LC; N. I2’/3: RPT» #7 S/7‘ L7/QL//1? 87-424 A -;. 2'9".‘ '4'? >- ' fig CRS REPORT FOR CONGRESS R aid §_i‘;g.§i£ “fix, .V;.y_____t_. " -‘:~‘- rs‘. ;~ 3? in ‘ 13“ F?" ' ' ix.» .-:7;.~ 2 .: i .1 7* ‘— 2% £4 nu ‘E2. «<47 ‘vi --i-~-' -9; . 4 I :7’ ‘_.'~. .._ ’ 5‘ A’ "$9 "74 ..'--.2’. R g E :rm‘.”;i§i ‘~7T'*..Y vz ., .. ' .S._ i‘’-* [-3 * iv i ?"'R .. A «i Gov R E‘}*\”‘V’i;i€E-§I'§"{ ernme - . “t PUbHCatlOnS Unit AUG 1 7 i994 N W%shuit R - . . Ste on ijniversity i_,b,a,,-es - Louis, MQ 63130 POSSIBLE FEDERAL ENFORCEMENT OF INTERSTATE CHILD VISITATION ORDERS By Rita Ann Reimer Legislative Attorney American Law Division May 13, 1987 ssouri C u a “WWW. W Universiir of - ol mbi ' 2-‘ Mi R * O10-"lm0393982 . The Con essional Research Service works exclusively for the Cu , conducting research, analyzing legislation, and A nformation at the request of committees, Mem- a 0 their staffs. ‘ U ’ g" ’ L2, 3 . e makes such research available, without parti- any forms including studies, reports, compila- r r “ . « gests, and background briefings. Upon request, CRS ssists committees in, analyzing legislative proposals and issues, and in assessing the possible effects of these proposals and their alternatives. The Service’s senior specialists and subject analysts are also available for personal consultations in their respective fields of expertise. POSSIBLE FEDERAL ENFORCEMENT OF INTERSTATE CHILD VISITATION ORDERS When a marriage is dissolved, the court which enters the divorce decree determines as one component of that decree the future living arrangements of any children born of the marriage, acting either on its own initiative or, more frequently, by ratifying an agreement which has been worked out between the divorcing couple. While these cases are decided on an individual basis, they typically provide that one parent will have custody offthe child(ren), and the other will have access (visitation) at specified times and, perhaps, under specified conditions. Even if joint legal custody is decfeed, the childrep may live primarily with one parent and visit with the other as set forth in the court order. Grandparents, siblings, and others having a close relationship with a child are sometimes also granted visitation.1 Visitation orders are not final, but can be modified by any party on a showing of changed circumstances. For example, if a parent moves some distance away, it may be appropriate that the children have fewer but more lengthy visits with the noncustodial parent. The children's needs and desires may change as they grow older, or as stepparents and stepsiblings enter the scene. There are any number of reasons why an original visitation order may no longer be appropriate, and courts are generally sympathetic to modifications found to be in a child's "best interests" -- the governing standard in all of the states. Thus a custodial parent who feels that continued visitation with the non- custodial parent, or any other person authorized to visit by court order, is 1 Horowitz and Davidson, Legal Rights of Children § 6.11 (1984, 1985 Supp-)- CRS-2 detrimental to a child's best interests can return to the court which entered the original decree, seeking to have that decree modified in such a way as to reduce or eliminate the visitor's right of access. However, courts are reluctant to terminate parental visitation absent a showing of severe sexual or moral transgression on the part of the noncustodial parent, and its accompanying adverse impact on the child, the possibility of physical or emotional danger to the child, or comparable circumstances.2 Even in these cases a court may choose not to eliminate access entirely, but impose conditions on how visitation rights may be exercised (for example, the court may order that a third party always be present during visits, or that they take place only at the custodial home). Perhaps for this reason, some custodial parents simply deny access to their children without having first obtained the court's permission for this action. While no state penalizes refusal to comply with a child visitation order p2£_§S,3 failure to comply with a court order constitutes contempt of court in all states, and can lead to fines and/or imprisonment. Thus a person who has been denied court-ordered visitation should return to the court which entered the order and institute contempt proceedings against the person responsible for the denial. One question which varies from jurisdiction to jurisdiction is whether failure to make court-ordered child support payments is sufficient justification for refusal to permit visitation, and vice versa. Some courts 2 £23, § 6.11; comment, "Post-Divorce Visitation: A Study in the Deprivation of Rights," 27 DePaul L. Rev. 113 (1977). 