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Uniform Child Custody Jurisdiction and Enforcement Act

Domestic Relations Law 77
UCCJEA

DRL 77: Enforcement



DRL 77: UCCJEA TITLE III

Title III: Enforcement



Section 77. Definitions.

77-a. Enforcement under Hague Convention.

77-b. Duty to enforce.

77-c. Temporary visitation.

77-d. Registration of child custody determination.

77-e. Enforcement of registered determination.

77-f. Simultaneous proceedings.

77-g. Expedited enforcement of child custody determination.

77-h. Service of petition and order.

77-i. Hearing and order.

77-j. Warrant to take physical custody of child.

77-k. Costs, fees and expenses.

77-l. Recognition and enforcement.

77-m. Appeals.

77-n. Role of prosecutor or public official.

77-o. Role of law enforcement.

77-p. Costs and expenses.



S 77. Definitions. As used in this title:

1. "Petitioner" means a person who seeks enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination.


2. "Respondent" means a person against whom a proceeding has been commenced for enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination.


S 77-a. Enforcement under Hague Convention.

Under this act, a court of this state may enforce an order for the return of the child made under the Hague Convention on the Civil Aspects of International Child Abduction as if it were a child custody determination.


S 77-b. Duty to enforce.

1. A court of this state shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this article or the determination was made under factual circumstances meeting the jurisdictional standards of this article and the determination has not been modified in accordance with this article; provided, however, that recognition and enforcement of the determination would not violate subdivision one-c of section two hundred forty of this chapter or section one thousand eighty-five of the family court act.


2. A court of this state may utilize any remedy available under other law of this state to enforce a child custody determination made by a court of another state. The remedies provided in this title are cumulative and do not affect the availability of other remedies to enforce a child custody determination.


S 77-c. Temporary visitation.

1. A court of this state which does not have jurisdiction to modify a child custody determination, may, if consistent with subdivision one-c of section two hundred forty of this chapter or section one thousand eighty-five of the family court act, issue a temporary order enforcing:


(a) a visitation schedule made by a court of another state; or


(b) the visitation provisions of a child custody determination of another state that does not provide for a specific visitation schedule.


2. If a court of this state makes an order under paragraph (b) of subdivision one of this section, it shall specify in the order a period that it considers adequate to allow the petitioner to obtain an order from a court having jurisdiction under the criteria specified in title two of this article. The order remains in effect until an order is obtained from the other court or the period expires.


S 77-d. Registration of child custody determination.

1. 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;


(a) a letter or other document requesting registration;


(b) 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


(c) except as otherwise provided in section seventy-six-h of this article, 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.


2. On receipt of the documents required by subdivision one of this section, the registering court shall:


(a) 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


(b) serve notice upon the persons named pursuant to subdivision one of this section and provide them with an opportunity to contest the registration in accordance with this section.


3. The notice required by paragraph (b) of subdivision two of this section must state that:


(a) 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;


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


(c) 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.


4. 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:


(a) the issuing court did not have jurisdiction under title two of this article;


(b) the child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under title two of this article; or


(c) the person contesting registration was entitled to notice, but notice was not given in accordance with the standards of section seventy-five-g of this article, in the proceedings before the court that issued the order for which registration is sought.


5. 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.


6. 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.


S 77-e. Enforcement of registered determination.

1. A court of this state may grant any relief normally available under the laws of this state to enforce a registered child custody determination made by a court of another state.


2. A court of this state shall recognize and enforce, but may not modify, except in accordance with title two of this article, a registered child custody determination of a court of another state; provided, however, that recognition and enforcement of the determination would not violate subdivision one-c of section two hundred forty of this chapter or section one thousand eighty-five of the family court act.


S 77-f. Simultaneous proceedings.

 If a proceeding for enforcement under this title is commenced in a court of this state and the court determines that a proceeding to modify the determination is pending in a court of another state having jurisdiction to modify the determination under title two of this article, the enforcing court shall immediately communicate with the modifying court. The proceeding for enforcement continues unless the enforcing court, after consultation with the modifying court, stays or dismisses the proceeding.


S 77-g. Expedited enforcement of child custody determination.

1. A petition under this title 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.


2. A petition for enforcement of a child custody determination must state:


(a) whether the court that issued the determination identified the jurisdictional basis it relied upon in exercising jurisdiction and, if so, what the basis was;


(b) 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;


(c) whether any proceeding has been commenced that could affect the current proceeding, including proceedings relating to domestic violence, child abuse or neglect, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding;


(d) the present physical address of the child and the respondent, if known;


(e) 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


(f) if the child custody determination has been registered and confirmed under section seventy-seven-d of this title, the date and place of registration.


3. 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 within three court days and may enter any order necessary to ensure the safety of the parties and the child. The hearing must be held not more than three court days after the filing of the petition, provided that the petition has been served not less than twenty-four hours prior to the hearing. Service may be by any means directed by the court pursuant to section three hundred eight of the civil practice law and rules. The court may extend the date of the hearing briefly for good cause shown or upon the request of the petitioner.


4. An order issued under subdivision three of this section 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 seventy-seven-k of this title, and may schedule a hearing to determine whether further relief is appropriate, unless the respondent appears and establishes that:


(a) the child custody determination has not been registered and confirmed under section seventy-seven-d of this title and that:


(1) the issuing court did not have jurisdiction under title two of this article;


(2) the child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court having jurisdiction to do so under title two of this article or that enforcement would violate subdivision one-c of section two hundred forty of this chapter or section one thousand eighty-five of the family court act;


(3) the respondent was entitled to notice, but notice was not given in accordance with the standards of section seventy-five-g of this article, in the proceedings before the court that issued the order for which enforcement is sought; or


(b) the child custody determination for which enforcement is sought was registered and confirmed under section seventy-seven-c of this title, but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under title two of this article.


