HOUSE BILL 150

49th legislature - STATE OF NEW MEXICO - first session, 2009

INTRODUCED BY

Elias Barela

FOR THE COURTS, CORRECTIONS AND JUSTICE COMMITTEE

AN ACT

RELATING TO CHILD CUSTODY; PROVIDING FOR PETITIONS FOR AND ISSUANCE OF CHILD ABDUCTION PREVENTION ORDERS; PROVIDING PENALTIES; ENACTING THE UNIFORM CHILD ABDUCTION PREVENTION ACT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. SHORT TITLE.--This act may be cited as the "Uniform Child Abduction Prevention Act".

     Section 2. DEFINITIONS.--As used in the Uniform Child Abduction Prevention Act:

          A. "abduction" means the wrongful removal or wrongful retention of a child;

          B. "child" means an unemancipated individual who is less than eighteen years of age;

          C. "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. "Child-custody determination" includes a permanent, temporary, initial and modification order;

          D. "child-custody proceeding" means a proceeding in which legal custody, physical custody or visitation with respect to a child is at issue. "Child-custody proceeding" includes a proceeding for divorce, dissolution of marriage, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights or protection from domestic violence;

          E. "court" means an entity authorized pursuant to the law of a state to establish, enforce or modify a child-custody determination;

          F. "petition" includes a motion or its equivalent;

          G. "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;

          H. "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. "State" includes a federally recognized Indian nation, tribe or pueblo;

          I. "travel document" means records relating to a travel itinerary, including travel tickets, passes, reservations for transportation or accommodations. "Travel document" does not include a passport or visa;

          J. "wrongful removal" means the taking of a child, which taking breaches rights of custody or visitation given or recognized pursuant to the law of this state; and

          K. "wrongful retention" means the keeping or concealing of a child, which keeping or concealing breaches rights of custody or visitation given or recognized pursuant to the law of this state.

     Section 3. COOPERATION AND COMMUNICATION AMONG COURTS.--Sections 40-10A-110 through 40-10A-112 NMSA 1978 apply to cooperation and communication among courts in proceedings pursuant to the Uniform Child Abduction Prevention Act.

     Section 4. ACTIONS FOR ABDUCTION PREVENTION MEASURES.--

          A. A court on its own motion may order abduction prevention measures in a child-custody proceeding if the court finds that the evidence establishes a credible risk of abduction of the child.

          B. A party to a child-custody determination or another individual or entity having a right pursuant to the law of this state or any other state to seek a child-custody determination for the child may file a petition seeking abduction prevention measures to protect the child pursuant to the Uniform Child Abduction Prevention Act.

          C. A prosecutor or public authority designated pursuant to Section 40-10A-315 NMSA 1978 may seek a warrant to take physical custody of a child pursuant to Section 9 of the Uniform Child Abduction Prevention Act or other appropriate prevention measures.

     Section 5. JURISDICTION.--

          A. A petition pursuant to the Uniform Child Abduction Prevention Act may be filed only in a court that has jurisdiction to make a child-custody determination with respect to the child at issue pursuant to the Uniform Child-Custody Jurisdiction and Enforcement Act.

          B. A court of this state has temporary emergency jurisdiction pursuant to Section 40-10A-204 NMSA 1978 if the court finds a credible risk of abduction.

     Section 6. CONTENTS OF PETITION.--A petition pursuant to the Uniform Child Abduction Prevention Act shall be verified and include a copy of any existing child-custody determination, if available. The petition shall specify the risk factors for abduction, including the relevant factors described in Section 7 of the Uniform Child Abduction Prevention Act. Subject to the provisions of Subsection (e) of Section 40-10A-209 NMSA 1978, and if the information is reasonably ascertainable, the petition shall contain:

          A. the name, date of birth and gender of the child;

          B. the customary address and current physical location of the child;

          C. the identity, customary address and current physical location of the respondent;

          D. a statement of whether a prior action to prevent abduction or domestic violence has been filed by a party or other individual or entity having custody of the child and the date, location and disposition of the action;

          E. a statement of whether a party to the proceeding has been arrested for a crime related to domestic violence, stalking or child abuse or neglect and the date, location and disposition of the case; and

          F. any other information required to be submitted to the court for a child-custody determination pursuant to Section 40-10A-209 NMSA 1978.