3 While many states penalize "custodial interference, these laws on their face do not apply to denial of visitation rights, and they do not appear to be utilized for this purpose. CRS-3 have held that willful failure to make such payments can in fact be grounds for terminating visitation; while others, finding it in the child's best interests to maintain contact with both parents regardless of one's failure to provide the mandated support, have reached the opposite result.4 As long as the parties reside in the same jurisdiction, this situation can be relatively straightforward. However, should one reside in or move to a different jurisdiction, the situation becomes much more complicated. While some states have adopted "long arm" statutes to obtain jurisdiction over non- resident defendants in child custody cases, others have not;5 and even pertinent statutes can be cumbersome to utilize and may not apply in all situations.5 All states have now adopted the Uniform Child Custody Jurisdiction Act [UCCJA], under which they agree to recognize and enforce valid out-of—state child custody decrees.7 The Act encompasses vistitation orders, under § 2(2). Thus, if a custodial parent moves to another jurisdiction, the noncustodial parent may be able to have his or her decree recognized and enforced in the new jurisdiction. However, it is of less assistance if the noncustodial parent 4 Note, "Making Parents Behave: The Conditioning of Child Support and Visitation Rights," 84 Colum. L. Rev. 1059 (1984). 5 Areen, Family Law 666 (1978). 6 Note, "Long-Arm Jurisdiction in Alimony and Custody Cases," 73 Colum. L. 531. 289 (1973). 7 9 U.L.A. 28-29 (1987 Supp.). CRS—4 moves away, as having the order recognized in the new jurisdiction will do little good as long as that jurisdiction has no authority to enforce it.8 Also, the UCCJA takes a very flexible approach to child custody (visitation) jurisdiction, both because this was thought necessary for widespread state adoption of the Act and because such flexibility is thought desirable in dealing with the highly-individualized cases which arise in this area. Under § 3 of the UCCJA, the two primary bases for finding jurisdiction in a particular court to modify a custody (visitation) decree are that the court is located in the child's "home state,"9 or that the state has such significant connections with the parties that it is in the best interests of the child for that state to assume jurisdiction. However, courts can also assert jurisdiction based on "emergency circumstances" or, in some instances, "the best interest of the child," if no other state has jurisdiction based on the primary criteria or another state has deferred to the state in question as the proper forum to hear the case. Those courts that interpret these terms broadly can assert jurisdiction in cases where it can be argued that the framers‘ intent was to let the original court retain jurisdiction.1O Thus a party seeking recognition and enforcement of his or her visitation rights under 8 A court can enforce an order only against a party over whom it has jurisdiction or can obtain jurisdiction through use of a long arm or comparable procedure. Even if this is possible, it is in most cases easier and more straightforward to enforce the decree through the court which originally issued if, assuming that that court retains jurisdiction over the custodial parent and children. 9 The "home state" is defined as "the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as a parent, for at least six consecutive months, and in the case of a , child less than six months old, that state in which the child lived from birth with any of the persons mentioned." UCCJA § 2(5). 