I had some wonderful correspondence with Kent Weichmann, Chair of the FLS Legislative Committee. There have been many family law legislative acts and/or amendments enacted in this past legislative session. I want to personally thank Kent, Bill Kandler, and Sen. Rick Jones (sponsor) for passage of The Uniform Child Abduction Prevention Act (UCAPA) (SB 325). This brings the number of states enacting UCAPA to fifteen.
UCAPA, MCL 722.1521 et seq., became effective on January 12, 2015 and provides family courts with authority to take measures to prevent child abduction, both interstate and international.
Under UCAPA, a court may, on its own initiative or upon motion, order abduction prevention measures in a custody proceeding if evidence establishes “a credible risk” of child abduction. A verified petition seeking prevention measures may be sought by a party or other individual entitled to seek a custody determination for the child. Note, however, that a petition may only be filed in a court that has jurisdiction under the UCCJEA. MCL 722.1525(1). That doesn't mean that the court has to have "home state" jurisdiction under the UCCJEA. Section 204 of the UCCJEA may provide jurisdiction in another state If the court finds a credible risk of abduction and invokes temporary emergency jurisdiction.
Once the petition is filed, the family court must evaluate whether there is a credible risk of child abduction. The Act lists many issues a court should consider in assessing the risk. Essentially, the Act provides a "profile" of things someone might do when preparing to run with the child, such as cancel a lease, close bank accounts, quit a job, liquidate assets. See MCL 722.1527(1). However, those described acts, if carried out to avoid domestic violence or imminent harm to the child or the respondent, cannot be the basis for an abduction prevention order. See Section 7 of Michigan's UCAPA legislation. Download MCL 722.1527 The language of Section 7 enacted in Michigan differs from the Uniform Law. Compare with the Uniform Law. I encourage you to download and read the Uniform Act and Commentary. They will be very helpful to you if you need to draft a UCAPA Motion and proposed Order. Download NCCUSL.UCAPA_&_COMMENTARY
An abduction prevention order containing provisions that are “reasonably calculated to prevent abduction of the child," after consideration of the custody and visitation rights of the parties and the safety of the parties and the child, must be entered If the court finds a credible risk of child abduction under MCL 722.1527. The Act states both optional and required provisions. The reasons for entry of the Order should be made clear on the face of the Order by the issuing Court.
POSSIBLE PREVENTION MEASURES:
Some prevention measures that a family court may order are the following:
- travel restrictions and documentation requirements,
- restrictions on the child’s passport,
- prerequisites to exercising custody or visitation,
- a requirement that the respondent obtain a custody order with identical terms from the relevant foreign jurisdiction,
- limited or supervised visitation,
- a requirement that the respondent post a bond or give security as a financial deterrent to abduction,
- education on the potential harm to the child from abduction, and
- other measures designed to prevent the child’s imminent abduction.
EX PARTE ORDERS:
Michigan's Family Courts rarely enter ex parte orders. However, if, under Section 8 of UCAPA, the court finds a credible risk that the child is “imminently likely to be wrongfully removed,” the court has authority to issue an ex parte warrant to take custody of the child. [See Section 9] Note that the Act provides for a hearing on the next available court date in order to satisfy due process concerns if an ex parte order is entered.
Having been involved in at least 20 interstate and international parental child abductions in the past eight or nine years, I am truly pleased to see this legislation enacted.
You may read more about parental abduction on this blog here: