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PLEASE DO NOT PASS Senate Bill 1449 (UNIFORM CHILD ABDUCTION PREVENTION ACT)
LaDads ^ | May 9th, 2012 | Nicholas M. James

Posted on 05/09/2012 1:05:00 PM PDT by Pikachu_Dad

YOUR ASSISTANCE PLEASE GUYS.

This bill started its life as HB2136 (Child Abduction PreventionPennsylvaniaHB 21362012KulaIntroduced)

It was dead there, but 13 Senators

(INTRODUCED BY CORMAN (R), TOMLINSON (R), BROWNE (R), D. WHITE (R), RAFFERTY (R), ERICKSON (R), ALLOWAY (R), SOLOBAY (D), BAKER (R), TARTAGLIONE (D), FERLO (D), MENSCH (R) AND LEACH (D), MARCH 20, 2012 )

have picked the bill up. It is out of committee already.

Please help stop this bill.

We appear to have stopped it in the other states so far this year.

Nick

Dear Senator Richard L. Alloway II

PLEASE DO NOT PASS Senate Bill 1449 (UNIFORM CHILD ABDUCTION PREVENTION ACT)

My apologies for the late notice and if I have failed to contact any of the appropriate parties. I am not in the state of Pennsylvania and did not until just a few minutes ago see that you were seeking to pass the unconstitutional UCAPA law.

My name is Nicholas James. I am the President of Louisiana Dads. We are a group located in the state of Louisiana that promotes shared parenting and fair child support orders.

Several years back, we opposed the passage of the UCAPA law in Louisiana. We were successful in getting this horrible law modified from an anti-american law to just a xenophobic law.

PLEASE READ THIS LAW VERY CLOSELY.

Please see the New Jersey's law commission review of this law. After we contacted them, they decided to NOT recommend this law to their legislature. They can give you a far more scholarly view than I will in this simple email.

Before Louisiana, this law had passed unanimously in 7 states. Louisiana passed a modified version of this law - we took the law back to its original intent and made it international only in scope. After Louisiana, this bill has failed to pass in most states that it has been proposed in. We managed to stop it in (2007) Texas, Connecticut, Michigan, Pennsylvania, South Carolina, (2008) New Jersey, New Hampshire, Idaho, (2009) New Hampshire, Iowa, Pennsylvania, Washington, (2010) Hawaii, Iowa, Minnesota, Pennsylvania, South Carolina, Washington, (2011) Rhode Island, Pennsylvania, Virginia, New Mexico, and Texas. Our first loss was Mississippi in 09 - we didn't find out about the bill in that state until the day the governor was signing it. Last year, we had three more losses (Alabama, Tennessee and Florida) because we were busy stopping it in the other seven states that they were seeking passage that year.

Ordinarily, the Uniform Law group proposes excellent laws. The previous year I had spoke in favor of the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA).

But this law (UCAPA) they have gone astray on.

The original intent was good.

The law was designed to prevent the adbuction of children to other countries that do not comply with the international Hague treaty - so there were no effective means to obtain their return.

Then the committee took a wrong turn. They expanded the scope to cover ALL alleged child abductions including inter-state and in-state. This is where they went wrong.

Do you really want to pass a law that allows a divorcing party to file an ex-parte order requesting that the police seize the children from the other parent at 3am in the morning? This is a power for the state or federal government to exercise and only then with the utmost discression. (i.e. Eliane Gonzales)

And the law authorizes such seizures by a disgruntled spouse for such specious reasons as:

