought; and
(6)
if the child custody determination has been registered and confirmed, the date
and
place of registration.
(c)
Upon the filing of a petition, the court shall issue an order directing the
respondent to
appear in person with or without
the child at a hearing and may enter any order necessary to
ensure the safety of the parties
and the child. The hearing must be held on the next judicial day
after service of the order
unless that date is impossible. In that event, the court shall hold the
hearing on the first judicial
day possible. The court may extend the date of hearing at the request
of the petitioner.
(d)
An order issued under subsection (c) must state the time and place of the
hearing and
advise the respondent that at
the hearing the court may order that the petitioner may take
immediate physical custody of
the child and the payment of fees, costs, and expenses and may
schedule a hearing to determine
whether further relief is appropriate, unless the respondent
appears and establishes that:
(1)
the child custody determination has not been registered and confirmed and that:
(i)
the issuing court did not have jurisdiction;
(ii)
the child custody determination for which enforcement is sought has been
vacated,
stayed, or modified by a court
having jurisdiction to do so;
(iii)
the respondent was entitled to notice, but notice was not given in the
proceedings
before the court that issued the
order for which enforcement is sought; or
(2)
the child custody determination for which enforcement is sought was registered
and
confirmed, but has been vacated,
stayed, or modified by a court of a state having jurisdiction.
15-14.1-31.
Service of petition and order. – Except as otherwise provided, the
petition
and order must be served, by any
method authorized by the law of this state, upon respondent and
any person who has physical
custody of the child.
15-14.1-32.
Hearing and order. – (a) Unless the court issues a temporary
emergency
order, upon a finding that a
petitioner is entitled to immediate physical custody of the child, the
court shall order that the
petitioner may take immediate physical custody of the child unless the
respondent establishes that:
(1)
the child custody determination has not been registered and confirmed and that:
(i)
the issuing court did not have jurisdiction;
(ii)
the child custody determination for which enforcement is sought has been
vacated,
stayed, or modified by a court
of a state having jurisdiction to do so; or
(iii)
the respondent was entitled to notice, but notice was not given in the
proceedings
before the court that issued the
order for which enforcement is sought; or
(2)
the child custody determination for which enforcement is sought was registered
and
confirmed but has been vacated,
stayed, or modified by a court of a state having jurisdiction to do
so.
(b)
The court may award the fees, costs, and expenses and may grant additional
relief,
including a request for the assistance
of law enforcement officials, and set a further hearing to
determine whether additional
relief is appropriate.
(c)
If a party called to testify refuses to answer on the grounds that the
testimony may be
self-incriminating, the court
may draw an adverse inference from the refusal.
(d)
A privilege against disclosure of communications between spouses and a defense
of
immunity based on the
relationship of husband and wife or parent and child may not be invoked
in a proceeding under this
chapter.
15-14.1-33.
Warrant to take physical custody of child. – (a) Upon the filing of
a
petition seeking enforcement of
a child custody determination, the petitioner may file a verified
application for the issuance of
a warrant to take physical custody of the child if the child is
immediately likely to suffer
serious physical harm or be removed from this state.
(b)
If the court, upon the testimony of the petitioner or other witness, finds that
the child
is imminently likely to suffer
serious physical harm or be removed from this state, it may issue a
warrant to take physical custody
of the child. The petition must be heard on the next judicial day
after the warrant is executed
unless that date is impossible. In that event, the court shall hold the
hearing on the first judicial
day possible. The application for the warrant must include the
statements required by this
chapter.
(c)
A warrant to take physical custody of a child must:
(1)
recite the facts upon which a conclusion of imminent serious physical harm or
removal from the jurisdiction is
based;
(2)
direct law enforcement officers to take physical custody of the child
immediately; and
(3)
provide for the placement of the child pending final relief.
(d)
The respondent must be served with the petition, warrant, and order immediately
after
the child is taken into physical
custody.
(e)
A warrant to take physical custody of a child is enforceable throughout this
state. If
the court finds on the basis of
the testimony of the petitioner or other witness that a less intrusive
remedy is not effective, it may
authorize law enforcement officers to enter private property to
take physical custody of the
child. If required by exigent circumstances of the case, the court may
authorize law enforcement
officers to make a forcible entry at any hour.
(f)
The court may impose conditions upon placement of a child to ensure the
appearance
of the child and the child’s
custodian.
15-14.1-34.
Costs, fees, and expenses. – (a) The court may award the prevailing
party,
including a state, necessary and
reasonable expenses incurred by or on behalf of the party,
including costs, communication
expenses, attorneys’ fees, investigative fees, expenses for
witnesses, travel expenses, and
child care during the course of the proceedings.
(b)
The court may not assess fees, costs, or expenses against a state unless
authorized by
law other than this chapter.
15-14.1-35.
Recognition and enforcement. – A court of this state shall accord
full faith
and credit to an order issued by
another state and consistent with this chapter which enforces a
child custody determination by a
court of another state unless the order has been vacated, stayed,
or modified by a court having
jurisdiction to do so under this chapter.
15-14.1-36.
Appeals. – An appeal may be taken from a final order in a proceeding
under
this chapter in accordance with
expedited appellate procedures in other civil cases. Unless the
court enters a temporary
emergency order, the enforcing court may not stay an order enforcing a
child custody determination
pending appeal.
15-14.1-37.
Role of prosecutor or public official. -- (a) In a case arising
under this
chapter or involving the Hague
Convention on the Civil Aspects of International Child
Abduction, the prosecutor or
other appropriate public official may take any lawful action,
including resorting to a
proceeding under this chapter or any other available civil proceeding to
locate a child, obtain the
return of a child, or enforce a child custody determination if there is:
(1)
an existing child custody determination;
(2)
a request to do so from a court in a pending child custody proceeding;
(3)
a reasonable belief that a criminal statute has been violated; or
(4)
a reasonable belief that the child has been wrongfully removed or retained in
violation
of the Hague Convention on the
Civil Aspects of International Child Abduction.
(b)
A prosecutor or appropriate public official acting under this section acts on
behalf of
the court and may not represent
any party.
15-14.1-38.
Role of law enforcement. – At the request of a prosecutor or other
appropriate public official, a law
enforcement officer may take any lawful action reasonably
necessary to locate a child or a
party and assist a prosecutor or appropriate public official.
15-14.1-39.
Costs and expenses. – If the respondent is not the prevailing party,
the court
may assess against the
respondent all direct expenses and costs incurred by the prosecutor or
other appropriate public
official and law enforcement officers.
15-14.1-40.
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.
15-14.1-41.
Severability clause. – If any provision of this chapter or its
application to
any person or circumstance is held
invalid, the invalidity does not affect other provisions or
applications of this chapter
which can be given effect without the invalid provision or application,
and to this end the provisions
of this chapter are severable.
15-14.1-42.
Transitional provision. – A motion or other request for relief made
in a
child custody proceeding or to
enforce a child custody determination which was commenced
before the effective date of
this chapter is governed by the law in effect at the time the motion or
other request was made.
SECTION 3. This act shall take effect upon
passage.
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LC02056
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