Colo. Rev. Stat. § 14-13.5-108

Current through 11/5/2024 election

Section 14-13.5-108 - Provisions and measures to prevent abduction

(1) If a petition is filed under this article, the court may enter an order that must include:

(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, residential arrangements for the child, and any child-custody determinations in effect;

(d) A provision stating that a violation of the order may subject the party in violation to civil and criminal penalties; and

(e) Identification of the child's country of habitual residence at the time of the issuance of the order.

(2) If, at a hearing on a petition under this article 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 must include the provisions required by subsection (1) of this section and measures and conditions, including those in subsections (3), (4), and (5) of this section, that are reasonably calculated to prevent abduction of the child, giving due consideration to the custody and visitation rights of the parties and the child-custody determinations in effect at the time of the filing of the petition under this article. 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, domestic abuse, stalking, or child abuse or neglect.

(3) An abduction prevention order may include one 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 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; and

(III) Copies of all travel documents;

(b) A prohibition of the respondent directly or indirectly from:

(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; or

(IV) Approaching the child at any location other than a site designated for supervised visitation or supervised parenting time;

(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:

(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; and

(III) A prohibition upon the respondent from applying on behalf of the child for a new or replacement passport or visa;

(e) As a prerequisite to exercising custody, parental responsibilities, or visitation or parenting time, a requirement that the respondent provide:

(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:

(A) Proof that the respondent has provided the information in subparagraph (I) of this paragraph (e); and

(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 one of the parties objects; and

(IV) A written waiver under the federal "Privacy Act of 1974", 5 U.S.C. Section 552a, with respect to any document, application, or other information pertaining to the child authorizing its disclosure to the court and the petitioner; and

(f) Upon 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, parental responsibilities, or visitation or parenting time that:

(a) Limit visitation or parenting time or require that visitation or parenting time 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 attorneys fees and costs if there is an abduction; and

(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:

(a) Issue a warrant to take physical custody of the child under section 14-13.5-109 or the law of this state other than this article;

(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 article or the law of this state other than this article; or

(c) Grant any other relief allowed under the law of this state other than this article.

(6) The remedies provided in this article are cumulative and do not affect the availability of other remedies to prevent abduction.

C.R.S. § 14-13.5-108

L. 2007: Entire article added, p. 771, § 1, effective May 14.

OFFICIAL COMMENT

This act provides courts with a choice of remedies. Ideally the court will choose the least restrictive measures and conditions to maximize opportunities for continued parental contact while minimizing the opportunities for abduction. The most restrictive measures should be used when there have been prior custody violations and overt threats to take the child; when the child faces substantial potential harm from an abducting parent who may have serious mental or personality disorder, history of abuse or violence or no prior relationship with the child; or when the obstacles to recovering the child are formidable due to countries not cooperating and enforcing orders from the United States, not being signatories to the Hague Convention on the Civil Aspects of International Child Abduction or non-compliant. This section of the Act lists the possible prevention measures categorized as travel restrictions, conditions on the exercise of custody and visitation, and urgent measures when abduction is imminent or in progress.

If a person files a petition under this Act, even if the court decides not to order restrictive measures or impose conditions, the court may clarify and make more specific the existing child-custody determination. To enter an abduction prevention order, the court must have jurisdiction to make a child-custody determination even if it is emergency jurisdiction. The court should set out the basis for the court's exercise of jurisdiction. The more apparent on the face of the document that the court issuing the order had proper jurisdiction, the more likely courts in other states and countries are to recognize it as valid. The court should also include a statement showing that the parties were properly served and given adequate notice. This makes it apparent on the face of the order that due process was met. See Sections 108 and 205 of the Uniform Child Custody Jurisdiction and Enforcement Act [sections 14-13- 108 and 14-13-205, C.R.S.]. States do not require personal jurisdiction to make a child- custody determination.

The court may make an existing child-custody order clearer and more specific. Vague orders are difficult to enforce without additional litigation. The term "reasonable visitation" can lead to conflicts between the parents and make it difficult for law enforcement officers to know if the order is being violated. The court may specify the dates and times for each party's custody and visitation, including holidays, birthdays, and telephone or Internet contact. Because joint custody arrangements create special enforcement problems, the court should ensure that the order specifies the child's residential placement at all times. Whenever possible, the residential arrangements should represent the parents' agreement. However, to prevent abductions, it is important for the court order to be specific as to the residential arrangements for the child. If there is a threat of abduction, awarding sole custody to one parent makes enforcement easier.

The court may also include language in the prevention order to highlight the importance of both parties complying with the court order by including in bold language: "VIOLATION OF THIS ORDER MAY SUBJECT THE PARTY IN VIOLATION TO CIVIL AND CRIMINAL PENALTIES."

Because every abduction case may be a potential international abduction case, the prevention order should identify the place of habitual residence of a child. Although the Hague Convention on the Civil Aspects of International Child Abduction does not define "habitual residence" and the determination is made by the court in the country hearing a petition for return of a child, a statement in the child-custody determination or prevention order may help. A typical statement reads: The State of ____________, United States of America, is the habitual residence of the minor children within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction.

If the court finds a credible risk of abduction, this Act provides numerous measures to prevent an abduction. Courts can require a party traveling outside a specified geographical area to provide the other party with all relevant information about where the child will be and how to contact the child. The court can impose travel restrictions prohibiting the respondent from leaving the United States or a specific geographical area; from removing the child from school, day care or other facilities, and can restrict contact other than as specified in the order. The court may also impose passport restrictions and require the respondent to provide assurances and safeguards as a condition of traveling with the child.

The court may also choose to impose restrictions on custody or visitation. The most common, and one of the most effective, restrictions is supervised visitation. Visitation should remain supervised until the court decides the threat of abduction has passed. In addition, the court may require the posting of a bond sufficient to serve both as a deterrent and as a source of funds for the cost of the return of the child. If domestic violence is present, the court may want to order the abusive person to obtain education, counseling or attend a batterers' intervention and prevention program.

Because of international abduction cases are the most complex and difficult, reasonable restrictions to prevent such abductions are necessary. If a credible risk of international abduction of the child exists, passport controls and travel restrictions may be indispensable. It may be advantageous in some cases to obtain a "mirror" or reciprocal order. Before exercising rights, the respondent would need to get a custody order from the country to which the respondent will travel that recognizes both the United States order and the court's continuing jurisdiction. The foreign court would need to agree to order return of the child if the child was taken in violation of the court order. This potentially expensive and time consuming remedy should only be ordered when likely to be of assistance. Because the foreign court may subsequently modify its order, problems can arise.

The court may do whatever is necessary to prevent an abduction, including using the warrant procedure under this act or under the law of the state. Many law enforcement officers are unclear about their role in responding to parental kidnapping cases. One study showed that 70 percent of law enforcement agencies reported that they did not have written policies and procedures governing child abduction cases. A provision in the custody order directing law enforcement officer to "accompany and assist" a parent to recover an abducted child may be useful but is not included in this Act.

The remedies provided in this Act are intended to supplement and complement existing law.