Wednesday, April 08, 2015

Child Visitation to Israel


Jeremy D. Morley
www.international-divorce.com

A recent case in Iowa illustrates some of the issues that arise when one parent wants to take a child living in the United States to visit Israel.

In Marriage of Stern, 2015 WL 568584 (Table) (Iowa App.,2015), a father who resided in Israel successfully challenged a geographical restriction that limited his visitation with his son to visitation within the United States where the child lived with his mother.
The Iowa Court ruled that, “Our case law also does not recognize any limitation on visitation rights solely because one of the parents resides outside the borders of Iowa or the United States. ‘The world does not end at the borders of Iowa.’… ‘Our hope for justice for our citizens in foreign courts can best be forwarded by our efforts to offer fair and equitable treatment to foreign nationals in our jurisdiction.’”
Visitation in Israel was especially appropriate because the child was born in Israel to Israeli citizens, lived there during the first two years of his life, had many extended family members there, including a half-brother and half-sister, and had a right to build a meaningful relationship with his father and to fully experience his dual heritage.
While the mother asserted that she feared the child might be retained in Israel, “generally, courts have approved out-of-country visitation when the country is a signatory to the Hague Convention and there is insufficient proof of an intention to wrongfully retain the child.”
While the court authorized such visitation, it should be noted that there are particular concerns about visitation to Israel. For example, there is no durational residency requirement for an Israeli court to exercise custody jurisdiction and there is no statutory concept of a "home state" that would require an Israeli court to enforce a U.S. court order or to defer to a U.S. court as the appropriate forum.
In addition, it can be relatively easy for a parent to obtain a “stop” or “stay of exit” order that will prevent the other parent from taking the child out of Israel at least for a period of time. Such orders can be obtained ex-parte and upon issuance are immediately sent immediately to the border police at all airports and crossing points.  

Wednesday, April 01, 2015

Indian American Parents of ‘Abducted’ Kids Seek U.S. Help

Lalit K. Jha, Press Trust of India | Posted: Monday, March 30, 2015 3:00 pm
Washington, D.C. — Around 60 Indian American parents have asked the U.S. government and Congress to consider imposing sanctions on India, alleging that they have "not been able to get justice" from the Indian system in reuniting with their kids who have been "abducted" by their spouses there.
In all the cases, the "abduction" is alleged to be by their spouses, who fled to India after a marital dispute and got court orders against them.
All these "abducted" kids are American citizens and in the past few months American lawmakers have joined hands in urging the Obama administration to consider imposing sanctions on countries like India, where the government is not helping them getting back the abducted U.S. kids.
Nearly a dozen of these Indian American parents from various parts of the U.S. late last month held a series of meetings with officials from the State Department, testified before a Congressional committee, and met a large number of lawmakers urging to help them get their kids back to the U.S.
They held a candle light vigil at the White House and also went to the Indian Embassy to submit a memorandum to the Indian government.
These Indian American parents are part of the larger group — Bring Our Kids Home – which comprises parents facing the same traumatic problem of "abducted children" as in other countries like Pakistan, Russia, Japan and Greece.
International parental child abduction is a form of child abuse and a violation of U.S. and international law.
Several nations have signed the Hague Convention on Civil Aspects of International Parental Child Abductions ("Hague Convention"), but India is not a signatory to it.
As per State Department reports, from 2012-13, India ranked as the #1 non-Hague signatory country, said Ravi Parmar, one of the Indian American parents.
A law was passed by the U.S. Congress last year after years of inaction on the part of successive U.S. administrations to enforce existing U.S. laws and Hague Convention obligations.
"This new law could result in sanctions on those countries that don't cooperate in returning U.S. children, victims of IPCA," said Vikram Jagtiani, another parent.
Most of these Indian American parents have written multiple letters to both Prime Minister Narendra Modi and External Affairs Minister Sushma Swaraj, but have received no response so far.
"Why I am not getting my children back. They need to be with me," Bindu Philips, who testified before a Congressional committee late in February, told PTI.
The National Center for Missing and Exploited Children says 86 percent of all active cases of abductions to India are open two years or more and 51 percent of all active India-related cases are open five years or more. Twenty-one percent of all India-related cases close without the child returning or child turning 18 years.
IANS adds: Recounting her heartrending tale of woe, Philips told the committee, "Help me to make my voice heard in a way that shall be meaningful and allow me to be reunited with my children who need the love and nurturing of their mother.”
"Tragically, my world and that of my innocent children, was violently disrupted by my ex-husband, Sunil Jacob in December of 2008," said Philips, a mother of twin boys, Albert Philip Jacob and Alfred William Jacob, both 14 now.
Accusing Jacob of orchestrating the kidnapping of the children during a vacation to India, she told the panel that she was not only "very cruelly separated from my children" but also not allowed to see or communicate with them after her husband transferred them to another school with strict orders not to let the mother or any of the maternal relatives see them.
In December 2009, the Superior Court Family Part in New Jersey "not only granted me sole custody of the children" but also "demanded their immediate return to the U.S," said Philips.
In turn, her ex-husband filed for custody of the children in Indian courts after the U.S. child custody was filed, Philips alleged. The case is currently pending in the Supreme Court of India.