10 See, e.g., Foster, "Child Custody Jurisdiction: UCCJA and PKPA," 27 N.Y.L. Sch. L. Rev. 297 (1981). CRS—5 the UCCJA may risk court modification of these rights in what he or she might consider to be an unacceptable manner. The preceding discussion is entirely concerned with state laws and procedures, because Congress has limited authority to legislate on family law questions. These matters do not readily fall within any of the so-called "enumerated powers" set forth at Art. I, § 8, of the Constitution (a listing of areas in which Congress is authorized to legislate); so, under that section and the tenth amendment, they are primarily reserved for state action. However, there is a federal law, the Parental Kidnapping Prevention Act [PKPA] of 1980,11 which requires states to give full faith and credit to each other's valid custody decrees. As with the UCCJA, the PKPA by its terms encompasses visitation orders.12 Congressional authority to impose this requirement is based on the full faith and credit clause, Art. IV, § 1, of the Constitution, which provides: Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may be general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. On its face, this language implies that a final domestic relations decree entered in one state should be uniformly recognized by all of the other states. However, this is frequently not the case, because in many instances a second state will assert its own jurisdiction to modify an original decree or to enter a new decree which in its view supersedes the original one. Also, most visitation decrees are not considered final for purposes of the full faith and 11 Pub. L. 98-611, §§ 6-10, 94 Stat. 3566, 3568. 12 28 u.s.c. § l738A(b)(3). CRS—6 credit c1ause,since they can be modified by the issuing state. Thus the doctrine of res judicata, which holds that once a matter has been finally adjudicated it cannot be reopened or collaterally attacked in the original state or elsewhere, does not apply in these cases.13 The PKPA's full faith and credit requirements are set forth at 28 U.S.C. § 1738A. Under § l738(c)(1), before a state court can decide a child custody (or visitation) case, it must first have jurisdiction over the matter under its own laws. Since all states have adopted the UCCJA, the jurisdictional bases discussed above would apply. In addition, one of the jurisdictional bases set forth at § l738A(c)(2) must be met. These are roughly comparable to those contained in § 3 of the UCCJA, except that the "home state" nexus (§ l738A(c)(A)) supersedes the "significant contacts" nexus (§ l738A(c)(2)(B)) if in fact a home state exists.14 Once a state has jurisdiction, it retains jurisdiction as long as its own laws continue to authorize this and the child or a contestant continues to reside in that state (§ 1738A(d)). A state can only modify another state's custody/visitation determination if the second state has jurisdiction to make the determination, and the first state no longer has jurisdiction or has declined to exercise its jurisdiction (§ l738A(f)). (A state may decline to exercise jurisdiction on the ground that the state whose jurisdiction is at 13 New York ex rel. Halvey v. Halvey, 330 U.S. 610 (1947); Kovacs v. Brewer, 356 U.S. 604 (1958); Ford v. Ford, 371 U.S. 187 (1962); May v. Anderson, 345 U.S. 528 (1953). These cases all involve child custody decrees, but their reasoning is equally applicable to visitation orders, which, like custody decrees, can be modified on a showing of changed circumstances. 14 The definition of "home state" at § 1738A(b)(4) is identical to that of UCCJA § 2(5), supra n. 9. CRS—7 issue is the more appropriate forum to determine the custody of the child (§ l738A(c)(2)(D)). Finally, a state cannot exercise jurisdiction in any proceeding for a custody/visitation determination which is commenced while a similar proceeding is pending in another state, if the other state is exercising jurisdiction consistently with the terms of the PKPA (§ l738A(g). In some cases a person seeking to assert his or her visitation rights may not know where the custodial parent and children are living. The PKPA authorizes the use of the Parental Locator Service [PLS], an office in the Department of Health and Human Services [HHS] which was originally established to help locate parents who owe child support obligations, to locate the missing parties in these cases.15 Finally, the federal Child Support Enforcement Act16 mandates that states implement numerous procedures, including mandatory wage garnishment, to insure that noncustodial parents contribute to their children's support. A person making payments in accordance with this law would clearly be entitled to have his or her visitation rights restored if they had been curtailed or eliminated for non-payment of support. 