S 77-h. Service of petition and order.

Except as otherwise provided in section seventy-seven-j of this title, the petition and order must be served, by any method authorized by the law of this state, upon respondent and any person who has physical custody of the child.


S 77-i. Hearing and order.

1. Unless the court issues a temporary emergency order pursuant to section seventy-six-c of this article, 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:


(a) the child custody determination has not been registered and confirmed under section seventy-seven-d of this title and that:

(i) the issuing court did not have jurisdiction under title two of this article;

(ii) 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 title two of this article or enforcement of the determination would violate subdivision one-c of section two hundred forty of this chapter or section one thousand eighty-five of the family court act; or

(iii) the respondent was entitled to notice, but notice was not given in accordance with the standards of section seventy-five-g of this article, in the proceedings before the court that issued the order for which enforcement is sought; or


(b) the child custody determination for which enforcement is sought was registered and confirmed under section seventy-seven-d of this title but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under title two of this article.


2. The court shall award the fees, costs, and expenses authorized under section seventy-seven-k of this title 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.


3. 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.


4. 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 act.


S 77-j. Warrant to take physical custody of child.

1. 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 at imminent risk of suffering serious physical harm or of removal from this state.


2. If the court, upon the testimony of the petitioner or other witness, finds that the child is likely to suffer imminent serious physical harm or to be removed from this state, it may issue a warrant to take physical custody of the child. Except in extraordinary circumstances, the petition must be heard on the next court day after the warrant is executed. Any adjournment for extraordinary circumstances shall be for not more than three court days. The application for the warrant must include the statements required by subdivision two of section seventy-seven-g of this title.


3. A warrant to take physical custody of a child must:


(a) recite the facts upon which a conclusion of imminent serious physical harm or removal from the jurisdiction is based;


(b) direct law enforcement officers to take physical custody of the child immediately and deliver the child to the petitioner or, where necessary, to act jointly with the local child protective service to take immediate steps to protect the child; and


(c) provide for the placement of the child pending final relief.


4. The respondent must be served with the petition, warrant, and order immediately after the child is taken into physical custody.


5. 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 in order to execute the warrant and take physical custody of the child. If required by exigent circumstances of the case and necessary to the protection of the child, the court may authorize law enforcement officers to make a forcible entry at any hour.


6. The court may impose conditions upon placement of a child to ensure the appearance of the child and the child`s custodian.


S 77-k. Costs, fees and expenses.

1. 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 child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be inappropriate. No fees, costs or expenses shall be assessed against a party who is fleeing an incident of domestic violence or mistreatment or abuse of a child or sibling, unless the court is convinced by a preponderance of evidence that such assessment would be clearly appropriate.


2. The court may not assess fees, costs, or expenses against a state unless authorized by law other than this article.


S 77-l. Recognition and enforcement.

A court of this state shall accord full faith and credit to an order issued by another state and consistent with this article which enforces a child custody determination by a court of another state unless the order has been vacated, stayed, or modified by a court having jurisdiction to do so under title two of this article, unless recognition and enforcement would violate subdivision one-c of section two hundred forty of this chapter or section one thousand eighty-five of the family court act.


S 77-m. Appeals.

An appeal may be taken from a final order in a proceeding under this title in accordance with article fifty-five of the civil practice law and rules and article eleven of the family court act and may be granted a preference in the discretion of the court to which the appeal is taken. Unless the court enters a temporary emergency order under section seventy-six-c of this article, the enforcing court may not stay an order enforcing a child custody determination pending appeal.


S 77-n. Role of prosecutor or public official.

1. In a case arising under this article or involving the Hague Convention on the Civil Aspects of International Child Abduction, the prosecutor or other appropriate public official may take any lawful action, including resort to a proceeding under this title or any other available civil proceeding to locate a child, obtain the return of a child, or enforce a child custody determination if there is:


(a) an existing child custody determination;


(b) a request to do so from a court in a pending child custody proceeding;


(c) a reasonable belief that a criminal statute has been violated; or


(d) a reasonable belief that the child has been wrongfully removed or retained in violation of the Hague Convention on the Civil Aspects of International Child Abduction.


2. A prosecutor or appropriate public official acting under this section acts on behalf of the state or local government entity and may not represent any private party.


S 77-o. Role of law enforcement.

At the request of a prosecutor or other appropriate public official acting under section seventy-seven-n of this title, a law enforcement officer, as defined in subdivision thirty-four of section 1.20 of the criminal procedure law, may take any lawful action reasonably necessary to locate a child or a party and assist a prosecutor or appropriate public official with responsibilities under section seventy-seven-n of this title.


S 77-p. Costs and expenses.

If the respondent is not the prevailing party, the court may assess against the respondent all direct expenses and costs incurred by the prosecutor or other appropriate public official and law enforcement officers under section seventy-seven-n or seventy-seven-o of this title.



LINK TO SECTIONS OF THE UCCJEA

DRL 75     DRL 76    DRL 77    DRL 78    DRL 78-a




This section of the Domestic Relations Law is provided as part of a free educational service by J. Douglas Barics, attorney at law for reference only. Statutes and codes such as the UCCJEA -  DRL 77 are frequently amended, and no representation is made that the above version of DRL 77 - UCCJEA Title III - Enforcement is current. Updated statutes and codes may be available at the New York State Legislature Website. No statute should be relied on without understanding controlling case law which may further interpret it. An attorney should be consulted for legal advice.


If you have any questions or comments, please feel free to contact Mr. Barics at lawyer@jdbar.com or (631) 864-2600. For more articles and information, please visit www.jdbar.com.


J. Douglas Barics, Esq. – Divorce, family, matrimonial, trial and appeals lawyer in Long Island, New York



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