Uniform Parental Rights Enforcement and Protection Act

UPREPA - Uniform Parental Rights, Enforcement and Protection Act

Uniform Parental Rights Enforcement and Protection Act Petitioned beginning September 2000 to the US Federal Government and the Several States by Children's Justice. The following represents "model legislation" proposed to the 50 States of the United States of America, along with federal oversight requirements (following the main body of the proposed legislation) similar to that proposed, passed and enacted under the UCCJA - Uniform Child Custody Jurisdiction Act.

PROPOSED UNIFORM STATE STATUTORY LANGUAGE ACTIONS ABOLISHED - CHILD CUSTODY - EXCEPTIONS - INHERENT RIGHTS OF CHILD

Legislative Declaration

101. Legislative Declaration The remedies provided by law on or before enactment of this legislation, for the enforcement of actions based upon issues of custody of children after dissolution of marriage or legal separation, or in the case of unmarried birth of children, have been subjected to grave abuses, caused extreme annoyance, embarrassment, humiliation, and devastating psychological, emotional, mental and pecuniary damage to many persons wholly innocent and free of any wrongdoing who were merely the victims of circumstances, and have been exercised by unscrupulous persons for their unjust enrichment, vengeance or other venal purpose contrary to the interests of the child, and have furnished vehicles for the commission or attempted commission of crimes against children and parents and in many cases have resulted in the perpetuation of frauds.

It is, therefore, hereby declared as the public policy of the state that the best interests of the people of the state, and especially the minor children of the state, will be served by the abolition thereof, except in the below defined and proven circumstances. Consequently, in the public interest, the necessity for the enactment of this Act is hereby declared as a matter of legislative determination.

Definition and interpretation of terms

102. Definition and interpretation of terms. As used in this act, unless the context otherwise requires, the term:

(a) "Parent" shall mean the natural, biological parent of a child, or the duly adoptive parent of a child pursuant to this state's adoption statutes, but shall not be construed to mean a foster parent as defined in the statutes of this state, or a parent whose parental rights have been terminated pursuant to statute.

(b) "Child" shall mean the natural, biological child of a parent, or the duly adopted child of a parent pursuant to this state's adoption statute, but shall not be construed to mean the child of a parent whose parental rights have been terminated pursuant to statute.

(c) "Inherent rights" shall mean the natural, fundamental, inalienable right of the child to a full relationship with each parent, and the natural, fundamental, inalienable right of the parent to a full relationship with the child, which may be abridged only in the case of the existence of certain exceptions as more fully set forth in this Act.

(d) The "inherent relationship" shall mean the natural, fundamental, inalienable child-parent relationship, providing the child approximately equal access to each parent.

Acts Of The Legislature

103. Rights of children to parental contact. The general assembly hereby finds and declares that children are endowed with certain inalienable rights, among them the natural, fundamental and inalienable right to a full and complete, inherent relationship with and full access to both its parents both during marriage and following dissolution of marriage or separation, and at all times for children born out of wedlock. This right of the child extends to essentially equal access to each parent to enjoy the love, affection, attention and contact between the child and each parent, and this right of the child shall not be abridged by the courts of this state, nor by any other agency or division of the state, nor by a parent of the child or any other person, except in the circumstances as described in section 109.

104. Custody of the child abolished. Except as provided for in section 109, separate custody of the child by one parent is hereby abolished. A child shall continue to enjoy its inherent rights in and to its parents, and each parent shall continue to enjoy its inherent parental rights in and to its child, and, as provided by law, each parent shall continue to exercise its parental responsibilities and obligations to its child, subsequent to dissolution of marriage or separation, and at all times in the case of a child born out of wedlock, subject to the provisions of this Act.

105. Civil causes for custody of children abolished. All civil causes of action for custody of children, whether at law or in equity for separate custody of the child between parents or between a parent and another party claiming a right to bring such action, and whether as part of a proceeding for dissolution of marriage as provided for in statute, or as part of a post-decree action, or as an independent action by a person other than a child's parent or by the state or any agency thereof, are hereby abolished, except as provided for in [Insert statute on child dependency from juvenile law].

