Nebraska Enacts Uniform Child Abduction Prevention Act

On February 2, 2007, Nebraska became the first state to enact the Uniform Child Abduction Prevention Act. The purpose of the Act is to help parents prevent the other parent from taking children out of Nebraska or out of the United States and refusing to return them. The Act went into effect immediately. Below are some basic questions and answers explaining how the Act works. If you have further questions, you can comment on this post or email me and I will answer them in this blog.

What does the Uniform Child Abduction Prevention Act do?

Briefly, the Act allows a person to file a petition to protect a child from abduction by seeking “abduction prevention measures.” The Act also authorizes a court to order such measures on its own and authorizes a county attorney or the Attorney General to seek a warrant for such measures.

Who can file a petition under the Act?

Any person who is a party to a court order of child custody or visitation can file the petition. You do not have to be the “custodial parent.” Also, any person or entity who would have the right to seek a court order for child custody or visitation may file a petition under the Act.

How much proof is necessary for the court to enter an order?

The court must find that there is a credible risk of abduction.

What does the court look at to decide whether there is a credible risk of abduction?

The court will look at the following factors in making its determination:

- Has the parent in question previously abducted, attempted to abduct, or threatened to abduct the child?

- Has the parent in question 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 themselves, a family member, or the child; or

(F) seeking to obtain the child’s birth certificate or school or medical records?

- Has the parent in question engaged in domestic violence, stalking, or child abuse or neglect?

- Has the parent in question refused to follow a child custody determination?

- Does the parent in question lack strong familial, financial, emotional, or cultural ties to the state or the United States?

- Does the parent in question have strong familial, financial, emotional, or cultural ties to another state or country?

- Is the parent in question undergoing a change in immigration or citizenship status that would adversely affect his or her ability to remain in the United States legally?

- Has the parent in question had an application for United States citizenship denied?

- Has the parent in question 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?

- Has the parent in question used multiple names to attempt to mislead or defraud?

- Is the parent in question likely to disregard a determination by a court of Nebraska to not recognize and enforce a foreign child custody determination?

- Is the parent in question 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 person in question, without due cause, to prevent the person seeking the order from contacting the child;

(ii) restrict the person seeking the order from freely traveling to or exiting from the country because of that person’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?

What if I keep the child in my custody to prevent my ex-husband/ex-wife from hurting my child and my ex files one of these petitions against me?

If a petition is filed against you, you will have to go to court to address the problem. However, at the hearing, the court will consider any evidence that you believed in good faith that your conduct was necessary to avoid imminent harm to the child or you and any other evidence that may be relevant to whether you may be permitted to remove or retain the child.

What will the court do if the judge finds that there is a credible risk of abduction?

The court will issue an abduction prevention order that may include one or more of the following:

- imposing 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;

- prohibiting the person in question from directly or indirectly:

(A) removing the child from this state, the United States, or another geographic area without permission of the court or the written consent of the person seeking the order;

(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;

- requiring that a party register the order in another state as a prerequisite to allowing the child to travel to that state;

- with regard to the child’s passport:

(A) directing the person seeking the order to place the child’s name in the United States Department of State’s Child Passport Issuance Alert Program;

(B) requiring the person in question to surrender to the court or the attorney of the person seeking the order 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) prohibiting the person in question from applying on behalf of the child for a new or replacement passport or visa;

- as a prerequisite to exercising custody or visitation, requiring the person in question:

(A) to provide an authenticated copy of the order detailing passport and travel restrictions for the child to the United States Department of State Office of Children’s Issues and the relevant foreign consulate or embassy;

(B) to provide proof to the court that he or she has done so;

(C) to provide to the court 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; and

(D) to provide to the person seeking the order proof of registration with the United States Embassy or other United States diplomatic presence in the destination country, unless one of the parties objects; and

- Upon request, requiring the person in question to obtain an order from the relevant foreign country containing terms identical to the child custody determination issued in the United States.

The court may impose conditions on the exercise of custody or visitation that:

- limit visitation or require that visitation with the child by the person in question be supervised until the court finds that supervision is no longer necessary and order the person in question to pay the costs of supervision;

- require the person in question 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’s fees and costs if there is an abduction; and

- require the person in question to obtain education on the potentially harmful effects to the child from abduction.

Finally, to prevent imminent abduction of a child, a court may issue a warrant to take physical custody of the child and may 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.

I don’t have time to wait for a hearing. I’m afraid my ex is taking my child tonight!

If a petition 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. “Ex parte” means the court can issue the warrant without first hearing from the person in question. If the court issues an ex parte warrant, the court must hold a hearing on the soonest possible court day. The warrant must recite the facts upon which the determination of a credible risk of imminent wrongful removal is based and must direct law enforcement to take physical custody of the child immediately. The warrant must also provide for the safe interim placement of the child pending further order of the court.

How long will an abduction prevention order remain in effect?

The order remains in effect until the earliest of:

- The time stated in the order;

- The emancipation of the child;

- The day the child turns 18; or

- The time the order is modified, revoked, vacated or superseded.