The best course on this horrible law is to reject it and send it back to the uniform law people for futher review. The dangers of modifing complex bills on the fly being too great. In Louisiana, we passed a modified version of this law. We stripped out the word STATE from the law and sought to limit its scope back to its ORIGINAL intent - potential abductions to NON-HAGUE countries. We also sought to limit the abuse of the alleged 'indicators of abduction' by requiring that they be consiered in total and not separately. As in your state, this bill sailed through the Louisiana Senate. It was not until the House committee that I was able to get anyone to actually read the bill. Here is what Representative Shirely Bowler (someone who is normally opposed to our isses) said against the bill: I also managed to convince a Family Law attorney to actually read the bill. His initial reply to my action alert was that this law only applied to international abductions (original committee intent). I replied that the committee had changed their scope and ths bill now applied to instate and interstate cases. He reread the bill and agreed to testify on short notice. Here is an exerpt from his testimony: Links to the testimony: * http://house.louisiana.gov/Agendas_2007/May_07/0524_07_CL.pdf Agenda for the Louisiana hearing] * http://house.louisiana.gov/rmarchive/Ram/RamMay07/0524_07_CLP.ram First house committee hearing on the bill. Testimony starts at 2:24 to 3:04]

I hope I have attached the correct two documents from the New Jersey review of the UCAPA law. There should be an intermediate document and a final document. If not, please contact the New Jersey commission for a copy of their reports. The New Jersey commission declined to go forward with this law after they read it closely.

I think we also stopped passage of this bill in Texas. Their bill had sailed through the House committee, house and Senate committee without much review. It was on the calendar for non-controversial passage when it suddenly stops.

Similarly I think we stopped the passage of this law in Michigan after notifying family groups and the ACLU there.

The only states (7) that this bill has passed in have been states that have not reviewed the law closely. If you review their legislative records, you can see that there were no serious discussions about the ramifications of this law.

It is all very well and good to be against child abduction. None of us are for that. None of us want to hear of a child taken to Saudi Arabia or Russia, and denied contact with his or her other parent (and extended family on that side) for life.

But this law, as written, will do far more harm than good.

Of particular concern is the authorization of the judge and the police to seize children in the dead of night from a parents home on the basis of an EX-PARTE order by a divorcing party. An act that is very harmfull to the children. At its least it may traumatize them for life; At its worst, in may cause their deaths.

Sincerely yours,

Nicholas James President, LaDads www.ladads.info UCAPA links on our site: http://ladads.info/modules/newbb/viewforum.php?forum=32

New Jersey Law Commissions review of this same legislation. VI. A warrant to take physical custody of a child, issued by this state or another state, is enforceable throughout this state. If the court finds that a less intrusive remedy will not be effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances, the court may authorize law enforcement officers to make a forcible entry at any hour.

I. If a petition under this chapter contains allegations, and the court finds that there is a credible risk that the child is imminently likely to be wrongfully removed, the court may issue an ex parte warrant to take physical custody of the child. Ordinary life activities: Requried parenting duties: Natural family circumstances: ===== Excerpt from Harold Murry Family Law Attorney, Alexandria ===== Quote: Murry: Hello, My name is Harold Murry, I am a family law attorney in Alexandria, I am also on the Supreme Courts domestic violence along with Anne Styre, who is a friend of mine, who I believe is speaking in favor of the bill. My problem with this bill, is I think it started out as a really good idea, if you go look at the web site, you see that it started out as the Uniform International Child Abduction prevention act. Because that is a huge problem, I have had cases where the father of the kid for instance is an exchange student from Jordan or he is a merchant from Pakistan and the people split and he is not going to get custody, he takes the kids to that country, and all we can do is write a couple of letters to the consulate, the mom never sees them again, there is no way to get them back. and that is why there is so much in this about the Hague treaty on child abduction, whether or not somebody is from one of these countries where you can take kids and never get them back. At some point, I think in August of 2004, somebody appended some additional language to this, to make this solve all problems, and they took the International, the word international out and they added this thing that if you are from another state or have strong cultural ties to another state, that you are suspect, just like somebody who is from another country and really has the ability to do this sort of thing. I tell my clients, there are always these threats that well, I am going to take the kid, no I am going to take the kid and you'll be darned if you see him again. I say, let him take the kid to Mississippi, we will have the kid back in two weeks and the judge will put him in jail. I'd love it. Don't worry about it. We have all the laws we need. We have the Uniform Child Custody Jurisdiction Enforcement Act; We have the Parental Kidnapping Prevention Act - which is the federal statute to prevent children from being snatched from State to State. They talk about strong cultural ties to another State should make you suspect. Well, I can't imagine them saying that somebody in Nebraska has cultural ties to Kansas that are suspect, they don't even have culture. I mean, its all the same, they are from the mid-west. (audience laughter) I mean, I think it is going to be used against Cajuns or something, I don't know. If you live in Houston and you have LSU season tickets you are suspect. This should be, we need to send a message back to the committee to fix this thing back the way it was, to strike out the provisions that are just pasted in there where it says things like from another country or state, that that should be taken out and it should be an International act. We need this protection, but this is going to be abused, I mean, lawyers love ex-parte custody orders. When I started practicing in '85 that was part of your stock in trade, if you could get your party ex-parte custody before the hearing came up a month later, your phone did not ring, the other attorney's phone would ring. We went to a lot of trouble, you guys passed Code of Civil Procedure Article 3945 a few years ago making it extremely difficult to come in and get temporary custody, you had to show immediate irreparable harm. And this has these factors like um, has previously abducted or attempted to abduct that could be taking the kid on a day when it wasn't your day. There is all sorts of things, Ms. Bowler is absolutely right, there is no number, what if you just meet two of them, I mean you don't have to meet them all, they terminate a lease, all of the things that happen when you are going through a divorce are present here. 458-E:6 I (5) Obtaining 'travel documents' (read that definition!) for their child to go to Disney World, or a football game in another state, or even a weekend at the beach?