106. Effect on existing orders for custody and parenting time. Except as otherwise provided for in this Act, all judgments, decrees, and orders, whether interlocutory or final in character, awarding custody of the child to one parent as against the other, or to a person not a parent, wherein the judgment, decree or order was based on a lesser standard of proof than is called for in section 109, and all claims or causes of action for sole or joint custody, whether such claim or cause of action arose within or without this state but which affects the rights of persons subject to the jurisdiction of the courts of this state, are declared to be contrary to the public policy of this state and absolutely void.

107. Rights of children in non-intact families. The general assembly hereby declares that children whose parents are dissolving or have dissolved their marriage or are separated, and children born out of wedlock, have certain inalienable rights in the determination of their continued relationship with each parent, including the right to have such determinations based upon the inherent right of the child to its inherent relationship with, and the care, companionship, control and nurture of the child by, each parent.

108. Best Interests of child. The general assembly finds and declares that it is in the best interest of all parties and all children to encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents have separated or dissolved their marriage, and that it is in the best interest of children born to an unmarried mother to have frequent and continuing contact with both parents. In order to effectuate this goal, the general assembly urges parents to share the rights and responsibilities of childrearing and to encourage the love, affection, and contact between the children and the parents. The General Assembly hereby finds and declares that separation of a child from a parent after divorce or unmarried birth can and likely will endanger the child's physical health and significantly impair the child's emotional development.

109. Exceptions. The fundamental child-parent relationship, the inherent relationship, may be altered or abridged by operation of law solely in the following circumstances. The standard of proof of a claim of abuse or neglect by a parent shall be beyond a reasonable doubt as established by conviction for a criminal offense, and there shall be an absolute presumption of innocence absent such degree of proof.

(1) Death of both parents. In the event neither parent of a child is living, custody of a child may vest with the legal custodian of the child, pursuant to [cite state-specific Statute on non-parental custody requirements], or the state, pursuant to [cite state-specific Statute on juvenile dependency].

(2) Abuse or neglect of the child. In the event a parent has been proven to have abused the child under [Insert state-specific cite on physical and sexual abuse of children] or neglected the child under [Insert state-specific cite on neglect of children], and has been convicted under said statutes, the court may enter an order for custody of the child solely to the other parent, subject to the provisions of this Act; or, in the event both parents have been proven to have abused or neglected the child, and have been convicted under either of said statutes, the court may enter an order for custody of the child as provided for in [Insert cite of non-parental custody award criteria], subject to the provisions of this Act. If the court enters an order for custody of the child pursuant to this subsection, the court shall enter an order for parenting time to either or both parents, unless the court finds by clear and convincing evidence that the child is unable to tolerate contact with that parent. The provision for parenting time entered pursuant to this subsection shall be in conformance with section 111.

(3) False allegations. False allegations of abuse or neglect in a dissolution of marriage proceeding or proceeding to determine a child's relationship with a parent shall operate as an absolute bar to a parent's right to make decisions regarding the child's upbringing, including but not limited to the child's education, religious training and medical treatment. For the purpose of this Act, a "false allegation" is one that is either known to be false or one that a reasonable person should have known is false. By way of example but not enumeration, a finding by state child protective services that the alleged abuse was "not substantiated", or any disposition under a lower standard of evidence (such as "unfounded", or "closed without investigation"), or failure to report the alleged abuse contemporaneously with the act alleged to the police and/or child protective services shall be deemed conclusive evidence of the falsity of the claim so made. A parent so barred shall nonetheless be entitled to reasonable parenting time not inconsistent with protecting the child from further false abuse or neglect allegations, the terms of which shall be defined with specificity by the court along with procedures to prevent further false reports under section 109. A second false allegation as defined herein, notwithstanding the court's protective procedures, by the same parent, shall operate to permanently bar parenting time of the child so involved by that parent in addition to the previous penalties imposed.

(4) Imprisonment of a Parent. Imprisonment of a parent for offenses not related to child neglect or abuse shall operate to suspend that individual's parental rights and responsibilities during the time of such imprisonment, with all rights and responsibilities being restored under this Act at the time of their release from confinement.

