UCAPA: A VALUABLE CUSTODY TOOL

November 23, 2010 § Leave a comment

Mississippi adopted the Uniform Child Abduction Prevention Act (UCAPA) in 2009.  It is codified at MCA §§ 93-29-1 through -23.

Although the title of the law refers only to abduction, the new statutes go much further and offer proceedings and remedies for situations involving violation of a court order by removing or withholding custody of a child, both of which are situations frequently encountered by practitioners and the courts.  The unique aspect of this law is that it is preventative; that is, it allows the court to act in anticipation of a violation, provided that certain things are proven.    You need to be aware of this law and add it to your repertoire of actions in custodial situations of every kind and nature.

The Act is an adjunct to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), MCA §§ 93-27-1 through 209.

The purpose of the law is to provide legal measures to prevent child abduction, which is defined in Section 3 as “wrongful removal or wrongful retention of a child,” or wrongful removal of a child, which is defined as “taking of a child that breaches rights of custody or visitation given or recognized under the laws of this state,” or wrongful retention of a child, which is defined as “the keeping or concealing of a child that breaches the right of custody or visitation given or recognized under the law of this state.”  

There are three ways to impose measures under the Act spelled out in Section 7:

  1. A court may on its own motion impose abduction prevention measures if it finds that the evidence establishes a credible threat of abduction.  Section 3 states that the court is any aythorized to establish, enforce or modify a child custody order.    
  2. A party to a child-custody determination or a party having a right under Mississippi law or the law of any other state may petition to have obtain abduction prevention measures.  A child custody determination is defined in Section 3 as “a proceeding in which the legal custody, physical custody, physical custody or visitation with respect to a child is at issue, including divorce and dissolution of marriage, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, or protection from domestic abuse.    
  3. A prosecutor or certain public officials may take action.

Jurisdiction is in any court that has child custody jurisdiction under the UCCJEA.  Also, a court of this state may have temporary emergency jurisdiction under MCA § 93-27-204.

The petition must be verified and include a copy of any existing child-custody determination.  The petition must state a factual basis for the belief that there is a credible risk of abduction, stating which of the factors set out in Section 13 are applicable, and why.  Subject to MCA § 93-27-209(5) (where information must be kept confidential to protect the safety of a child), the petiton must also include (a) the name, birth date and gender of the child; (b) the customary address and current physical location of the child; (c) The identity, customary physical address and current physical location of the respondent; (d) a statement whether a prior action to prevent abduction was filed by anyone having custody of the child, and the date, location and disposition of the action; (e) a statement whether a party has been arrested for a crime related to domestic violence, stalking, child abuse or neglect, and the date, location and disposition of the case; and (e) any other information required to be submitted to the court under § 93-27-209, MCA. 

Section 13 lists factors to be considered by the court in determining whether there is a credible risk of abduction, and allows the court to take into consideration that the respondent may have believed in good faith that her actions were necessary to prevent harm to the child, or that they were done with permission.  The factors include whether there has been:

  1. A previous abduction or attempted abduction;
  2. A threat to abduct;
  3. Recent activity indicating a planned abduction;
  4. Domestic violence, stalking or child abuse or neglect;
  5. Refusal to follow a child-custody determination;
  6. Lack of strong familial, financial, emotional or cultural ties to this state or the United States;
  7. Strong familial, financial, emotional or cultural ties to another state or country;
  8. Likelihood of taking the child to another country that is not a party to the Hague Convention, or the laws of which would bar efforts by the other party to contact or re-gain custody of the child, or which poses a threat to the health or safety of the child, or is a terrorist state, or is one with which this country has no diplomatic relations, or is involved in any external or civil war to which the child may be imposed.
  9. An ongoing immigration proceedings that may result in expulsion;
  10. An application for U.S. citizenship denied; 
  11. Falsified travel, driver’s license or other government-issued documents, or misrepresentations to the United States government;
  12. Use of multiple names;
  13. Any other relevant conduct.

If the action is brought on the court’s own motion, the court must also consider the age of the child, the potential harm to the child, the legal and practical difficulties of returning the child to the jurisdiction if the child were abducted, and the basis for a finding of potential abduction.