458-E:6 I (1) Becoming unemployed during the current recession? (aka 'Abandonding employment to a divorce attorney)

458-E:6 I (2) Selling a house or terminating a lease (car or house !). (Note: These are activities ALL New Orleans residents engaged in after Katrina)

458-E:6 I (4) Closing a bank account. (Note: Just what exactly is an 'unusual financial activity'?)

458-E:6 I (6) Picking up their child's medical records. (Note: This law applies to CUSTODIAL as well as NONCUSTODIAL parents)

458-E:6 I (6) Picking up their child's school records. (Note: This law applies to CUSTODIAL as well as NONCUSTODIAL parents)

458-E:6 I (6) Picking up their child's birth certificate (Note: This law applies to CUSTODIAL as well as NONCUSTODIAL parents) Deconstruct the meaning of these two lines in the law: So how does any ordinary good parent avoid triggering these two aspects of the law? How many relatives do they need to have living in your state to meet the 'strong family connections to NH'? One, five, fifty? How much money do they have to have to meet the financial aspect of having a 'strong financial connection' to your state? $10,000? $100,000? $1,000,000 How on earth do they meet the 'emotional' connection to NH? Just what on earth does that mean? Do they have to cry for your state football team? If they don't are they a potential child abductor? And what is up with the 'cultural' connection? What do they need for a strong cultural connection in your state? Does that mean they can not be in a distinct minority community? Now just in case you missed any Americans with the first part, now they must also meet the reverse test. Having 'strong' family ties to another state is grounds for being considered a 'child abductor'? How many sisters, brothers, aunts, uncles, or grandparents do we need living in another state to fall prey to this aspect of your law? In Wallet v. Caulfield - Louisiana First Circuit court of appeals overturned a loopy judge who thought that a man who had a sister who lived in Brazil was sufficient grounds that to declare him an international flight risk. The appeals court would have put the flight bond on the mother or on both parents - who had a pattern and practice of moving away from the dad (3 times). By the way, 'child abduction' is a FELONY - so you will be having the state courts in CIVIL court labeling people as 'potential felons'. THIS IS NOT GOOD. So perhaps the parent's families all live in your state. They are still not safe. What about those 'financial' ties to another state? Better not own any vacation property in another state. And what about the emotional ties to another state? What does that mean? Can you not be a fan of a football team in another state? I guess not. And what about those infamous 'cultural ties'? What on earth does that mean. How big a cultural community from your roots must exist in another state before good parents fall prey to this aspect of this horrendous law? Rep. Bowler Quote: "My reluctance with the bill, and it is with all due respect to this group of people, who got together and decided this was a good idea is that it does something, it departs from what I think is a real important concept in America and that is you are innocent until proven guilty, and this actually causes you to be penalized by a court for something they think you might do. I think that is a real departure in thinking in America to do that. I would hope that we would send this back to that group of Uniform lawmakers that come up with these models, say lets rethink this and I would hope that we don't pass it.

