Using the UCCJEA to Obtain Physical Possession of Children for Out-of-State Parents (February 2012)

Material for National Business Institute “Advanced  Family Law” CLE

When a person takes a child to South Carolina and refuses to return the child to a custodial parent in violation of a valid foreign custody order, one can use the registration and enforcement provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to obtain the child’s return.  There are separate provisions for registering and enforcing the foreign custody order, though one can do these actions concurrently.

S.C. Code § 63-15-358 sets forth the process for registration of out-of-state custody orders:

(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 63-15-346, 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:

(1) cause the determination to be filed as a foreign judgment, together with one copy of any accompanying documents and information, regardless of their form;  and

(2) serve notice upon the persons named pursuant to subsection (A)(3) and provide them with an opportunity to contest the registration in accordance with this section.

(C) The notice required by subsection (B)(2) must state that:

(1) a registered determination is enforceable as of the date of the registration in the same manner as a determination issued by a court of this State;

(2) a hearing to contest the validity of the registered determination must be requested within twenty days after service of notice;  and

(3) failure to contest the registration will result in confirmation of the child custody determination and preclude further contest of that determination with respect to any matter that could have been asserted.

(D) A person seeking to contest the validity of a registered order must request a hearing within twenty days after service of the notice.  At that hearing, the court shall confirm the registered order unless the person contesting registration establishes that:

(1) the issuing court did not have jurisdiction under Subarticle 2;

(2) the child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under Subarticle 2;  or

(3) the person contesting registration was entitled to notice, but notice was not given in accordance with the standards of Section 63-15-314, in the proceedings before the court that issued the order for which registration is sought.

(E) If a timely request for a hearing to contest the validity of the registration is not made, the registration is confirmed as a matter of law and the person requesting registration and all persons served must be notified of the confirmation.

(F) Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.

Basically, under this code section, the petitioner provides the Court with the information required in subsection A and the Court serves the notice of the intent to register the order on the opposing party as required in subsection B.  The opposing party only has twenty days after service of the foreign order and notice of intent to register to challenge the registration.  The registration can only be challenged if the foreign court lacked jurisdiction to issue the order, the order has subsequently been vacated, stayed or modified by a court with jurisdiction to do so, or the other party was not provided proper notice of the proceeding that led to the custody order.  If the registration isn’t challenged within 20 days of service, the order is automatically registered for enforcement.  If the registration is challenged, the court will hold a hearing on the matter.

S.C. Code § 63-15-364 sets forth the procedure for enforcing a foreign custody order through an “enforcement petition”:

(A) A petition under this subarticle must be verified.  Certified copies of all orders sought to be enforced and of any order confirming registration must 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 article 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 officials and, if so, the relief sought;  and

(6) if the child custody determination has been registered and confirmed under Section 63-15-358, 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 must be held on the next judicial day after service of the order unless that date is impossible.  In that event, the court shall hold the hearing 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 63-15-372, 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 63-15-358 and that:

     (a) the issuing court did not have jurisdiction under Subarticle 2;

     (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 Subarticle 2;

     (c) the respondent was entitled to notice, but notice was not given in accordance with the standards of Section 63-15-314, 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 63-15-356, but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under Subarticle 2.

Under this enforcement section, the petitioner is entitled to a hearing on the petition the day after the petition is served.  Under subsection D, there are very limited challenges to enforcing the order (basically the same challenges that are available to a request to register the foreign custody order) and, if the order has already been registered for enforcement, the allowable challenges are limited even further.

S.C. Code § 63-15-368 sets forth the procedures for a hearing on the enforcement petition:

A) Unless the court issues a temporary emergency order pursuant to Section 63-15-336, 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 child custody determination has not been registered and confirmed under Section 63-15-358 and that:

     (a) the issuing court did not have jurisdiction under Subarticle 2;

     (b) 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 Subarticle 2;  or

     (c) the respondent was entitled to notice, but notice was not given in accordance with the standards of Section 63-15-314, 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 63-15-358 but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under Subarticle 2.

(B) The court shall award the fees, costs, and expenses authorized under Section 63-15-372 and may grant additional relief, including a request for the assistance of law enforcement officials, 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 article.

Under this code section unless the court decides to take emergency jurisdiction, there is a very limited ability for the respondent to successfully challenge enforcement of the foreign custody order (again, basically the same challenges that are available to a request to register the foreign custody order).

In cases in which there is a concern that the respondent might flee with the child during the limited period between service of the enforcement petition and the hearing on the enforcement petition, there is even a mechanism, under S.C. Code § 63-15-370, to seek and obtain an ex-parte warrant to take physical custody of the 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 immediately 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 must be heard on the next judicial day after the warrant is executed unless that date is impossible.   In that event, the court shall hold the hearing on the first judicial day possible.  The application for the warrant must include the statements required by Section 63-15-364(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.

Finally, a successful enforcement petition almost mandates an award of fees and costs.  Under S.C. Code § 63-15-372(A) (emphasis added):

The court shall 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 childcare during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.

Note that costs under this code section are much broader than typical family court costs and can include such costs as “expenses for witnesses, travel expenses, and childcare during the course of the proceedings.”

Used appropriately, the UCCJEA offers powerful remedies to effectuate the return of a child who is being improperly withheld in South Carolina in violation of a valid foreign custody order.