An order issued by the court must include the provisions spelled out in Section 15

Measures that may be imposed to prevent abduction as set out in Section 15 may include:

  • Imposition of travel restrictions;
  • Prohibition from removing the child from this state or the United States, from retaining the child in violation of a court order, or even from approaching the child at any location other than one designated by the court for supervised visitation;
  • Requirement to register the court’s order in the other state as a condition precedent for visitation with the child in that state;
  • An order that the child’s name be placed on the U.S. State Department’s Passport Issuance Alert Program;
  • Surrender of passports and prohibition against applying for new or replacement passports or visas;
  • Other measures as spelled out the section.

The court may also limit visitation, require a bond, order educational programs, issue a warrant to take custody of a child, direct law enforcement to locate and take or return custody of a child, and grant any other relief necessary.

The court’s order remains in effect for the time stated in the order, or until emancipation of the child, or until the child attains age 18, or until further order of a court of competent jurisdiction.

This court’s view:  On first blush, it would appear that this would be a rarely-invoked law.  After all, how many times have genuine abduction situations arisen in our courts?  Well, in 2010, I have already had two cases that raised issues under this law.  One involved a citizen of  middle-eastern country married to an American citizen who was alleged to have threatened in the heat of a separation squabble that he would take the children to his country and the mother would never see them again.  The other involved grandparent visitation rights and a threat to take the children to another state or Canada where the parent would no longer be required to submit to the court’s order.

But those specific instances are only the more exotic examples.  With a little imagination and effort, you can find ways to make this statute work for your clients in more prosaic cases.

There have been many scenarios over the course of my legal career where this law would have come into play and provided a remedy where none existed then. 

Practice Tip:  Familiarize yourself with UCAPA and add it to your repertoire to use in child custody, visitation and wrongful retention cases, especially where there are interstate or international considerations.  It can be an important tool in your custody tool box.

PUBLISH RIGHT OR PERISH

November 9, 2010 § 4 Comments

We’ve talked before about what you need to do when publishing process for a defendant whose post office address is known.  You can read that post here.

When you have no information about the defendant’s whereabouts, there are a couple of things you have to do before you can publish.

MRCP 4(c)(4)(A) states in part:

… if it be stated in … sworn complaint or petition that the post office address of the defendant is not known to the plaintiff or petitioner after diligent inquiry, or if the affidavit be made by another for the plaintiff or petitioner, that such post office address is unknown to the affiant after diligent inquiry and he believes it is unknown to the plaintiff or petitioner after diligent inquiry by the plaintiff or petitioner, the clerk … shall promptly prepare and publish a summons to the defendant to appear and defend the suit. 

Your first step is to send your client out into the world to make an effort to find the defendant.  Have her call his relatives and ask about where he is.  If they say the last they heard he was in Milwaukee, have your client call information in Milwaukee or look him up on the internet.  If he remarried, try to contact his later spouse or children.  Suggest she call his former employers or co-workers.  Most of these efforts will be futile, but the efforts themselves, not the success, constitute the “diligent” part of “diligent search.” 

After your client has diligently, but unsuccessfully, tried to find the defendant, prepare your pleadings including a sworn allegation in your pleading or an affidavit that the defendant’s address is unknown to your client “after diligent inquiry.”   You must include that language, or your publication will  be a nullity.

The rule says that the “clerk shall promptly prepare and publish a summons,” but it is the universal practice that the lawyer prepares the summons and gives it to the clerk to issue, and the lawyer carries it to the paper for publication.  The publication must be substantially in the form of MRCP Form 1-C.

Publication is once a week for three successive weeks in a newspaper published in the county.  The publication notice certified by the newspaper is filed in the court file by the lawyer.

The defendant has thirty days from the date of first publication within which to file a responsive pleading.

Once you get before the court, your client or the affiant will have to testify to the efforts they made to locate the defendant.  There is no case law defining the proof necessary to satisfy the diligent inquiry requirement.  In Page v. Crawford, 883 So.2d 609, 611-12 (Miss. App. 2004), the court said this:

There is no bright line rule as to how many efforts must be made by a plaintiff to locate a named defendant to satisfy the requirement of diligent inquiry.  There is also the question of balancing the quality of those inquiries with their quantity. Standing on a street corner and asking passersby if they know the defendant’s location would clearly not constitute diligence, no matter how many persons were asked in that manner. Beyond that, it becomes a matter of balancing quantity, quality and the interests of the parties.

