MR. JOHN MCCABE: Thank you, very much, Senator.

     My name is John McCabe. I'm legal counsel and legislative director for the National Conference of Commissioners on Uniform State Laws, and my objective in being before you this afternoon is to talk to you about a new uniform act that the commissioners just completed, and I'm sure you're aware. Senator Wiggins is a Uniform Law Commissioner, so I'm speaking to at least one committee member who has some experience with the process of this one.

     This Act, we just did in our July annual meeting. It's called the Uniform Child Custody Jurisdiction and Enforcement Act.

     It does three things.

     First, it takes into account some couple of decades of case law relating to its predecessor act, the Uniform Child Custody Jurisdiction Act. It is an effort to erase some differences between, that have existed historically, between the Uniform Child Custody Jurisdiction Act in federal law, particularly a piece of legislation called The Parental Kidnaping Prevention Act.

     And, the third thing, the newest thing that it does is to provide new child custody and visitation enforcement provisions for - these are interstate enforcement provisions, and having given you that quick summary, let me provide you, if you would like, a little background.

     In 1968, the Uniform Law Commissioners produced or promulgated the Uniform Child Custody Jurisdiction Act. It was, in it's time, in 1968, a revolutionary piece of law pertaining to jurisdiction over child custody, interstate child custody orders. Between 1968 and about 1981, it became the law in every state of the United States. I think Missouri adopted it in about the mid-70's, as a matter of Missouri's particular history.

     In 1981, Congress adopted an act called the Parental Kidnaping Prevention Act. It, in many ways, parallels the Uniform Child Custody Jurisdiction Act, but there are some differences which I will point out in a moment.

     What we were attempting to do with the UCCJA, as it's called, most universally in the country, was to deal with the problems of parental kidnaping that parental kidnaping, where the incentive was to take a child subject to an order provided for custody and visitation, to take that child across state lines, because the way you took jurisdiction before the UCCJA, basically, was on presence of the child, and you took the child to another state, and attempted to relitigate the custody issue, hoping to find a more favorable custody order in favor of the person taking the child into the other state. This practice, which was very common prior to the 60's and into the 70's, called parental kidnaping, and in the incentive for doing so, was there because the good old full faith and credit clause of the constitution of the United States by its interpretations of the time did not allow, or did not call child custody orders, final orders. Child custody orders always modifiable on a changed circumstances, so that you could take a child custody order from one state to another state, alleged changed circumstances, and get a modification of that custody order, or you could ignore the fact that there was an order in one state, and attempt to get a new original order. The result being, that you would get conflicting, potentially conflicting orders, and serious difficult in your state with respect to the enforcement of those conflicting orders.

     The Child Custody Jurisdiction Act used jurisdictional principles established by state law to provide what you would call a one-state, one-order regime on child custody orders. That is, you've got an order in one state where there was appropriate jurisdiction, and the Child Custody Jurisdiction Act established what the jurisdictional standards are. You got that order, and it would be honored in every other court, in every other state, unless the initial state lost jurisdiction at which time a second state with jurisdiction could, in fact, modify the order, but not until jurisdiction was lost in the original state. That act, and it's jurisdictional principles and the utilization of jurisdictional principles had never been done like that before, when we brought it out in 1968. It is now accepted law in the United States today.

     In 1981, Congress adopted legislation called the Parental Kidnapping Prevention Act. The PKPA is, by its intent, legislation to implement the full faith and credit clause of the Constitution of the United States. If you look at the constitution, you will see that the states have a responsibility of full faith and credit, but it also is a power of congress to provide standards and implementation, and that's exactly what the PKPA was all about. For the most part, it underpins the UCCJA, the old Child Custody Jurisdiction Act, with the full faith and credit clause. That is, if you followed the line, the rules of the Uniform Child Custody Jurisdiction Act, for the most part, under the PKPA, you had parallel law. Unfortunately, in 1981, there were a couple of fairly key differences, so that for a period since 1981 to this time, there have been a kind of anomaly in the law that exists between the Parental Kidnapping Prevention Act and the Uniform Child Custody Jurisdiction Act. This is an anomaly which we are attempting now to erase in the new UCCJEA. There are two principal things that are different.

     The Uniform Child Custody Act has four bases of jurisdiction, four fundamental bases of jurisdiction.

     The one that has been most widely noted is what is called Home State Standard. It is a state that is the home state of a child has jurisdiction to make a determination with respect to custody and with visitation, however it's determined in that particular state. However, there are three others. You have a significant connection and you have temporary jurisdiction and you have jurisdiction if  nobody else has jurisdiction. The Uniform Child Custody Jurisdiction treats all of those as kind of coequals. The Parental Kidnapping Prevention Act provides that the home state, a state with home state jurisdiction, has priority over all other states within the other jurisdictional ground. So, under the PKPA, it is quite possible for full faith and credit to escape enforcement when you have a state that is not the home state that has taken jurisdiction over a child custody matter and there's a competing order with the state that is, in fact, is the home state of the child. The UCCJA simply would have treated the state, the last state with appropriate jurisdiction as the final order. Now, under the new act, home state has priority, so under the UCCJEA we have a parallel with the Parental Kidnapping Prevention Act.