110. Rights of persons whose parental rights are terminated. Notwithstanding any provision of law to the contrary, a parent whose parental rights have been previously terminated may bring action to restore those rights, if termination of parental rights was based on a lesser standard of proof than is called for in this Act.

111. Implementation of protective measures. Upon a finding by a court of competent jurisdiction that protective measures are required to insure the safety of the children while in the care, custody or control of one or both parents, the court shall enter upon the record of such proceedings the complete findings of fact and conclusions of law which gave rise to the implementation of such protective measures. Such protective measures may include supervision of parenting time. Such measures shall be designed in the most minimally invasive manner to provide the protections deemed necessary. Any order for protective measures shall, in addition, set forth in detail the conditions which shall be deemed proof of rehabilitation of the parent, or a time certain for the cessation of the protective measures without further proceedings, or both. Notice by the parent subject to protective measures of that parent's satisfaction of the conditions of the order for cessation of protective measures, accompanied by motion for the cessation of said measures, shall constitute a rebuttable presumption of the satisfaction of the conditions precedent for the cessation of protective measures.

112. Parenting Plans.

(1) All litigants in a dissolution of marriage or post-decree proceeding involving children shall submit a proposed parenting plan for the minor children. Said plan shall set forth with specificity the educational and religious upbringing of the children involved, along with a specific schedule during which each child shall be resident with each parent. All such plans shall include comprehensive alternate dispute resolution procedures in the event of conflicts. The court shall admit and enforce any parenting plan agreed to by the parties unless it finds that the plan submitted is unjust or unconscionable on its face at the time it is submitted. A submitted plan may be accepted or rejected only in total. If the parties to such a proceeding are unable to agree upon the terms of such a parenting plan, the parenting plan set forth in subsection(2) of this section shall be imposed by the court until such time as an alternative plan is agreed to and accepted by the court.

(2) The following parenting plan, as set forth in this subsection (2), shall be ordered by the court in the event the parties are unable to agree upon a parenting plan.

(a) The children shall alternate residence with each parent on each calendar Wednesday at 6:00 PM, except during one four week period during the summer school break when each parent shall have residence for one uninterrupted two-week period for the purpose of summer vacation.

(b) If multiple children are involved in the dispute all children shall rotate with each parent such that all related children are present in each household at the same time.

(c) Neither parent shall hinder, infringe upon or prevent reasonable private telephonic or other communication between the children and parent not currently the resident parent.

(d) Neither parent may move beyond the school district boundaries in which the children reside at the initiation of proceedings so as to cause the child's school district to change without written agreement of the other parent, nor may either parent withdraw the children from the school district of their current attendance without permission of the other parent in writing.

(e) Each parent shall be solely responsible for all expenses and costs of the children while they are in their respective care, including clothing, food, shelter, education, child care and elective activities.

(f) Neither parent shall, without the prior consent of the other parent, schedule elective activities during the parenting time of the other parent that would infringe upon that parent's access to or time with the child.

(g) Extraordinary medical and other expenses, which are not of a discretionary nature, shall be apportioned in equal amounts to both parents, and such amounts, if unpaid, shall constitute a judgment for said amounts against a parent. It shall be an absolute defense to such an assessment that (1) the expense was voluntary or discretionary in nature (including but not limited to cosmetic procedures, trips, enrichment activities or the like), (2) the expense was required by medical necessity but was not an emergency requiring immediate action to protect life or health and the other parent was not notified and consulted, or was not a full partner to the decision to undertake the expense, or, if consultation was attempted but agreement was not reached, the dispute was not subjected to the resolution procedures in the parenting plan. No part of this clause shall operate to inhibit the immediate provision of necessary emergency medical care.

(h) Routine medical and related expenses (e.g. dental cleanings, etc.) shall be equally apportioned to each parent. Neither parent shall undertake any such expense or activity without full consultation with and agreement by the other parent.

(i) Each parent shall be responsible for physically retrieving the children from the other or their activities at said time of exchange, and all costs occasioned by the nonperformance or late arrival of a parent for pickup shall be taxed to the non-performer as a money judgment.

