Tag Archives: UCCJEA

Mississippi Uniform Child Abduction Prevention Act (UCAPA); How to prevent Parental Abduction in Custody cases.

In 2010, Mississippi enacted the Uniform Child Abduction Prevention Act (UCAPA). This statute is designed to give the Courts the authority to prevent child abduction in parental custody/visitation disputes. This statute, in conjunction with the UCCJEA regarding interstate jurisdictional determinations, provides remedies to  prevent abduction by providing for injunctive relief upon a demonstration of a credible “risk of abduction.” 

The statutes provides the following;

§ 93-29-13. Factors to determine risk of abduction.

(a)  In determining whether there is a credible risk of abduction of a child, the court shall consider any evidence that the petitioner or respondent:

(1) Has previously abducted or attempted to abduct the child;

(2) Has threatened to abduct the child;

(3) Has 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 the respondent, a family member or the child; or

(F) Seeking to obtain the child’s birth certificate or school or medial records;

(4) Has engaged in domestic violence, stalking or child abuse or neglect;

(5) Has refused to follow a child-custody determination;

(6) Lacks strong familial, financial, emotional or cultural ties to the state or the United States;

(7) Has strong familial, financial emotional or cultural ties to another state or country;

(8) Is 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 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 respondent, without due cause, to prevent the petitioner from contacting the child;

(ii) Restrict the petitioner from freely traveling to or exiting from the country because of the petitioner’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;

(9) Is undergoing a change in immigration or citizenship status that would adversely affect the respondent’s ability to remain in the United States legally;

(10) Has had an application for United States citizenship denied;

(11) 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’s license or other government-issued identification card or has made a misrepresentation to the United States government;

(12) Has used multiple names to attempt to mislead or defraud; or

(13) Has engaged in any other conduct the court considers relevant to the risk of abduction.

(b)  In the hearing on a petition under this chapter, the court shall consider any evidence that the respondent believed in good faith that the respondent’s conduct was necessary to avoid imminent harm to the child or respondent and any other evidence that may be relevant to whether the respondent may be permitted to remove or retain the child.

Miss. Code Ann. §93-29-1 et. seq.

UCAPA is a another arrow in the quiver of child custody remedies when dealing with a dangerous opposing party. It is not often invoked, but is a necessary remedy in the above specific situations.

Matthew Thompson is a Child Custody lawyer in Mississippi and advises all parents to take serious Child Custody matters.

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Jurisdiction; Where to Sue.

Jurisdiction is one of those legal terms we hear a lot, but aren’t always sure what it means.  In the legal world, for a Court to be able to act upon a  filed complaint and grant relief to a party, the Court must have jurisdiction.

Jurisdiction provides the Court authority to makes decisions over a party and the topic of their lawsuit.

Mississippi law provides rules for determining if a Court has jurisdiction and where that may be.  MCA § 93-5-5, contains the residency requirements for a divorce  action.  Additionally, all actions for divorce will be filed in the Chancery Court for the appropriate county.

The jurisdiction of the chancery court in suits for divorce shall be confined to the following cases:

(a) Where one (1) of the parties has been an actual bonafide resident within this state for six (6) months next preceding the commencement of the suit. If a member of the armed services of the United States is stationed in the state and residing within the state with his spouse, such person and his spouse shall be considered actual bonafide residents of the state for the purposes of this section, provided they were residing within the state at the time of the separation of the parties.

(b) In any case where the proof shows that a residence was acquired in this state with a purpose of securing a divorce, the court shall not take jurisdiction thereof, but dismiss the bill at the cost of complainant.

In plain terms, this means you file your divorce action in your home county, or the County that you have resided in for at least 6 months, immediately filing the action.  If you were married in another stated and meet the Mississippi residency requirements you file in Mississippi.  If were married on the Coast, but live in Jackson and have for over 6 months you file in Jackson.  Sometimes, if you wish to file in your current area, but have not met the residency requirements you may have to wait.  Sometimes there are disputes as to residency and the parties can litigate where the case should be litigated.  Some states have different residency requirements than Mississippi so don’t bank on the 6 months if you are in another state.

There are also a number of exceptions or tweaks to the jurisdictional rules.  Another Court, or State, could have “emergency jurisdiction” in child custody cases pursuant to the Uniform Child Custody Jurisdiction Enforcement Act. (UCCJEA).  Also, if your divorce was originally in another state or another county, that original Court would have original jurisdiction and there are additional rules to “transfer” jurisdiction and in some instance you cannot move it.  Military family law cases also have exceptions to the traditional jurisdiction rules.

Jurisdiction is a critical aspect to consider when filing.  It is imperative that your case be filed in the right place geographically and the right Court.  You also may have options between differing Courts based on what is at issue in your case.  Talk to your lawyer about where your case should be filed.

Matthew is a family law attorney and native Mississippian.  Follow his blog, here, at http://www.BowTieLawyer.wp.com.

You may also contact Matthew with your family law or jurisdictional question or concern at (601) 850-8000 or Matthew@wmtlawfirm.com.