     The other thing that the Parental Kidnapping Prevention Act did, that the Child Custody Jurisdiction Act does not, or the original Child Custody Jurisdiction Act does not do, is it introduces a concept called Continuing Exclusive Jurisdiction. If a state takes jurisdiction under the PKPA, under the rules of the PKPA, jurisdiction sticks to that state so long as any contestant remains in that state. Under the Child Custody Jurisdiction Act, the original one, that is not true. It is possible for jurisdiction to move from one state to another state, even though a contestant remains in the initial state that took jurisdiction over the original order. Under the new UCCJEA, Continuing Exclusive Jurisdiction is the rule. So that, again, we have a parallel between the Parental Kidnapping Prevention Act and the new Uniform Child Custody Jurisdiction and Enforcement Act. The effect of all of this, is to make sure that with regard to orders under the UCCJEA, that we have a full range of full faith and credit behind those orders which makes them far more solid and far more enforceable and easier to deal with in the courts than it is the case with the current anomaly between the law.

     The UCCJEA also does some streamlining of the law to take care of issues that we saw in case law that had, in fact, frankly, distorted a bit of the underlying laws. I have some clearer rules than we had before that respond to some of that case law.

     The major new thing in the UCCJEA is interstate enforcement of orders. Now, we are used to interstate enforcement of child support orders in the United States. For years we've had the Uniform Reciprocal Enforcement Enforcement Act supplanted in Missouri, as in almost all of the states in the last three years by the Uniform Interstate Family Support Act. So, we have dealt with interstate enforcement of child support orders for a very long period of time. It goes back to the 1950's. 1951 is the date of the original Uniform Reciprocal Enforcement Support Act.

     But, in line with concerns with child support enforcement, it has become apparent and I think if you harken back to the prior testimony in which some of the studies have indicated, that if you do not have enforcement of custody and visitation orders, there's less incentive to pay your child support. It becomes apparent that we need to fill the gap with regard to child custody and visitation. In a similar sense to what we've always done for child support orders, and that is what the UCCJEA does, the new Uniform Child Custody Jurisdiction and Enforcement Act.

     There are three levels of enforcement here. One of them is the tried and true register the out of state order. It becomes as if a domestic order and is enforced as a domestic order is enforced. That's how we did it under the child support orders, under URESA, under revised URESA, and it's how we do it under the Uniform Interstate Family Support Act. It's one of the mechanisms under the  Uniform Interstate Family Support Act, and also a common mechanism, based on the Uniform Enforcement of Foreign Judgements Act, for doing any judgement across state lines in the United States today.

     You register the out of state order. Once it's registered, it's treated as if it's a domestic order and you enforce the judgement as if it were a domestic judgement, using all the mechanisms, including the powers, the courts contempt powers.

     There is an expedited enforcement mechanism in this act. It allows a parent who is, who wants or needs to have enforcement of an order to petition for this expedited remedy. When the petition is filed, the court then hails the other contestant, and essentially the body of the child, into the jurisdiction of the court, and in the possession of the court, if necessary, for an immediate hearing, and, in fact, it says the next judicial day, if possible, and, at that point, and time, the court has the ability to sort out what is needed to adjudicate the enforcement or the order.

     The model for this is habeas corpus, and it is a modified habeas corpus remedy, and it's meant to provide a very quick and effective and expedited, and the term is expedited, a remedy for those who need that kind of remedy with respect to enforcement of child support.

     So, you've got ordinary registration for ordinary circumstances, and you have the expedited remedy for what probably will be extraordinary circumstances.

     The third thing you have here, in terms of enforcement, is the ability to call into action, prosecutors and law enforcement, because it provides the power for prosecuting attorneys to enforce child custody orders, and visitation orders, and it allows law enforcement to be called into the action, as well, and it also provides for a kind of warrant provision, whereby, under the authority of the court, a law enforcement officer can actually go and obtain the child with an expedited warrant procedure, and we have been used to providing assistance for child support for a very long period of time. Under the original URESA's, we essentially put the power in the hands of local prosecutors to enforce child support orders.

     Under the Uniform Interstate Family Support Act and under the new provisions of child support, we are now agencies that are different in some states, single state agency actions for child support enforcement, and we still have a strong state component in child support enforcement, and what we are essentially doing is moving on to visitation in the new Uniform Child Custody Jurisdiction and Enforcement Act.

     This is an important piece of legislation. It needs to be adopted in all the states of the United States as quickly as possible. We have uniformity of law virtually now. We do have the anomaly with the Parental Kidnapping Prevention Act. We need to take care of that, and I think the enforcement provisions are a long needed set of remedies that will enhance, not only child custody enforcement, order enforcement, but it will also have a beneficial impact of the child support area. This piece of legislation that needs to be put in place to replace the old Child Custody Jurisdiction Act as quickly as we can.

     I'd be happy to answer any questions.

     CASKEY: Any questions? Thank you, very much. We appreciate you appearing before us.

     MCCABE: Happy to do it, Senator.