Tuesday, March 31, 2015

Hong Kong Divorce Jurisdiction


Jeremy D. Morley  

The courts of Hong Kong deal with large numbers of international divorce cases. Hong Kong has jurisdiction if certain specified conditions are fulfilled but it is important to understand that the courts may decline jurisdiction on the grounds of inconvenience in some cases.  

Hong Kong courts have jurisdiction of divorce cases if –  
          a) Either of the parties to the marriage was domiciled in Hong Kong at the date of the petition or application; or  
          b) Either of the parties to the marriage was habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of the petition or application; or  
          c) Either of the parties to the marriage had a substantial connection with Hong Kong at the date of the petition or application.  
A.    Domicile
The meaning of the term “domicile” is significantly affected by a Domicile Ordinance “to consolidate and reform the law for determining the domicile of individuals” enacted as of 1 March 2009, which amends the common law of domicile in certain respects. The Ordinance provides that:
          -every person has a domicile but not more than one;
          -on becoming an adult, an individual retains the domicile that he had immediately beforehand;
          -an adult acquires a new domicile in a country or territory if he is present there and intends to make    a home there for an indefinite period;
          -a child is domiciled in the country or territory with which he is for the time being more closely connected;
          -where the child's parents are domiciled in the same country or territory and the child has his home with either or both of them; it shall be presumed, unless the contrary is proved; that the child is most closely connected with that country or territory; and
          -where the child's parents are not domiciled in the same country or territory and the child has his home with one of them, but not with the other, it shall be presumed, unless the contrary is proved, that the child is more closely connected with the country or territory in which the parent with whom he has his home is domiciled.   
In a case in which I provided assistance to the husband, the Hong Kong court very recently ruled that:

“it does not seem to me that the wife’s domicile changed again when she came to Hong Kong on a temporary basis in June 2013 with the two children of the family. There was no intent originally to reside in Hong Kong on a permanent or indefinite period. This may have changed from the wife’s perspective in December 2013, but this is not something that the husband ever agreed to. Further from a factual perspective-the wife’s permanent home in April 2014 still remained the family home in New Jersey. She was only living in a rental property in Hong Kong. Her whole married and family life up until that point had been conducted in the United States when she issued her divorce petition last year.”

