Committee Report

April 19, 2023

H. 3220

Introduced by Reps. W. Newton, Carter, Mitchell, Haddon and Pope

 

S. Printed 04/19/23--H.

Read the first time January 10, 2023

 

________

 

The committee on House Judiciary

To who was referred a Bill (H. 3220) to amend the South Carolina Code of Laws by adding Article 6 to Chapter 15, Title 63 so as to enact the "Uniform Child Abduction Prevention Act", to provide a legal, etc., respectfully

Report:

That they have duly and carefully considered the same, and recommend that the same do pass:

 

WESTON NEWTON for Committee.

 

statement of estimated fiscal impact

Explanation of Fiscal Impact

 

State Expenditure

This bill creates the Uniform Child Abduction Prevention Act and grants the court specific powers in cases involving child-custody determinations where there is evidence of a credible risk of abduction of the child.  These powers include, but are not limited to, the ability to make motions, obtain temporary emergency jurisdiction, enter an abduction prevention order, issue an ex parte warrant, and order a search of the National Crime Information Center system.  In addition, the bill enables parties to a child-custody determination to seek abduction prevention measures to protect the child.  The bill also authorizes law enforcement agencies to enter private property in their efforts to locate or return a child who is part of a child-custody determination.

 

Judicial.  Judicial reports that the bill will have a minimal expenditure impact that can be managed using existing staff and appropriations.

 

Commission on Prosecution Coordination.  The Commission reports that the bill will have a minimal expenditure impact that can be managed using existing staff and appropriations.

Commission on Indigent Defense.  The Commission reports that the bill will have no expenditure impact, as any additional responsibility required by the bill can be managed using existing staff and appropriations.

 

Department of Social Services.  DSS reports that the bill will have no expenditure impact, as any additional responsibility required by the bill can be managed using existing staff and appropriations.

 

Local Expenditure

As this bill does not require local law enforcement agencies to conduct activities outside the normal scope of business, no expenditure impact on local or municipal governments is expected.

 

 

Frank A. Rainwater, Executive Director

Revenue and Fiscal Affairs Office

 

________

 

 

 

 

 

 

 

 

 

A bill

 

to amend the South Carolina Code of Laws BY ADDING ARTICLE 6 TO CHAPTER 15, TITLE 63 SO AS TO ENACT THE "UNIFORM CHILD ABDUCTION PREVENTION ACT", TO PROVIDE A LEGAL MECHANISM TO PROTECT CHILDREN FROM CREDIBLE RISKS OF ABDUCTION RELATED TO LEGAL CUSTODY OR VISITATION, AND FOR OTHER PURPOSES.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  This act may be cited as the "Uniform Child Abduction Prevention Act".

 

SECTION 2.  Chapter 15, Title 63 of the S.C. Code is amended by adding:

 

Article 6

 

Uniform Child Abduction Prevention Act

 

    Section 63-15-600. As used in this article:

    (1) "Abduction" means the wrongful removal or wrongful retention of a child.

    (2) "Child" means an unemancipated individual who is less than eighteen 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.

    (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, dissolution of marriage, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, or protection from domestic violence.

    (5) "Court" means an entity authorized under the law of a state to establish, enforce, or modify a child-custody determination.

    (6) "Petition" means a motion or its equivalent.

    (7) "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.

    (8) "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. The term includes a federally recognized Indian tribe or nation.

    (9) "Travel document" means records relating to a travel itinerary, including a travel ticket, pass, reservation for transportation, or accommodation. The term does not include a passport or visa.

    (10) "Wrongful removal" means the taking of a child that breaches rights of custody or visitation given or recognized under the law of this State.

    (11) "Wrongful retention" means the keeping or concealing of a child that breaches rights of custody or visitation given or recognized under the law of this State.

 

    Section 63-15-610. Sections 63-15-318, 63-15-320, and 63-15-322 apply to cooperation and communication among courts in proceedings under this article.

 

    Section 63-15-620. (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 under the law of this State or another state to seek a child-custody determination for the child may file a petition seeking abduction prevention measures to protect the child under this article.