In this case, Page did make several attempts to locate and serve Crawford within the 120-day period, searching through both telephone and utility directories and repeatedly engaging process servers. When Page finally found Crawford’s husband, he refused to accept certified letters regarding the matter. Although land records do seem like an obvious place to conduct an inquiry, Page was looking under a former name that was given at the time of the accident.

In Caldwell v. Caldwell, 533 So.2d 413 (Miss. 1988), the Mississippi Supreme Court found Mr. Caldwell’s half-hearted efforts to discover his wife’s post office address in Alaska to be insufficient, especially in view of the fact that she had family he could have contacted, but did not, to further his search.

I have refused to allow parties to go forward where it was obvious that more could have been done to locate the defendant.  In one case, the plaintiff testified that the last she heard her husband was in prison in Texas.  I pointed out to the attorney that prisoners, of all people, should be among the easiest to locate.  Sure enough, they went back to the drawing board and found him on an internet prisoner locator site.  They then got personal process on him and were able to proceed with an uncontested divorce.    

The purpose of MRCP 4 is to ensure that a defendant receives notice of legal proceedings against him, if at all possible, so that he has the opportunity to defend.  If the court finds that your client’s efforts fulfill that purpose, your publication process will be adequate.  Don’t take your client’s word for it that she has tried to find him and failed.  Make her go through the process of trying.

DON’T FORGET THE THIRD DEGREE IN ADULT GUARDIANSHIPS AND CONSERVATORSHIPS

October 27, 2010 § 1 Comment

Frank Lewis appeared personally in court with his attorney and joined in a request that his son be appointed his conservator.  The idea for the conservatorship arose out of some financial dealings by other members of the family who had powers of attorney.  After a hearing with no record, the Chancellor ruled that a guardian should be appointed instead, due to Frank’s physical infirmities and need for regular kidney dialysis.  The judge appointed Frank’s then attorney as guardian of his estate, and his son as guardian of the person, and cancelled the powers of attorney.

 Frank retained another attorney and appealed the Chancellor’s decision.

The Court of Appeals reversed the trial court and remanded for further proceedings, In The Matter of The Guardianship of the Estate of Frank Lewis, decided October 5, 2010. 

There are several interesting arguments made by both sides, and I commend the decision for your reading, but the issue of interest in this post is that proper notice of the hearing was not given.

There is no question that Frank Lewis was present at the hearing with his retained attorney.  Ordinarily, a party’s presence in court would submit him voluntarily to the jurisdiction of the court.  In order to establish a guardianship, however, MCA § 93-13-281 requires that the proceedings shall join as defendants two of his adult kin within the third degree by proper process, joinder or waiver.  The petition did name two adult relatives within the third degree, but there is no evidence in the record that they were properly summoned, joined, waived process or personally appeared before the court.  The court of appeals reversed and remanded to allow proper notice to two relatives within the third degree and for the court to hear evidence whether Frank does need a guardian.

The moral of the story is that guardianships and conservatorships are creatures of statute, and the statutes must be strictly complied with.  If there are two relatives within the third degree, you must join them.  If there are not two relatives within the third degree, the court is required to appoint a guardian ad litem for the infirm individual.

ADMINISTRATION OF AN INTESTATE ESTATE

August 18, 2010 § 9 Comments

[This outline is based on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]

Statutory order of preference for appointment of Administrator.  § 91-7-63, MCA.

  • Surviving spouse.
  • Next of kin, if not otherwise disqualified.
  • Other third party, bank or trust company.
  • If no application is made within 30 days of the decedent’s death, administration may be granted to a creditor or other suitable person.
  • If no application is made and the decedent left property in Mississippi, county administrator or sheriff may be appointed.  § 91-7-79 and -83, MCA.

Oath and Bond.

  • At the time that Letters of Administration are granted, the Administrator must take and subscribe the oath set out in § 91-7-41, MCA.
  • At the same time the Administrator must also post a bond in the full value of the personal estate unless al heirs are competent and consent to waive or reduce bond, or unless the Administrator is the sole heir.  § 91-7-67, MCA.

