11.02.305 Saint Regis Mohawk Tribe Uniform Child Custody Jurisdiction Enforcement Act

(a) Purpose. This section is to provide an effective mechanism to obtain and enforce orders of custody and visitation across jurisdictional lines including temporary orders if the issuing court had the requisite jurisdiction. This section only applies to a child custody proceeding in which legal custody, physical custody, or parenting time to a child is an issue, which for this purpose of this Code is limited to a proceeding for a divorce, separation, custody or parenting time under this chapter, and protection orders from domestic violence, but excludes neglect, abuse, dependency, guardianship, termination of parental rights, juvenile delinquency, person in need of supervision, and contractual emancipation. It also excludes child support proceedings since these are covered under Chapter 11.03 of this title and can be registered for enforcement under that Chapter.

(b) International application. The Court shall treat a foreign country as if it were a state of the United States for the purpose of applying this section. A child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this article must be recognized and enforced. The Court need not apply this section if the child custody law of a foreign country, as written or as applied, violates fundamental principles of human rights.

(c) Effect of a child custody determination. A child custody determination made by a court that had jurisdiction under this section binds all people who have been served in accordance, with the laws of this Tribe or who have submitted to the jurisdiction of the Court, and who have been given an opportunity to be heard. As to those people, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.

(d) Notice. Notice required for the exercise of jurisdiction when a person is outside this jurisdiction may be given in a manner prescribed by the Tribe's Rules of Civil Procedure for service of process or according to the place where the person resides. Notice must be given in a manner reasonably calculated to give actual notice, but may be by publication if other means are not effective.

(e) Communication between courts. The Tribal Court may communicate with a court in another tribe or state concerning a proceeding involving jurisdiction under this section. When communicating the following also shall apply:

(1) the Court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made;

(2) communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of the communication;

(3) except as otherwise provided in subdivision three of this section, a record must be made of a communication under this section. The parties must be informed promptly of the communication and granted access to the record; and

(4) for the purposes of this section, "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(f) Taking testimony in another jurisdiction. When taking testimony in another jurisdiction the following shall apply:

(1) in addition to other procedures available to a party, a party to a child custody proceeding may offer testimony of witnesses who are located in another jurisdiction, including testimony of the parties and the child, by deposition or other means allowable in this Court for testimony taken in another jurisdiction. The Court on its own motion may order that the testimony of a person be taken in another jurisdiction and may prescribe the manner in which, and the terms upon which, the testimony is taken;

(2) this Court may permit an individual residing in another jurisdiction to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state. This Court shall cooperate with courts of other jurisdictions in designating an appropriate location for the deposition or testimony; and

(3) documentary evidence transmitted from another jurisdiction to this Court by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission.

(g) Cooperation between courts; preservation of records. The following shall apply:

(1) this Court may request the appropriate court of another jurisdiction to:

(A) hold an evidentiary hearing;

(B) order a person to produce or give evidence pursuant to procedures of that jurisdiction;

(D) forward to this Court a certified copy of the transcript of the record of the hearing, the evidence otherwise presented, and any evaluation prepared in compliance with the request; and

(E) order a party to a child custody proceeding or any person having physical custody of the child to appear in the proceeding with or without the child;

(2) upon the request of a court of another jurisdiction, this Court may hold a hearing or enter an order described in subdivision one of this section.

(3) this Court shall preserve the pleadings, orders, decrees, records of hearings, evaluations, and other pertinent records with respect to a child custody proceeding at least until the child attains eighteen years of age. Upon appropriate request by a court or law enforcement official of another jurisdiction, the Court shall forward a certified copy of those records.

(h) Initial child custody jurisdiction. This Court may exercise jurisdiction to make an initial child custody determination if:

(1) the Court has jurisdiction under Section 11.02.030;

(2) a court of another jurisdiction does not have jurisdiction under paragraph 1 herein, or a court of the home jurisdiction of the child has declined to exercise jurisdiction on the ground that this Court is the more appropriate forum, and:

(A) the child and the child's parents, or the child and at least one parent, have a significant connection with this jurisdiction other than mere physical presence; and

(B) substantial evidence is available in this jurisdiction concerning the child's care, protection, training, and personal relationships;

(3) all other courts having jurisdiction under paragraph (1) or (2) herein have declined to exercise jurisdiction on the ground that this Court is the more appropriate forum; or

(4) no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2) or (3) of this Subsection.

(i) Exclusive, continuing jurisdiction. Except as otherwise provided in this section, this Court which has made a child custody determination has continuing jurisdiction over the determination until this Court determines it no longer has jurisdiction under this chapter and that substantial evidence is no longer available in this jurisdiction concerning the child's care, protection, training, and personal relationships.