B.     Habitual Residence
In ZC v. CN [2014] HKCA 389, the Hong Kong Court of Appeal ruled that
Habitual or ordinary residence refers to ‘a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration. It is necessary that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled’ : R v Barnet London Borough Council, Ex p Nilish Shah [1983] 2 AC 309, judgment of Lord Scarman at page 340-344. Lord Scarman applied the natural and ordinary meaning approach in construing the words ‘ordinarily resident’ of the United Kingdom Education Act 1962.
The same meaning of habitual or ordinary residence is to be given to the family law legislation : Ikimi v Ikimi [2002] Fam 72 Thorpe LJ at page 82, reaffirmed in Mark v Mark [2006] 1 AC 98.
Unlike domicile, one may have habitual or ordinary (the terms are the same) residence in two places at the same time.
In the recent case of Vallejos v Commissioner of Registration (2013) 16 HKCFAR 45, the Court of Final Appeal construed ‘ordinarily resident’ in Article 24(2)(4) of the Basic Law. The Court of Final Appeal emphasised the purposive and contextual approach in statutory interpretation (paragraph 50) and qualified the natural and ordinary meaning approach of Lord Scarman by regarding it only as a starting point but not decisive (paragraph 80). Ma CJ held that:
̒It is always necessary to examine the factual position of the person claiming to be ordinarily resident to see whether there are any special features affecting the nature and quality of his or her residence. If such features exist, one asks whether they result in that person’s residence being qualitatively so far-removed from what would traditionally be recognised as “ordinary residence” as to justify concluding that he or she is not “ordinarily resident”. This is necessarily a question of fact and degree and the outer boundaries of “ordinary residence” are incapable of precise definition. But the exercise is necessary since the meaning of “ordinary residence” in art.24(2)(4) can only be considered in the factual context presented by the person claiming to come within the meaning of that concept.’
However, in ZC v. CN the Court of Appeal did not address the recent modification by the English courts in In re L (A Child) (Habitual Residence) [2013] UKSC 75 to the interpretation of the term “habitual residence” to conform to the test of habitual residence that the Court of Justice of the European Union had previously adopted in Mercredi v Chaffe (Case C-497/10 PPU) [2012] Fam 22.

