Hawaii UCCJEA
Haw. Rev. Stat. § 583A-101 et seq.
§ 583A-101 Short title
This chapter may be cited as the Uniform Child-Custody
Jurisdiction and Enforcement Act.
§ 583A-102 Definitions
In this chapter:
"Abandoned" means left without provision for reasonable and
necessary care or supervision.
"Child" means an individual who has not attained eighteen years
of age.
"Child-custody determination" means a judgment, decree, or other
order of a court providing for 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.
"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 part III.
"Commencement" means the filing of the first pleading in a
child-custody proceeding.
"Court" means an entity authorized under the law of a state to
establish, enforce, or modify a child-custody determination.
"Home state" means the state in which a child lived with a parent
or a person acting as a parent for a period of at least six consecutive months
immediately before the commencement of a child-custody proceeding. In the case
of a child less than six 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.
"Initial determination" means the first child-custody
determination concerning a particular child.
"Issuing court" means the court that makes a child-custody
determination for which enforcement is sought under this chapter.
"Issuing state" means the state in which a child-custody
determination is made.
"Modification" means a child-custody determination that changes,
replaces, supersedes, 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.
"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.
"Person acting as a parent" means a person, other than a parent,
who:
(1) Has physical custody of the child or has had physical
custody for a period of six consecutive months, including any temporary absence,
within one year immediately before the commencement of a child-custody
proceeding; and
(2) Has been awarded legal custody by a court or claims a
right to legal custody under the law of this State.
"Physical custody" means the physical care and supervision of a
child.
"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.
"Sibling" refers to full-blood brothers and sisters, and step and
half blood siblings.
"Tribe" means an Indian tribe or band, or Alaskan Native village,
which is recognized by federal law or formally acknowledged by a state.
"Warrant" means an order issued by a court authorizing law
enforcement officers to take physical custody of a child.
§ 583A-103 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.
§ 583A-104 Application to Indian tribes
(a) A child-custody proceeding that pertains to an Indian child
as defined in the Indian Child Welfare Act, 25 United States Code section 1901
et seq., shall not be 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 parts I and II.
(c) A child-custody determination made by a tribe under factual
circumstances in substantial conformity with the jurisdictional standards of
this chapter shall be recognized and enforced under part III.
§ 583A-105 International application of chapter
(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 parts I and II.
(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 shall be recognized and enforced under part III.
(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.
§ 583A-106 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 section
583A-108 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.
§ 583A-107 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.
§ 583A-108 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 the 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.
§ 583A-109 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 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.
§ 583A-110 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 matters may occur without 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 a communication under this section. The parties must be informed
promptly of the communication and granted access to the record.
(e) For the purposes of this section, "record" means information
that is:
(1) Inscribed on a tangible medium; or
(2) Stored in an electronic or other medium;
and is retrievable in perceivable form. It includes a written
summary prepared and approved by the presiding judge and entered into the court
record.
§ 583A-111 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 deposition 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 shall not be excluded from evidence on an objection based on the means
of transmission.
§ 583A-112 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 law 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 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.
§ 583A-201 Initial child-custody jurisdiction
(a) Except as otherwise provided in section 583A-204, 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 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 under section 583A-207 or 583A-208, and:
(A) 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
(B) 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 under
section 583A-207 or 583A-208; or
(4) No court of any other state would have jurisdiction under
the criteria specified in paragraph (1), (2), or (3).
(b) Subsection (a) shall be 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 shall not be necessary or sufficient to make a child-custody
determination.
§ 583A-202 Exclusive, continuing jurisdiction
(a) Except as otherwise provided in section 583A-204, a court of
this State which has made a child-custody determination consistent with section
583A-201 or 583A-203 has exclusive, continuing jurisdiction over the
determination until:
(1) A court of this State determines that 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 under section 583A-201.
§ 583A-203 Jurisdiction to modify determination
Except as otherwise provided in section 583A-204, a court of this
State shall 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 under section 583A-201(a)(1) or (2) and:
(1) The court of the other state determines it no longer has
exclusive, continuing jurisdiction under section 583A-202 or that a court of
this State would be a more convenient forum under section 583A-207; 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.
§ 583A-204 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 under sections
583A-201 to 583A-203, a child-custody determination made under this section
remains in effect until an order is obtained from a court of a state having
jurisdiction under sections 583A-201 to 583A-203. If a child-custody proceeding
has not been or is not commenced in a court of a state having jurisdiction under
sections 583A-201 to 583A-203, 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 under sections 583A-201
to 583A-203, 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
under sections 583A-201 to 583A-203. The order issued in this State shall remain
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 under sections 583A-201
to 583A-203, shall immediately communicate with the other court. A court of this
State which is exercising jurisdiction pursuant to sections 583A-201 to
583A-203, 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.
§ 583A-205 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 the standards
of section 583A-108 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.
§ 583A-206 Simultaneous proceedings
(a) Except as otherwise provided in section 583A-204, a court of
this State shall not exercise its jurisdiction under this part 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 under section 583A-207.
(b) Except as otherwise provided in section 583A-204, 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 section
583A-209. If the court determines 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.
§ 583A-207 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 the 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;
(8) The familiarity of the court of each state with the facts
and issues in the pending litigation; and
(9) The physical and psychological health of the parties.
(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.