(j) Jurisdiction to modify determination. This Court may not modify a child custody determination made by a court of another jurisdiction unless:

(1) this Court has authority to make an initial determination; and

(2) the court of the other jurisdiction determines it no longer has exclusive, continuing jurisdiction, or that this Court would be a more convenient forum; or

(3) this Court or a court of another jurisdiction determines that the child or the child's parents do not presently reside in the other jurisdiction.

(k) Temporary emergency jurisdiction. This Court may take temporary emergency jurisdiction if the child is present in this jurisdiction and the child has been abandoned or it is necessary in an emergency to protect the child, a sibling or parent of the child so long as there is no order from another jurisdiction to be enforced. If there is an order from another jurisdiction then such order may be registered as outlined in subsection (o)(1) along with a request to enforce with an expedited hearing to be scheduled within three (3) days. A petition to register along with a request for expedited enforcement shall be served with a summons or order to the show cause as directed by the Court to the parent(s) and anyone who has physical custody of the child(ren) The Court shall not enter an order unless all of the necessary parties have been served. In any order related to an emergency or abandonment, the Court shall detail its findings regarding the emergency and if there is an existing order the basis for registering the order. The Court's findings shall include specific findings regarding the imminent risk to the health and safety of the child(ren) or the child(ren)'s abandonment.

(l) Simultaneous proceedings. This Court may not exercise its jurisdiction regarding a child custody proceeding if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another jurisdiction substantially in conformity with this section, unless the proceeding has been terminated or is stayed by the court of the other jurisdiction because this Court is a more convenient forum.

(1) Except as otherwise provided in this chapter, this Court, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties. If this Court determines a child custody proceeding has been commenced in a court in another jurisdiction having jurisdiction substantially in accordance with this section, this Court shall stay its proceeding and communicate with the other court.

(2) In a proceeding to modify a child custody determination, this court shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may:

(A) stay the proceeding for modification pending the entry of an order of a court of the other jurisdiction enforcing, staying, denying, or dismissing the proceeding for enforcement;

(B) enjoin the parties from continuing with the proceeding for enforcement; or

proceed with the modification under conditions it considers appropriate.

(3) If a proceeding for enforcement under this section is commenced in this Court, and the Court determines that a proceeding to modify the determination is pending in a court of another jurisdiction having jurisdiction to modify the determination, the 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.

(m) Inconvenient forum. This Court may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another jurisdiction is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the child, the law guardian, the guardian ad litem, or upon the court's own motion, or request of another court.

(1) Before determining whether it is an inconvenient forum, this Court shall consider whether it is appropriate for a court of another jurisdiction to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:

(A) whether domestic violence or mistreatment or abuse of a child or sibling has occurred and is likely to continue in the future and which jurisdiction could best protect the parties and the child;

(B) the length of time the child has resided outside this jurisdiction;

(D) the relative financial circumstances of the parties;

(E) any agreement of the parties as to which court should assume jurisdiction;

(F) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(G) the ability of each court to decide the issue expeditiously and the procedures necessary to present the evidence; and

(H) the familiarity of each court with the facts and issues in the pending litigation.

(2) If this Court determines that it is an inconvenient forum, and that a court of another jurisdiction is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated jurisdiction and may impose any other condition the Court considers just and proper.

(n) Duty to enforce. This Court 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 section or the determination was made under factual circumstances meeting the jurisdictional standards of this section and the determination has not been modified in accordance with this section. This Court may utilize any remedy it has available to enforce a child custody determination made by a court of another jurisdiction. If the Court believes a child(ren)'s health or safety is at imminent risk of danger it may request the assistance of the Tribe's Indian Child Welfare Act ("ICWA") program to take the necessary steps to ensure the child's safety and ICWA may request the assistance of the Saint Regis Mohawk Tribe Police Department.

(o) Registration of child custody determination. In order to register a child custody determination, this Subsection shall apply and procedures outlined must be followed.

(1) A child custody determination issued by a court of another jurisdiction may be registered in this jurisdiction, with or without a simultaneous request for enforcement, by sending to the Court:

(A) a petition 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) 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 (1) herein, the Court shall:

(A) docket the petition together with one copy of the document sought to be registered and/or enforced; and

(B) serve notice upon the persons named by regular mail and provide them with notice of the opportunity to be heard to contest the registration in accordance with this section.

(i) a registered determination is enforceable as of the date of the registration in the same manner as a determination issued by this Court;

(ii) a hearing to contest the validity of the registered determination must be requested within twenty (20) days after service of notice; and

(iii) 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.

(D) A person seeking to contest the validity of a registered order must request a hearing within twenty days after mailing of the notice. At that hearing, the Court shall confirm the registered order unless the person contesting registration establishes that:

(i) the issuing court did not have jurisdiction;

(ii) the child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so; or

(iii) the person contesting registration was entitled to notice, but notice was not given in the proceedings before the court that issued the order.

(E) 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.

(F) 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.