C.    Substantial Connection
The meaning of the term “substantial connection” has been discussed in several international divorce cases. Cases have held that a party’s connection with Hong Kong must be “of sufficient significance or worth, to justify the courts of Hong Kong assuming jurisdiction in respect of matters going to, and consequential upon, the dissolution of that party’s marriage.”
The leading case is ZC v. CN in which the Hong Kong Court of Appeal made the following points:
·         Whether a person has a substantial connection with Hong Kong is clearly a question of fact. No definition for this term will be succinct or comprehensive enough. What one may do is to look at the surrounding factors to see whether that person is substantially connected with Hong Kong at the time of the petition.
·         As a starting point, one begins to see if that person has connection here and then decide whether that connection is a substantial one. In terms of connection, there must be physical presence in Hong Kong, this must be the ground rock of invoking the divorce jurisdiction. But because of the requirement of ‘substantial’, the presence cannot be of a transitory nature otherwise this will encourage ‘fly in’ and ‘fly out’ divorces.
·         Hence in order to see whether the proceeding has a real and substantial connection to Hong Kong one must, first of all, ascertain whether at the time of its commencement the parties have substantially conducted their matrimonial life in Hong Kong.
·         Hong Kong being an international commercial city, the identification of this issue is most acute for expatriate families who live in Hong Kong.
·         The relevant considerations are, for example, whether the parties’ matrimonial home is here, what is their past pattern of life; do they regard Hong Kong as their home for the time being even if their life style may indicate that they may not take root in one place for too long a time. Related to the issue are matters such as the place of work of the spouses: do they choose to work here; even if one of them has to ‘commute’ overseas to work, is Hong Kong still treated as their home base. Likewise for the children of the family: are they studying here or spending their vacations here even if they are studying abroad.
·         The fact that a party has resident status which allows him or her to live here legally is only a factor to be taken into account. He or she may not be living here on a long term basis and only comes here occasionally. No doubt one has to look at other factors such as the party’s past pattern of life, the frequency of his visit to Hong Kong, the length and purpose of the stay, whether the party is engaged in business or work here, whether the rest of the family is here and whether a home has been established here and whether the children are at school here.
·         It is also important to bear in mind that since the legislation only requires the party to establish a substantial connection in Hong Kong, he or she at the same time may have a substantial connection elsewhere. 
·         If a party is shown to have substantial connection elsewhere by reason of his home or work, this may be used to contrast with the connecting factors he has in Hong Kong to see whether the Hong Kong connection is a substantial one.
·         At the same time it will be unduly restrictive if one confines the connecting factors solely to that of a family context, namely, accommodation in a matrimonial home and presence of spouses and children. While in the majority of cases, family context is the focus of the inquiry and a material factor, there may well be situations where a party is in Hong Kong without the presence of his family, but nonetheless is able to show that he has a substantial connection here. It really depends on the circumstances of the case. Such cases, however, must be regarded as exceptional.
In a case in which I assisted the husband, the Hong Kong court very recently ruled that the wife, who had lived in Hong Kong before her marriage, had then lived in the United States with her husband during 16 years of marriage, and who had then lived in Hong King with the parties children for ten months before starting a divorce case in Hong King, did not have a substantial connection with Hong Kong. The Court stated as follows:
“In this case, although the wife is presently in Hong Kong, the parties have never lived in Hong Kong as man and wife or family. There is no matrimonial home here and no question that their past pattern of life was in New Jersey. Further this is not a typical expatriate scenario where the parties were required to relocate to different countries on a regular basis. The wife and children are here because the wife has chosen to remain in Hong Kong following the breakdown of her marriage to the respondent. Although the wife and children would visit Hong Kong frequently, there was never any suggestion that this was for anything other than a holiday, so that the wife could catch up with family and friends, etc. It is true that the wife has recently set up home here and that the children are attending school. But this is in the context of the fact that the original intention was that this would be a temporary move of 1-2 years. It is clear that the wife does have a connection with Hong Kong but given the recent guidance provided by the Court of Appeals above, it does not appear that the connection is sufficient to afford her the jurisdiction to issue divorce proceedings here. In such circumstances it does not seem to me that the wife had a substantial connection when she issued her divorce proceedings in Hong Kong.”

Monday, March 30, 2015

Notes on the Netherlands and the Hague Abduction Convention

Jeremy Morley

The Dutch Office of the Liaison Judge International Child Protection has reported as follows:

In the Netherlands the International Child Abduction Implementation Act, amended in 2012, requires that all international child abduction cases should be filed with the (District or Appeal) Court of The Hague. Previously return proceedings might take months or even years and a Royal Commission on Private International Law recommended improvements.
Briefly summarized, the return procedure – for parents whose children have been abducted to the Netherlands - is as follows.
An application for return can only be submitted to the District Court through an attorney. This may be done either directly or by first submitting a request for intervention to the Central Authority. The advantage of the latter option is that the Central Authority offers a vast number of facilities, such as the translation of documents and subsidized mediation. If intervention by the Central Authority is requested, it will first have an intake interview with the parents. The intake stage takes about six weeks. Both parents will be informed of the outcome. After this stage the case will be transferred to the attorney selected by the non-resident parent. Both this parent and the abducting parent will be informed of the cost of legal proceedings.
Having regard to the interest of the child which is at stake in child abduction procedures, the attorneys of the non-resident parent and the abducting parent may, in the best interest of the child, point out to their respective clients the advantages of reaching a settlement through mediation, prior to drawing up any application. Mediation in international child abduction cases is promoted by the Ministry of Security and Justice, which will also fund a large part of the cost. Mediation can be obtained through the Mediation Bureau (part of the International Child Abduction Centre (IKO)).
If no mediation takes place or if mediation does not result in a full settlement, the attorney will lodge a return application with the District Court of The Hague. As a rule, a pre-trial review takes place before a single judge section of the court within two weeks of the filing of the application. The judge at this pre-trial review explores the possibility of mediation if this has not already taken place at the preliminary stage. Mediation has to take place within two weeks. The mediation is conducted by two professional mediators, preferably a lawyer and a psychologist.
If the parents fail to reach a settlement within two weeks, a second hearing will take place before the full court, followed by a decision on the return application within two weeks. An appeal to the Court of Appeal can be lodged within two weeks. A hearing will take place within two weeks of the lodging of that appeal, and the Appeal Court decision will follow two weeks later. An appeal to the Dutch Supreme Court is not possible, except in case of appeal in cassation on a point of law.
The procedure described above is also referred to as ‘ accelerated procedure’ i.e. six weeks intake interview, six weeks at the District Court and six weeks at the Court of Appeal. Once the court has granted a return order, the child or children need to be returned to the country of origin, in line with the order. Generally speaking, this will take place either on a voluntary basis or by enforcement. Reference is made to the Protocol on cooperation with regard to the enforcement of return orders in international child abduction cases.