Notice to Creditors.

Administrator has the responsibility to provide notice to creditors in the order and form prescribed in § 91-7-145, MCA:

  • Adminisrator must make a reasonably diligent effort to identify creditors having a claim against the estate, and to mail them actual notice of the 90-day time period within which to file a claim.  
  • Administrator must file affidavit of known creditors and attest to having served actual notice on them. 
  • After the affidavit of known creditors has been filed, Administrator publishes notice to creditors in a local newspaper notifying them that they have 90 days within which to file a claim against the estate.  The notice must run three times, once per week for three consecutive weeks, and must include the name of the estate and the court file number.
  • Administrator must file proof of the newspaper publication with the court.
  • Publication may be waived by the court in small estates with a value not more than $500.

Inventory and Appraisal.

  • Unless excused by the court, the Administrator must complete and file inventory and appraisal within 90 days from the grant of Letters of Administration.  § 91-7-145, MCA.

Determination of Heirs.

  • An action to determine heirs must be brought before the estate may be closed.
  • Publication process to the unknown heirs of the decedent must be made.
  • Determination of heirship requires 30 days’ process and should be to a day certain so tha the unknown heirs may be called.

Interim Hearings.

  • Held as necessary to meet needs of the estate or to resolve interlocutory conflicts among the parties.
  • A hearing to determine heirs may be necessary if any previously-unknown heir appears and claims heirship and the claim is disputed by the other heirs.
  • A hearing to adjudicate whether to pay probated claims may be necessary if there is any dispute as to the validity or timeliness of the claims.

Petition to Close Estate and Discharge Administrator.

  • The attorney must file a cerificate that there are no probated claims, or that the probated claims have been satisfied.
  • Final account is filed with petition, unless excused by the court.
  • All parties in interest are summoned to a hearing on the final account and petition to close.  § 91-7-295, MCA.
  • If approved, the court enters judgment for final distribution of any property in the Administrator’s care.  § 91-7-297, MCA.
  • Upon court’s approval, the Administrator is allowed a reasonable fee for services and reimbursement of attorney’s fees.  § 91-7-299, MCA.  

HABEAS CORPUS STEP BY STEP

July 14, 2010 § 16 Comments

Habeas corpus is the ancient writ that extends ” … to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto …”  §11-43-1, MCA. 

In Chancery Court, habeas is most often used where one person is withholding custody of a child or a ward from the person who is legally entitled to custody.  This post will focus on Chancery cases involving deprivation of custody, and not on illegal detention by the state.

The procedures for habeas are purely statutory, and are specifically excepted from Rule 81, MRCP. 

The first step in obtaining the writ is to file a petition with the court.  The petition must be sworn, describing where and by whom the person is being detained, the facts and circumstances of the restraint, and the ground for the relief sought.  §11-43-9, MCA.  Venue is proper in the county where the person is being detained, not in the county where a prior judgment of custody was entered.  Logan v. Rankin, 230 Miss. 749, 94 So.2d 330 (Miss. 1957).   

Next, the petition is presented to the court.  Some judges require that the petitioner appear personally to testify in favor of granting the writ.  This judge will issue the writ without testimony of the petitioner if the petition is in proper form, is sworn, and includes each and every element required in §11-43-9, MCA.

If the Chancellor deems the petition adequate, he or she will sign an order directing the clerk to issue the writ.  The Chancellor may issue the writ also.  §11-43-15, MCA.

The usual form of the writ is as follows:

“THE STATE OF MISSISSIPPI, to:  _____________________

WE COMMAND YOU to have the body of ___________________, by you detained, as it is said, before __________, a judge of our _____________ Court, at _____________, forthwith (or on a given day), to do and receive what may be then and there considered concerning him.  Witness my hand, etc.”  §11-43-17, MCA.

The writ is served, and the return made, as with process, by any person whom the court may direct or by the sheriff or any constable.  §11-43-17, MCA.