(j) All parental responsibility shall terminate upon each child reaching the age of 18 years, with any further parental responsibility or expense being at the discretion of each parent. Neither parent shall be obligated to incur post-secondary educational expense on behalf of the child.

(k) Dispute resolution.

(I) Disputes arising from the attempted implementation of this plan shall be submitted to an arbitrator named by the court.

(II) The arbitrator is permitted to tax equally to the parties the costs of arbitration at a rate not to exceed $100 per hour.

(III) Both parties shall submit their positions to the arbitrator in written form, along with all supporting evidence for their position, and the arbitrator shall render a decision within a reasonable amount of time, which shall not exceed five business days.

(IV) The arbitrator's decision shall set forth in detail the findings of fact that are used to reach the decision rendered, citing the provided evidence, along with the decision itself.

(V) If either party disagrees with the arbitrator's decision they may commencelegal proceedings for further relief by motion to the court.

(VI) The court may require by way of injunction or other order that either party or both parties comply with an arbitration decision pending judicial review.

113. Move-aways. Except by agreement of the parties, neither parent may move the child's physical residence from the school district where the child resided at the time of the initial filing for dissolution, nor may either parent withdraw the child or children from their school of habitual attendance without the written consent of the other parent. The following rules shall govern all such requests and attempts:

(a) For children more than six months of age, the situs and residence shall be deemed to be their habitual residence in the six months preceding the filing of the dissolution or parenting action. For children under six months old, their residence shall be determined as the habitual residence of the mother in the six months preceding the filing of the action.

(b) No act or move by a parent and/or children immediately preceding the filing of a petition shall operate to establish their habitual residence.

(c) A parent who moves his or her personal residence without the child or children involved shall be presumed to have abandoned equal custody and parenting of the child so involved. Such a parent:

(I) Shall be assessed all costs of implementing his or her parenting time with the child.

(II) Shall be assessed child support pursuant to state statute should that parent fail to exercise substantially equal shared parenting. Such child support shall not include the direct expense of implementing his or her parenting time subsequent to the move.

(III) Shall not impede the ordinary educational and extracurricular activities of the child or children so involved.

(d) A parent shall be deemed to have moved his or her residence if that parent substantially abandons his or her previous address, registers to vote in another state or locale, registers a motor vehicle in another state, obtains an occupational license in another state, or becomes domiciled under the provisions of state law in a foreign state.

(e) A parent shall not be deemed to have violated the provisions of this section if that parent moves his or her residence within the school district boundaries of the children's habitual residence and provides at least 7 days prior written notice to the other parent of both his or her intent to do so and the moving parent's new address.

(f) A parent who attempts to violate the provisions of this section, whereby that parent removes or attempts to remove the children from their habitual residential locale, shall be subject to indictment and trial for the crime of parental abduction under [Insert state statute for parental abduction].

(g) A parent who previously had been non-resident in the child's and other parent's habitual domicile may restore their parental rights and responsibilities by moving his or her personal residence within the school district boundary of the child or children so involved. A parent intending this act must notify the other parent in writing at least 30 days prior to effectuating such a move.

(h) A parent who is the resident parent of the child, where the other parent has voluntarily abandoned shared residency and shared parenting, may move on an unrestricted basis with the children provided that:

(I) The move will not substantially increase the difficulty in exercising parenting time by the other parent, AND

(II) They have not been served notice under subsubsection (g) that the other parent intends to return to the area where the residential parent currently resides.

114. No disparagement; controlling law. The rights and responsibilities enumerated herein shall operate only to the benefit of biological or adoptive parents, and shall not inure to the benefit of any other party. Any legislation or judgment within this state, to the extent that it operates to diminish, impair or infringe upon any of the rights and responsibilities enumerated herein, shall be null and void and of no further force or effect.

115. Notification required. The general assembly directs that a pamphlet describing the rights and responsibilities for both parents and children, as set forth in this Act, be produced and distributed along with each application for a marriage license, as well as for public distribution by the office that distributes marriage license applications on request by any person in the state. This pamphlet shall include the rights and responsibilities set forth in this legislation, as well as the acts that constitute abuse or neglect of a child within the state and the criminal penalties therefor. Updates to the standards for abuse and neglect prosecutions and their penalties, must be published, with conspicuous notice in the major daily newspapers and other media when significant statutory revisions are made.