Friday, March 27, 2015

Indonesia & International Child Abduction: The Indonesian Judicial Mafia

By Jeremy D. Morley
The level of corruption within a state’s legal system may be an important factor in evaluating the risk of a proposed visit to that country by a child and a parent in litigation to permit or prevent such a visit.

Obviously the risk is far greater if the level of corruption is high, especially if the parent who wants to take a child to the foreign country is a national of that country or knows his way around” the country.

In this regard, a recent statement by the Chief Justice of Indonesia’s Constitutional Court, Mahfud MD, is remarkable. It adds authority, flavor and great substance to the statement in the current U.S. State Department report on Indonesia that “Widespread corruption throughout the legal system continued” and it serves to cast great doubt on the ability of the Indonesia system to take any meaningful steps to recover children from Indonesia who have been abducted to that country, especially if the abducting parent knows his or her way around the country.

Specifically Judge Mahfud stated, in an interview with Strategic Review, The Indonesian Journal of Leadership, Policy and World Affairs, that:

“The corruption is indeed endemic, deeply entrenched in the entire judicial process in Indonesia. The problem is not about the substance but more about the law enforcers and the legal culture. … As I mentioned earlier, in terms of substance, we have a comprehensive law. Anything we need, I can show you the relevant regulation. But the root of the problem is the mentality of our law enforcers. They inherited the corrupt mentality of the New Order regime, and are supported by the legal culture where things can be negotiated outside the courts. Then there is the judicial mafia, which has never been eradicated. We always talk about the substance but never about the structure and the culture. So now, you see judges who talk loudly about how they would eradicate corruption but then are caught red-handed committing it. Attorneys are caught in collusion and many are brought to court. Police officers are also imprisoned because of corruption. This is why our legal development has not worked until now.”

Thursday, March 26, 2015

Michigan Has Adopted Uniform Child Abduction Prevention Act

The Uniform Child Abduction Prevention Act is now in full force and effect in Michigan. The Michigan law reads as follows:

M.C.L.A. § 722.1521

Sec. 1. This act shall be known and may be cited as the “uniform child abduction prevention act”
M.C.L.A. § 722.1522