The person upon whom the writ is served is required to have the person for whose benefit the writ is issued personally before the court at the appointed time.  §11-43-27, MCA.  The court may, however, order immediate apprehension of the person in whose behalf the writ is sought, if the court is satisfied from the sworn allegations or testimony that the person will be removed or concealed so as not to be produced with the writ.  The sheriff or designated person in such a case is directed to take the person into custody and to deliver the person to the court at the appointed place and time.  The statute sets out the required language for the writ in such cases.  §11-43-21, MCA.

The writ may be served on a Sunday in event of an emergency.  §11-43-21, MCA.

The writ is returnable forthwith, or on a particular day within a reasonable time.  §11-43-23, MCA.

§11-43-31, MCA, sets out penalties for disobedience of the writ.  The respondent who disobeys the writ may be ordered to pay the person for whose benefit the writ is issued a penalty of $1,000, and the disobedient party may be punished for contempt.  §11-43-31, MCA.

At the time set for return of the writ, unless the detaining party agrees to release the person detained, a hearing is held to which witnesses may be subpoenaed, and testimony and evidence is taken as at other trials, and the court may continue the case from day to day as the case may require.  §§ 11-43-33 and -39, MCA.  Interestingly, testimony of a witness may be offered by affidavit “whenever the personal attendance of a witness can not be procured,” provided that the affidavit is taken on reasonable notice to the other party.  §11-43-39, MCA.  The court may award “costs and charges, for or against either party, as may seem right.”  §11-43-33, MCA.   

The court may make temporary orders.  §11-43-35, MCA.

The court’s judgment is final, binding and appealable.  §§11-43-43, -53 and -55, MCA.  The habeas court does not have continuing jurisdiction to modify its award.  See, Mitchell v. Powell, 179 So.2d 811 (Miss. 1965).  The jurisdiction of the Chancery Court in a habeas proceeding is temporary in nature.  See, Pruitt v. Payne, no. 2008-CA-00172-COA (Miss. App. 2009). 

Habeas is not to be used as a mechanism to modify prior custody decrees.  Fulton v. Fulton, 218 So.2d 866, Miss. 1969).  In the case of Wade v. Lee, 471 So.2d 1213, 1217 (Miss. 1985), however, the Mississippi Supreme Court carved out an exception so that the petitioner or respondent may use a habeas hearing to obtain temporary custody if the custodial parent has abandoned the child or become “altogether unfit” to have custody.  In such a case, the court should set an expiration date for the temporary order in order to give the parties an opportunity to file appropriate pleadings for modification in the court having jurisdiction to entertain the case.    

An observation:  It is unfortunately frequent that attorneys come to a habeas hearing and try to present a modification case, with its evidence of material change, adverse effect and best interest.  The proper standard in a habeas hearing to achieve a temporary change in custody, however, is to produce proof that the custodial parent is “altogether unfit” or has abandoned the child, and proof that falls short of that standard will result in the child being returned to the custodial parent.  If the proof only supports a modification action, that is the procedure that should be used, and not a habeas proceeding.

PUBLICATION PITFALL

June 17, 2010 § 7 Comments

So you dug and dug until by the hardest you found the defendant’s mailing address in Moosebreath, Idaho.  Good for you.  Pleadings all prepped and filed.  Publication 3 consecutive weeks in the MERIDIAN STAR for that anticipated and fateful day.  Notify client to be there.  No answer filed.  Case called in open court.  Defendant called 3 times.  Present judgment …

Judge shakes his head and says, “Sorry, no jurisdiction.”

What happened?  How do you explain this to your client?

The answer is in Rule 4 (c) (4) (C), MRCP.  That rule states:  “Where the post office address of the absent defendant is stated, it shall be the duty of the clerk to send by mail (first class mail, postage prepaid) to the address of the defendant, at his post office, a copy of the summons and complaint and to note the fact of issuing the same and mailing the copy, on the general docket, and this shall be evidence of the summons having been mailed to the defendant”  [Emhasis added].

Prectice tip:  At the same time that you file your pleading, provide the clerk with an extra copy of the pleading and the summons and specifically request that it be mailed as set out in the rule, and that the facts of issuance of process and mailing be noted on the docket.  Some lawyers, to add a measure of assurance, pay the postage for the clerk to mail it certified mail, return receipt requested, although that should not be strictly necessary if the facts of issuance and mailing are properly noted on the general docket. 

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