6 However, neither the UCCJA nor the PKPA is primarily intended to help those awarded visitation assert these rights. Rather, these laws were designed to eliminate conflicting custody decrees, where a noncustodial parent would 15 42 u.s.c. § 663. 15 42 U.S.C. §§ 651-667. The federal nexus for this requirement is the large sum of federal money which is used to fund the Aid to Families with Dependent Children [AFDC] program, in that Congress determined that this amount could be substantially reduced if noncustodial parents who were not supporting their children could be made to so. The program also covers non—AFDC families, since in many instances the sums recovered are all that is keeping these families off welfare. CRS-8 take a child to another jurisdiction and obtain a conflicting custody order based on "changed circumstances" in the second state. (Frequently the only circumstance which had changed was that the child was now living in another state, with the other parent.)17 It is unlikely that the PKPA would have been enacted had the UCCJA worked as intended; however, as already noted, courts interpreted its jurisdictional bases for changing custody quite broadly. Also, only 39 states had adopted the UCCJA at the time the PKPA was enacted,18 leaving several "haven states" for those seeking to circumvent lawful custody decrees. There is little reported case law concerned specifically with visitation under either the PKPA or the UCCJA. Not surprisingly, much of what there is involves efforts to modify, rather than enforce, a visitation order.19 (Presumably most of these cases involve situations where one or both of the parties have moved since the original decree was entered, making modification appropriate.) There are also a few cases in which a grandparent sought to assert visitation rights under the UCCJA, without noticeable success.20 There have been various attempts to strengthen federal parental kidnapping laws since the enactment of the PKPA, although to date these efforts have been 17 9 U.L.A. 111-114 (1979). 13 9 U.L.A. 28029 (1987 Supp.). 19 8.3., Serna v. Salazar, 98 N.M. 648, 651 P.2d 1292 (l982)(PKPA); Allison v. Superior Court of Los Angeles County, 160 Cal. Rptr. 309, 99 Cal. App. 3d 993 (1979)(UCCJA). Cases decided under the UCCJA in which a court declined to assert jurisdiction over an original court's visitation order include Barden v. Blau, 712 P.2d 481 (Colo. 1986); Sholtz v. Carruth, 126 Ariz. 458, 616 P.2d 918 (1980); Nicols v. Nicols, 429 N.Y.S. 2d 234, 76 A.D. 2d 910 (1980). 20 E.g., Becker v. Watanabe, 486 N.Y.S. 2d 781, 109 A.D. 2d 861 (1985); Louise G. v. Peter C., 411 N.Y.S. 2d 101, 97 Misc. 2d 338 (1978). CRS—9 unsuccessful. The most straightforward approach would be to simply remove the parental kidnapping exception from the federal kidnapping statute, 18 U.S.C. § 1201.21 Others would create a separate federal offense of parental kidnapping, child stealing, or custodial interference.22 These proposals are based on congressional authority to regulate interstate commerce,23 and most include a presumption comparable to that found in the present kidnapping law that a child who is not returned to his or her home within a specified interval has been taken from the state. Another approach would vest jurisdiction in federal district courts to enforce state custody orders against a parent who, in violation of the order, takes a child to another state.24 There is no reason why Congress, if it so desired, could not adopt comparable legislation dealing with visitation rights, again under its commerce clause authority. However, two policy considerations should also be noted in this regard. First, there is increasing concern over federal court congestion, and Congress might be reluctant to create a federal cause of action in what has traditionally been an area left to state regulation. Also, Congress might be 21 E.g., H.R. 2828, 99th Cong. (Rep. Owens). 22 E.g., H.R. 1440, 97th Cong. (Rep. Sawyer); H.R. 1322, 98th Cong. (Rep. M. Edwards); H.R. 2201, 99th Cong. (Rep. M. Edwards). 23 U.S. Const. Art. I, § 8, cl. 3. 24 E.g., H.R. 223, 97th Cong. (Rep. Fish); H.R. 573, 98th Cong. (Rep. Fish). CRS-10 reluctant to impose harsher penalties than have any of the states in an area, again, in which the states have primary jurisdiction. /( /3; 2 - ,3 / ((7-; K} L.-{_/k“__v 7 Rita Ann Reimer Legislative Attorney American Law Division May 13, 1987 A ST. LOUIS - MO. LIBRARY; 6 % OF .. WASHINGTON ‘* UNIVERSITY '