    (C) A prosecutor or public authority designated under section 63-15-378 may seek a warrant to take physical custody of a child under Section 63-15-670 or other appropriate prevention measures.

 

    Section 63-15-630. (A) A petition under this article may be filed only in a court that has jurisdiction to make a child-custody determination with respect to the child at issue under Article 3.

    (B) A court of this State has temporary emergency jurisdiction under Section 63-15-336 if the court finds a credible risk of abduction.

 

    Section 63-15-640. A petition under this article must be verified and include a copy of any existing child-custody determination, if available. The petition must specify the risk factors for abduction, including the relevant factors described in Section 63-15-650. Subject to Section 63-15-346(E), if reasonably ascertainable, the petition must contain:

    (1) the name, date of birth, and gender of the child;

    (2) the customary address and current physical location of the child;

    (3) the identity, customary address, and current physical location of the respondent;

    (4) 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;

    (5) 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

    (6) any other information required to be submitted to the court for a child-custody determination under Section 63-15-346.

 

    Section 63-15-650. (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 a bank account or other financial management accounts, liquidating assets, hiding or destroying financial documents, or conducting 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, child abuse, or neglect;

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

       (6) lacks strong familial, financial, emotional, or cultural ties to this 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:

               (i) the Hague Convention on the Civil Aspects of International Child Abduction is not in force between the United States and that country;

               (ii) is noncompliant according to the most recent compliance report issued by the United States Department of State; or

               (iii) lacks legal mechanisms for immediately and effectively enforcing a return order under 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:

               (i) enable the respondent, without due cause, to prevent the petitioner from contacting the child;

               (ii) restrict the petitioner from freely traveling to or exiting from the country because of the petitioner's gender, nationality, marital status, or religion; or

               (iii) 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 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 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 under this article, the court shall consider 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 63-15-660. (A) If a petition is filed under this article, the court may enter an order that must 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 under this article 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 must include the provisions required by subsection (A) and measures and conditions, including those in subsections (C), (D), and (E), that are reasonably calculated to prevent abduction of the child, giving due consideration to the custody and visitation rights of a party. 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 may be reached at specified times; and

           (c) a copy 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 geographical 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 childcare or similar facility; or

           (d) approaching the child at a 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:

               (i) proof that the respondent has provided the information in subitem (a); and

               (ii) an acknowledgment in a record from the relevant foreign consulate or embassy that no passport application has been made, or 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 under 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 a reasonable attorney's fee 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 under Section 63-15-670 or the law of this State other than this article;

       (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 under this article or the law of this State other than this article; or

       (3) grant other relief allowed under the law of this State other than this article.

    (F) The remedies provided in this article are cumulative and do not affect the availability of other remedies to prevent abduction.

 

    Section 63-15-670. (A) If a petition under this article contains allegations, 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 under subsection (A) must be afforded an opportunity to be heard at the earliest possible time after the ex parte warrant is executed, but no 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 under subsection (A) to take physical custody of a child must:

       (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 must 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 under subsection (A) for the purpose of harassment or in bad faith, the court may award the respondent reasonable attorney's fees, costs, and expenses.

    (H) This article does not affect the availability of relief allowed under the law of this State other than this article.

 

    Section 63-15-680. An abduction prevention order remains in effect until the earliest of:

       (1) the time stated in the order;

       (2) the emancipation of the child;

       (3) the child's attaining eighteen years of age; or

       (4) time the order is modified, revoked, vacated, or superseded by a court with jurisdiction under Sections 63-15-330, 63-15-332, and 63-15-334.

 

    Section 63-15-690. In applying and construing this article, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact the Uniform Child Abduction Prevention Act.

 

SECTION 3.  The Uniform Child Abduction Prevention Act modifies, limits, and supersedes the federal Electronic Signature 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 the act, 15 U.S.C. Section 7001(c) of that act, 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 4.  The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide.  After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

 

SECTION 5.  If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

 

SECTION 6.  This act takes effect upon approval by the Governor.

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