Sec. 2. As used in this act:
(a) “Abduction” means the wrongful removal or wrongful retention of a child.
(b) “Child” means an unemancipated individual who is less than 18 years of age.
(c) “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. Child custody determination includes a permanent, temporary, initial, or modification order.
(d) “Child-custody proceeding” means a proceeding in which legal custody, physical custody, or visitation with respect to a child is at issue. Child-custody proceeding includes a proceeding for divorce, dissolution of marriage, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, or protection from domestic violence.
(e) “Court” means an entity authorized under the law of a state to establish, enforce, or modify a child-custody determination.
(f) “Domestic violence” means that term as defined in section 1 of 1978 PA 389, MCL 400.1501.
(g) “Enhanced driver license” and “enhanced official state personal identification card” mean those terms as defined in section 2 of the enhanced driver license and enhanced official state personal identification card act, 2008 PA 23, MCL 28.302.
(h) “Home state” means that term as defined in section 102 of the uniform child-custody jurisdiction and enforcement act, 2001 PA 195, MCL 722.1102.
(i) “Petition” includes a motion or its equivalent.
(j) “Protection order” means either of the following:
(i) An order entered under section 2950 or 2950a of the revised judicature act of 1961, 1961 PA 236, MCL 600.2950 and 600.2950a, under section 6b of chapter V or section 3(2)(o) of chapter XI of the code of criminal procedure, 1927 PA 175, MCL 765.6b and 771.3, under section 13a of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712a.13a, or under section 36(16) of the corrections code of 1953, 1953 PA 232, MCL 791.236.
(ii) A foreign protection order as defined in section 2950h of the revised judicature act of 1961, 1961 PA 236, MCL 600.2950h.
(k) “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.
(l) “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. State includes a federally recognized Indian tribe or nation.
(m) “Travel document” means records relating to a travel itinerary, including travel tickets, passes, reservations for transportation, or accommodations. Travel document does not include a passport or visa.
(n) “Visitation” includes parenting time as that term is used in the support and parenting time enforcement act, 1982 PA 295, MCL 552.601 to 552.650.
(o) “Wrongful removal” means the taking of a child that breaches rights of custody or visitation given or recognized under the law of this state. Wrongful removal does not include actions taken to provide for the safety of a party or the child.
(p) “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. Wrongful retention does not include actions taken to provide for the safety of a party or the child.
M.C.L.A. § 722.1523

Sec. 3. Sections 110 to 112 of the uniform child-custody jurisdiction and enforcement act, 2001 PA 195, MCL 722.1110 to 722.1112, apply to cooperation and communications among courts in proceedings under this act.
M.C.L.A. § 722.1524

Sec. 4. (1) 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.
(2) A party to a child-custody determination or another individual or entity having a right under the law of this state or any other state to seek a child-custody determination for the child may file a petition seeking abduction prevention measures to protect the child under this act.
(3) A prosecutor or the attorney general may seek a warrant to take physical custody of a child under section 9 or other appropriate prevention measures.
M.C.L.A. § 722.1525

Sec. 5. (1) A petition under this act may be filed only in a court that has jurisdiction to make a child-custody determination with respect to the child at issue under the uniform child-custody jurisdiction and enforcement act, 2001 PA 195, MCL 722.1101 to 722.1406.
(2) A court of this state has temporary emergency jurisdiction under section 204 of the uniform child-custody jurisdiction and enforcement act, 2001 PA 195, MCL 722.1204, if the court finds a credible risk of abduction.
M.C.L.A. § 722.1526

Sec. 6. A petition under this act shall be verified and include a copy of any existing child-custody determination, if available. The petition shall specify the risk factors for abduction, including the relevant factors described in section 7. Subject to section 209(5) of the uniform child-custody jurisdiction and enforcement act, 2001 PA 195, MCL 722.1209, if reasonably ascertainable, the petition must contain all of the following:
(a) The name, date of birth, and gender of the child.
(b) The customary address and current physical location of the child.
(c) The identity, customary address, and current physical location of the respondent.
(d) 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.
(e) 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.
(f) Information regarding any protection order previously entered involving either party or the child.
(g) Any other information required to be submitted to the court for a child-custody determination under section 209 of the uniform child-custody jurisdiction and enforcement act, 2001 PA 195, MCL 722.1209.