     Section 7. FACTORS TO DETERMINE RISK OF ABDUCTION.--

          A. In determining whether there is a credible risk of abduction of a child, the court shall consider any evidence that the petitioner or respondent:

                (1) has previously abducted or attempted to abduct the child;

                (2) has threatened to abduct the child;

                (3) has recently engaged in activities that may indicate a planned abduction, including:

                     (a) abandoning employment;

                     (b) selling a primary residence;

                     (c) terminating a lease;

                     (d) closing bank or other financial management accounts, liquidating assets, hiding or destroying financial documents or conducting any unusual financial activities;

                     (e) applying for a passport or visa or obtaining travel documents for the respondent, a family member or the child; or

                     (f) seeking to obtain the child's birth certificate or school or medical records;

                (4) has engaged in domestic violence, stalking or child abuse or neglect;

                (5) has refused to follow a child-custody determination;

                (6) lacks strong familial, financial, emotional or cultural ties to the state or the United States;

                (7) has strong familial, financial, emotional or cultural ties to another state or country;

                (8) is likely to take the child to a country that:

                     (a) is not a party to the Hague Convention on the Civil Aspects of International Child Abduction and does not provide for the extradition of an abducting parent or for the return of an abducted child;

                     (b) is a party to the Hague Convention on the Civil Aspects of International Child Abduction but: 1) the Hague Convention on the Civil Aspects of International Child Abduction is not in force between the United States and that country; 2) the country is noncompliant according to the most recent compliance report issued by the United States department of state; or 3) the country lacks legal mechanisms for immediately and effectively enforcing a return order pursuant to the Hague Convention on the Civil Aspects of International Child Abduction;

                (c) poses a risk that the child's physical or emotional health or safety would be endangered in the country because of specific circumstances relating to the child or because of human rights violations committed against children;

                (d) has laws or practices that would: 1) enable the respondent, without due cause, to prevent the petitioner from contacting the child; 2) restrict the petitioner from freely traveling to or exiting from the country because of the petitioner's gender, nationality, marital status or religion; or 3) restrict the child's ability legally to leave the country after the child reaches the age of majority because of a child's gender, nationality or religion;

                (e) is included by the United States department of state on a current list of state sponsors of terrorism;

                (f) does not have an official United States diplomatic presence in the country; or

                (g) is engaged in active military action or war, including a civil war, to which the child may be exposed;

                (9) is undergoing a change in immigration or citizenship status that would adversely affect the respondent's ability to remain in the United States legally;

                (10) has had an application for United States citizenship denied;

                (11) has forged or presented misleading or false evidence on government forms or supporting documents to obtain or attempt to obtain a passport, a visa, travel documents, a federal social security card, a driver's license or other government-issued identification card or has made a misrepresentation to the United States government;

                (12) has used multiple names to attempt to mislead or defraud; or

                (13) has engaged in any other conduct the court considers relevant to the risk of abduction.

          B. In the hearing on a petition pursuant to the Uniform Child Abduction Prevention Act, the court shall consider any evidence that the respondent believed in good faith that the respondent's conduct was necessary to avoid imminent harm to the child or respondent and any other evidence that may be relevant to whether the respondent may be permitted to remove or retain the child.

     Section 8. PROVISIONS AND MEASURES TO PREVENT ABDUCTION.--

          A. If a petition is filed pursuant to the Uniform Child Abduction Prevention Act, the court may enter an order that shall include:

                (1) the basis for the court's exercise of jurisdiction;

                (2) the manner in which notice and opportunity to be heard were given to the persons entitled to notice of the proceeding;

                (3) a detailed description of each party's custody and visitation rights and residential arrangements for the child;

                (4) a provision stating that a violation of the order may subject the party in violation to civil and criminal penalties; and

                (5) identification of the child's country of habitual residence at the time of the issuance of the order.

          B. If at a hearing on a petition pursuant to the Uniform Child Abduction Prevention Act or on the court's own motion, the court, after reviewing the evidence, finds a credible risk of abduction of the child, the court shall enter an abduction prevention order. The order shall include the provisions required by Subsection A of this section and measures and conditions, including those set forth in Subsections C, D and E of this section, that are reasonably calculated to prevent abduction of the child, giving due consideration to the custody and visitation rights of the parties. The court shall consider the age of the child, the potential harm to the child from an abduction, the legal and practical difficulties of returning the child to the jurisdiction if abducted and the reasons for the potential abduction, including evidence of domestic violence, stalking or child abuse or neglect.

          C. An abduction prevention order may include one or more of the following:

                (1) an imposition of travel restrictions that require that a party traveling with the child outside a designated geographical area provide the other party with the following:

                     (a) the travel itinerary of the child;

                     (b) a list of physical addresses and telephone numbers at which the child can be reached at specified times; and

                     (c) copies of all travel documents;

                (2) a prohibition of the respondent directly or indirectly:

                     (a) removing the child from this state, the United States or another geographic area without permission of the court or the petitioner's written consent;

                     (b) removing or retaining the child in violation of a child-custody determination;

                     (c) removing the child from school or a child-care or similar facility; or

                     (d) approaching the child at any location other than a site designated for supervised visitation;

                (3) a requirement that a party register the order in another state as a prerequisite to allowing the child to travel to that state;

                (4) with regard to the child's passport:

                     (a) a direction that the petitioner place the child's name in the United States department of state's child passport issuance alert program;

                     (b) a requirement that the respondent surrender to the court or the petitioner's attorney any United States or foreign passport issued in the child's name, including a passport issued in the name of both the parent and the child; and