§ 583A-208 Jurisdiction declined by reason of conduct
(a) Except as otherwise provided in section 583A-204, 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 under
sections 583A-201 to 583A-203 determines that this State is a more appropriate
forum under section 583A-207; or
(3) No court of any other state would have jurisdiction under
the criteria specified in sections 583A-201 to 583A-203.
(b) If a court of this State declines 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 under sections 583A-201 to 583A-203.
(c) If a court dismisses a petition or stays a proceeding because
it declines to exercise its jurisdiction pursuant to subsection (a), it may
assess against the party seeking to invoke its jurisdiction necessary and
reasonable expenses including costs, communication expenses, attorney's 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
is a protective parent fleeing abuse, or 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.
§ 583A-209 Information to be submitted to court
(a) 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 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 addresses 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
subsection (a)(1) to (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 shall have a continuing duty to inform the court
of any proceeding in this or any other state that could affect the current
proceeding.
(e) Upon a finding, which may be ex parte, that the health,
safety, or liberty of a party or child would be unreasonably put at risk by the
disclosure of identifying information, or if an existing order so provides, the
court shall order that the address of the child or party or other identifying
information shall not be disclosed in a pleading or other documents filed in a
proceeding under this section.
§ 583A-210 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 section 583A-108 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.
§ 583A-301 Definitions
In this part:
"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.
"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.
§ 583A-302 Enforcement under Hague Convention
Under this part 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.
§ 583A-303 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 part are cumulative and do not
affect the availability of other remedies to enforce a child-custody
determination.
§ 583A-304 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 part II. The order remains in effect until an order is
obtained from the other court or the period expires.
§ 583A-305 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 copies, including one 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 in section 583A-209, 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 cause the determination to be filed as a foreign
judgment, together with one copy of any accompanying documents and information,
regardless of their form.
§ 583A-306 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 part II, a registered child-custody
determination of a court of another state.
§ 583A-307 Simultaneous proceedings
If a proceeding for enforcement under this part 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 part II, 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.
§ 583A-308 Expedited enforcement of child-custody determination
(a) A petition under this part shall be verified. Certified
copies of all orders sought to be enforced and of any order confirming
registration shall 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 attorney's fees is sought, including a request for
assistance from law enforcement officers and, if so, the relief sought; and
(6) If the child-custody determination has been registered and
confirmed under section 583A-305, 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 shall be held 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
will order that the petitioner may take immediate physical custody of the child
and the payment of fees, costs, and expenses under section 583A-312, 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 under section 583A-305, and that:
(A) The issuing court did not have jurisdiction under part
II;
(B) The child-custody determination for which enforcement
is sought has been vacated, stayed, or modified by a court having jurisdiction
to do so under part II;
(C) The respondent was entitled to notice, but notice was
not given in accordance with the standards of section 583A-108, 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 under section 583A-305, but has been
vacated, stayed, or modified by a court of a state having jurisdiction to do so
under part II.
§ 583A-309 Service of petition and order
Except as otherwise provided in section 583A-311, 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.
§ 583A-310 Hearing and order
(a) Unless the court issues a temporary emergency order pursuant
to section 583A-204, 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 issuing court did not have jurisdiction under part II;
(2) 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 under part II; or
(3) The respondent was entitled to notice, but notice was not
given in accordance with the standards of section 583A-108, in the proceedings
before the court that issued the order for which enforcement is sought.
(b) The court may award the fees, costs, and expenses authorized
under section 583A-312 and may grant additional relief, including a request for
the assistance of law enforcement officers, and set a further hearing to
determine whether additional relief is appropriate.
(c) If a party called to testify refuses to answer on the ground
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 part.
§ 583A-311 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
imminently 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 shall be heard on the first judicial day
possible. The application for the warrant must include the statements required
by section 583A-308(b).
(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.
§ 583A-312 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, attorney's fees, investigative fees,
expenses for witnesses, travel expenses, and child care during the course of the
proceedings, unless the party from whom fees or expenses are sought establishes
that the award would be clearly inappropriate.
(b) The court may not assess fees, costs, or expenses against a
state unless authorized by law other than this chapter.
§ 583A-313 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
part II.
§ 583A-314 Appeals
An appeal may be taken from a final order in a proceeding under
this part in accordance with expedited appellate procedures in other civil
cases. Unless the court enters a temporary emergency order under section
583A-204, the enforcing court shall not stay an order enforcing a child-custody
determination pending appeal.
§ 583A-315 Role of attorney general and of prosecuting attorneys
(a) In a case arising under this chapter or involving the Hague
Convention on the Civil Aspects of International Child Abduction, the attorney
general or the county prosecuting attorney, as appropriate, may take any lawful
action, including resort to a proceeding under this part 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) The attorney general or county prosecuting attorney, as
appropriate, acting under this section acts on behalf of the court and shall not
represent any party.
§ 583A-316 Role of law enforcement
At the request of the attorney general or county prosecuting
attorney, as appropriate, acting under section 583A-315, a law enforcement
officer may take any lawful action reasonably necessary to locate a child or a
party and assist the attorney general or county prosecuting attorney with
responsibilities under section 583A-315.
§ 583A-317 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
attorney general or county prosecuting attorney, as appropriate, and law
enforcement officers under section 583A-315 or 583A-316.
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