M.C.L.A. § 722.1527

Sec. 7. (1) In determining whether there is a credible risk of abduction of a child, the court shall consider any evidence that the petitioner or respondent has done any of the following or that any of the following apply to the petitioner or respondent:
(a) Previously abducted or attempted to abduct the child.
(b) Threatened to abduct the child.
(c) Except for planning activities related to providing for the safety of a party or the child while avoiding or attempting to avoid domestic violence, recently engaged in activities that may indicate a planned abduction, including any of the following:
(i) Abandoning employment.
(ii) Selling a primary residence.
(iii) Terminating a lease.
(iv) Closing bank or other financial management accounts, liquidating assets, hiding or destroying financial documents, or conducting any unusual financial activities.
(v) Applying for a passport or visa or obtaining travel documents for the respondent, a family member, or the child.
(vi) Applying for or obtaining an enhanced driver license or enhanced official state personal identification card for the respondent, a family member, or the child.
(vii) Seeking to obtain the child's birth certificate or school or medical records.
(d) Engaged in domestic violence, stalking, or child abuse or neglect.
(e) Refused to follow a child-custody determination.
(f) Lacks strong familial, financial, emotional, or cultural ties to this state or the United States.
(g) Has strong familial, financial, emotional, or cultural ties to another state or country.
(h) Is likely to take the child to a country to which any of the following apply:
(i) The country 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.
(ii) The country is a party to the Hague convention on the civil aspects of international child abduction but 1 or more of the following apply:
(A) The Hague convention on the civil aspects of international child abduction is not in force between the United States and the country.
(B) The country is noncompliant according to the most recent compliance report issued by the United States department of state.
(C) The country lacks legal mechanisms for immediately and effectively enforcing a return order under the Hague convention on the civil aspects of international child abduction.
(iii) The country 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.
(iv) The country has laws or practices that would do 1 or more of the following:
(A) Enable the respondent, without due cause, to prevent the petitioner from contacting the child.
(B) Restrict the petitioner from freely traveling to or exiting from the country because of the petitioner's gender, nationality, marital status, or religion.
(C) Restrict the child's ability legally to leave the country after the child reaches the age of majority because of the child's gender, nationality, or religion.
(v) The country is included by the United States department of state on a current list of state sponsors of terrorism.
(vi) The country does not have an official United States diplomatic presence in the country.
(vii) The country is engaged in active military action or war, including a civil war, to which the child may be exposed.
(i) Is undergoing a change in immigration or citizenship status that would adversely affect the respondent's ability to remain in the United States legally.
(j) Has had an application for United States citizenship denied.
(k) 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 license, or other government-issued identification card or has made a misrepresentation to the United States government.
(l) Has used multiple names to attempt to mislead or defraud.
(m) Has engaged in any other conduct the court considers relevant to the risk of abduction.
(2) If the court finds during a hearing on a petition under this act that the respondent's conduct was intended to avoid domestic violence or imminent harm to the child or the respondent, the court shall not issue an abduction prevention order.
M.C.L.A. § 722.1528