                     (c) a prohibition upon the respondent from applying on behalf of the child for a new or replacement passport or visa;

                (5) as a prerequisite to exercising custody or visitation, a requirement that the respondent provide:

                     (a) to the United States department of state office of children's issues and the relevant foreign consulate or embassy, an authenticated copy of the order detailing passport and travel restrictions for the child;

                     (b) to the court: 1) proof that the respondent has provided the information in Subparagraph (a) of this paragraph; and 2) an acknowledgment in a record from the relevant foreign consulate or embassy that no passport application has been made, nor passport issued, on behalf of the child;

                     (c) to the petitioner, proof of registration with the United States embassy or other United States diplomatic presence in the destination country and with the central authority for the Hague Convention on the Civil Aspects of International Child Abduction, if that convention is in effect between the United States and the destination country, unless one of the parties objects; and

                     (d) a written waiver pursuant to the Privacy Act, 5 U.S.C. Section 552a, as amended, with respect to any document, application or other information pertaining to the child authorizing its disclosure to the court and the petitioner; and

                (6) upon the petitioner's request, a requirement that the respondent obtain an order from the relevant foreign country containing terms identical to the child-custody determination issued in the United States.

          D. In an abduction prevention order, the court may impose conditions on the exercise of custody or visitation that:

                (1) limit visitation or require that visitation with the child by the respondent be supervised until the court finds that supervision is no longer necessary and order the respondent to pay the costs of supervision;

                (2) require the respondent to post a bond or provide other security in an amount sufficient to serve as a financial deterrent to abduction, the proceeds of which may be used to pay for the reasonable expenses of recovery of the child, including reasonable attorney fees and costs if there is an abduction; and

                (3) require the respondent to obtain education on the potentially harmful effects to the child from abduction.

          E. To prevent imminent abduction of a child, a court may:

                (1) issue a warrant to take physical custody of the child pursuant to Section 9 of the Uniform Child Abduction Prevention Act;

                (2) direct the use of law enforcement to take any action reasonably necessary to locate the child, obtain return of the child or enforce a custody determination pursuant to the Uniform Child Abduction Prevention Act; or

                (3) grant any other relief allowed pursuant to the law of this state other than the Uniform Child Abduction Prevention Act.

          F. The remedies provided in the Uniform Child Abduction Prevention Act are cumulative and do not affect the availability of other remedies to prevent abduction.

     Section 9. WARRANT TO TAKE PHYSICAL CUSTODY OF CHILD.--

          A. If a petition pursuant to the Uniform Child Abduction Prevention Act contains allegations that the child is imminently likely to be wrongfully removed and the court finds that there is a credible risk that the child is imminently likely to be wrongfully removed, the court may issue an ex parte warrant to take physical custody of the child.

          B. The respondent on a petition pursuant to Subsection A of this section shall be afforded an opportunity to be heard at the earliest possible time after the ex parte warrant is executed, but not later than the next judicial day unless a hearing on that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible.

          C. An ex parte warrant pursuant to Subsection A of this section to take physical custody of a child shall:

                (1) recite the facts upon which a determination of a credible risk of imminent wrongful removal of the child is based;

                (2) direct law enforcement officers to take physical custody of the child immediately;

                (3) state the date and time for the hearing on the petition; and

                (4) provide for the safe interim placement of the child pending further order of the court.

          D. If feasible, before issuing a warrant and before determining the placement of the child after the warrant is executed, the court may order a search of the relevant databases of the national crime information center system and similar state databases to determine if either the petitioner or respondent has a history of domestic violence, stalking or child abuse or neglect.

          E. The petition and warrant shall be served on the respondent when or immediately after the child is taken into physical custody.

          F. A warrant to take physical custody of a child, issued by this state or another state, is enforceable throughout this state. If the court finds that a less intrusive remedy will not be effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances, the court may authorize law enforcement officers to make a forcible entry at any hour.

          G. If the court finds, after a hearing, that a petitioner sought an ex parte warrant pursuant to Subsection A of this section for the purpose of harassment or in bad faith, the court may award the respondent reasonable attorney fees, costs and expenses.

          H. The Uniform Child Abduction Prevention Act does not affect the availability of relief allowed pursuant to the law of this state other than that act.

     Section 10. DURATION OF ABDUCTION PREVENTION ORDER.--An abduction prevention order remains in effect until the earliest of:

          A. the time stated in the order;

          B. the emancipation of the child;

          C. the child's attaining eighteen years of age; or

          D. the time the order is modified, revoked, vacated or superseded by a court with jurisdiction pursuant to Sections 40-10A-201 through 40-10A-203 NMSA 1978.

     Section 11. UNIFORMITY OF APPLICATION AND CONSTRUCTION.--In applying and construing the Uniform Child Abduction Prevention Act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

     Section 12. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT.--The Uniform Child Abduction Prevention Act modifies, limits and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but does not modify, limit or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).

     Section 13. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.

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