116. Prevailing law; conflict of laws. Any provision of law in conflict with any term or provision of this Act shall be null and void and of no further force or effect. In any determination wherein the provisions of law conflict with or contravene any term or provision of this Act, the requirements of this Act shall prevail.

Federal Oversight and Implementation of UPREPA Among The Several States

CONGRESSIONAL DECLARATION:

The remedies provided by law on or before enactment of this legislation, for the enforcement of actions based upon issues of custody of children after dissolution of marriage or legal separation, or in the case of unmarried birth of children, have been subjected to grave abuses, caused extreme annoyance, embarrassment, humiliation, and devastating psychological, emotional, mental and pecuniary damage to many persons wholly innocent and free of any wrongdoing who were merely the victims of circumstances, and have been exercised by unscrupulous persons for their unjust enrichment, vengeance or other venal purpose contrary to the interests of the child, and have furnished vehicles for the commission or attempted commission of crimes against children and parents and in many cases have resulted in the perpetuation of frauds.

It is, therefore, hereby declared as the public policy of the United States that the best interests of the people of the several states, and especially the minor children of the several states, will be served by the abolition of custody thereof, except in the defined and proven circumstances set forth in the Uniform Parental Rights Enforcement and Protection Act hereby proposed to the several states.Consequently, in the public interest, it is the determination of the Congress of the United States of America that the following shall be the policy and the Act of the United States upon passage of the Uniform Parental Rights Enforcement and Protection Act into law by each of the several states without regard to the universality of the adoption of said Act.

PROVISIONS:

That the several states are to be presented the model legislation entitled Uniform Parental Rights Enforcement and Protection Act, otherwise to be known and recognized as "UPREPA", as set forth hereinabove.

That the continued receipt of Title IV-D, TANF, and all other federal funds intended and designated for promotion, welfare, and assistance to families and children whether by virtue of grant, matching funds, or direct expenditure of the United States government within the individual states shall be conditioned upon the passage of UPREPA so proffered.

That states may modify the form but not substance of UPREPA so as to conform to the statutory requirements of that state not in conflict with the terms and provisions of UPREPA.

IMPLEMENTATION:

The Attorney General shall be charged with the responsibility of reviewing modified UPREPA language that the states proffer to the Federal Government prior to passage to certify its functional equivalency to the model UPREPA legislation.

The Attorney General's decision, legal reasoning, all work product, correspondence and memoranda related to review of conformance to UPREPA shall be published in the Federal Register.

The Attorney General shall certify to the Congress of the United States, under penalty of perjury, and not later than ninety days prior to the introduction of each year's federal budget, the list of states which are in full compliance with the requirements of this legislation and of states which are not in full compliance therewith.

State funding under the Federal Budget of the United States intended and designated for promotion, welfare, and assistance to families and children shall be reduced on a pro-ratable basis for non-compliant states based on the following schedule:

From the date of passage of this Act until ninety days prior to the first introduction of the federal budget shall be deemed a grace period, wherein no penalties shall apply.

For the next budget cycle following passage of this Act, ten percent (10%) of funds shall be withheld from non-compliant states.

For the second and each successive year in which a state is not in compliance, the percentage of deduction shall be doubled, such that in the second year 20% shall be withheld, the third 40%, the fourth 80% and the fifth and all subsequent years 100%.

A state that was formerly listed as compliant but is later found to be non-compliant shall begin its deduction schedule at twice the starting deduction, or twenty percent (20%).

Funds withheld from non-compliant states shall be distributed to compliant states as directed by the Congress of the United States on a pro rata basis based on the individual state's percentage of population among the states then in compliance solely for the purpose of promoting the welfare of families and children in those states.

A state which cures its earlier violation of the UPREPA statutory requirements may not retroactively recover funds previously withheld, and allocations and withholdings, once made by the Congress, shall remain in full force and effect and may not be altered, amended or remediated by prospective or retrospective legislation.