Sec. 8. (1) If a petition is filed under this act, the court may enter an order. If entered, the order shall include all of the following:
(a) The basis for the court's exercise of jurisdiction.
(b) The manner in which notice and opportunity to be heard were given to the persons entitled to notice of the proceeding.
(c) A detailed description of each party's custody and visitation rights and residential arrangements for the child.
(d) A provision stating that a violation of the order may subject the party in violation to civil and criminal penalties.
(e) Identification of the child's home state or country of habitual residence at the time of the issuance of the order.
(2) If, at a hearing on a petition under this act 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 shall include the provisions required by subsection (1) and measures and conditions, including those in subsections (3) to (5), that are reasonably calculated to prevent abduction of the child, giving due consideration to the custody and visitation rights of the parties and the safety of the parties and the child. 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.
(3) An abduction prevention order may include 1 or more of the following:
(a) An imposition of travel restrictions that require that a party traveling with the child outside a designated geographical area provide the other party with all of the following:
(i) The travel itinerary of the child.
(ii) A list of physical addresses and telephone numbers at which the child can be reached at specified times.
(iii) Copies of all travel documents.
(b) A prohibition of the respondent directly or indirectly doing any of the following:
(i) Removing the child from this state, the United States, or another geographic area without permission of the court or the petitioner's written consent.
(ii) Removing or retaining the child in violation of a child-custody determination.
(iii) Removing the child from school or a child care or similar facility.
(iv) Approaching the child at any location other than a site designated for supervised visitation.
(c) A requirement that a party register the order in another state as a prerequisite to allowing the child to travel to that state.
(d) With regard to the child's passport, any of the following:
(i) A direction that the petitioner place the child's name in the United States department of state's child passport issuance alert program.
(ii) 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.
(iii) A requirement that the respondent surrender to the court or the petitioner's attorney his or her enhanced driver license or enhanced official state personal identification card issued in the child's name.
(iv) A prohibition on the respondent applying on behalf of the child for a new or replacement passport or visa.
(e) As a prerequisite to exercising custody or visitation, a requirement that the respondent provide 1 or more of the following:
(i) 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.
(ii) To the court, 1 or both of the following:
(A) Proof that the respondent has provided the information in subparagraph (i).
(B) 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.
(iii) 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 1 of the parties objects.
(iv) A written waiver under 5 USC 552a, popularly known as the privacy act, with respect to any document, application, or other information pertaining to the child authorizing its disclosure to the court and the petitioner.
(f) On 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.
(4) In an abduction prevention order, the court may impose conditions on the exercise of custody or visitation that do 1 or more of the following:
(a) 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.
(b) 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 reasonable attorney fees and costs if there is an abduction.
(c) Require the respondent to obtain education on the potentially harmful effects to the child from abduction.
(5) To prevent imminent abduction of a child, a court may do 1 or more of the following:
(a) Issue a warrant to take physical custody of the child under section 9 or other law of this state.
(b) 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 act or other law of this state.
(c) Grant any other relief allowed under the law of this state.
(6) The remedies provided in this act are cumulative and do not affect the availability of other remedies to prevent abduction.
M.C.L.A. § 722.1529

Sec. 9. (1) If a petition under this act alleges 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.
(2) The respondent to a petition under subsection (1) shall be afforded an opportunity to be heard at the earliest possible time after the ex parte warrant is executed, but not later than the next judicial day unless a hearing on that date is impossible. If a hearing on the next judicial day is impossible, the court shall hold the hearing on the first judicial day possible.
(3) An ex parte warrant under subsection (1) to take physical custody of a child shall do all of the following:
(a) Recite the facts on which a determination of a credible risk of imminent wrongful removal of the child is based.
(b) Direct law enforcement officers to take physical custody of the child immediately.
(c) State the date and time for the hearing on the petition.
(d) Provide for the safe interim placement of the child pending further order of the court.
(4) If feasible, before issuing a warrant under this section 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.
(5) A petition and warrant under this section shall be served on the respondent when or immediately after the child is taken into physical custody.
(6) 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.
(7) If the court finds, after a hearing, that a petitioner sought an ex parte warrant under subsection (1) for the purpose of harassment or in bad faith, the court may award the respondent reasonable attorney fees, costs, and expenses.
(8) This act does not affect the availability of relief allowed under other law of this state.
M.C.L.A. § 722.1530

Sec. 10. An abduction prevention order remains in effect until the earliest of the following:
(a) The time stated in the order.
(b) The emancipation of the child.
(c) The child's attaining 18 years of age.
(d) The time the order is modified, revoked, vacated, or superseded by a court with jurisdiction under sections 201 to 203 of the uniform child-custody jurisdiction and enforcement act, 2001 PA 195, MCL 722.1201 to 722.1203, or other applicable law of this state.
M.C.L.A. § 722.1531

Sec. 11. In applying and construing this uniform act, a court shall consider the need to promote uniformity of the law with respect to its subject matter among states that enact it.
M.C.L.A. § 722.1532

Sec. 12. This act modifies, limits, and supersedes the federal electronic signatures in global and national commerce act, 15 USC 7001 to 7031, but does not modify, limit, or supersede 15 USC 7001(c) or authorize electronic delivery of any of the notices described in 15 USC 7003(b).

This act is ordered to take immediate effect

Effective date: January 12, 2015