(f) Lacks strong familial, financial, emotional, or cultural ties to the state or the United States. (g) Has strong familial, financial, emotional, or cultural ties to another state or country.

Its not that I don't think the problem is serious enough to... In Louisiana we have in our statutes, which I think operates as a huge deterrent, is under our simple kidnapping law, we say that, "the intentional taking, enticing, or decoying and removing from the state by any parent his or her child from whom custody has been... blah, blah blah ... it creates within ... this bill is trying to address, we create in the definition of simple kidnapping and actually threaten somebody with a fine of $5,000, imprisonment for five years or both. I think that provides a real discouragement from any person in Louisiana doing what this bill seeks to prevent. Do we know how often this happens in Louisiana that we need to go to these extraordinary measure?" I think it had the potential to be a very great act, but it is now extremely flawed by adding the business about the state, being from another state will trigger these incredible sanctions against you. I don't know if it is appropriate to amend a Uniform Act its been done before because I remember the UCCJA when it was first passed, there were a couple of states with asterisk's by their name because they had taken some provisions out of it. {Rep Walker sits down} I think probably the best is to just not pass it, but if you do pass it you can.


TOPICS: Activism/Chapters; Politics/Elections; US: Pennsylvania
KEYWORDS: childabduction; pennsylvania; sb1449; ucapa
HELP NEEDED in Pennsylvania.

Once more into the breach my friends, once more.

The New Jersey Law Commissions review on why this law is a bad law (same law, different state) is here:

http://ladads.info/modules/newbb/viewtopic.php?viewmode=flat&type=&topic_id=1606&forum=32

This link provides the three reports that they issues.

{cut and paste view of the rest of the message, so it may lose formating}

"New Jersey review of Uniform Child Abduction Prevention Act.

The first document dated May 5, 2008. It is from the New Jersey Law Revision Commission Staff to the Commission for their May 15, 2008 meeting.

At this stage, the New Jersey staff were recommending passage of the law:

Quote:

Although based on what we have thus far learned we believe the UCAPA should be recommended for adoption with minor modifications, we are awaiting feedback from the Family Law Executive Committee of the New Jersey Bar Association, also now considering whether to recommend this uniform law for adoption.

On page 4 of this report, they address the issue raised above and deem it handled sufficiently.

Quote:

One area identified by commentators as a potential area for abuse is a provision permitting a court to issue an ex parte warrant to take physical custody of the child if that court finds a credible risk that the child is imminently likely to be wrongfully removed. The UCAPA, however, provides that the respondent on a petition must be afforded the opportunity to be heard at the earliest possible time after the issuance of the ex parte warrant, but not later than the next judicial day or the first judicial day next possible. This should address any concern for abuse of the ex parte mechanism but the potential for harassment is ever present and the concern is a legitimate and serious one.

On page 5, the staff says that the family law practitioners are satisfied with the law.

Quote:

Fortunately, we have been able to obtain very constructive feedback from family law practitioners with suggested modifications to the UCAPA. These minor modifications reflect the nuances of New Jersey practice. We anticipate feedback from the Family Law Executive Committee of the Bar Association within days and will report to the Commission at its May meeting regarding any additional feedback.

And they summarize why it should be passed on page 5:

Quote:

CONCLUSION

The UCAPA appears to supplement and improve existing legislation and treaties. New Jersey has already adopted the UCCJEA (after this Commission’s recommendation) and adoption of the UCAPA should enhance our State’s ability to prevent child abduction. In 2007, the American Bar Association approved the UCAPA as “appropriate” for adoption in all states. However, lawyers in the field have made constructive suggestions that make sense and should also be incorporated in a New Jersey version of the uniform law. We also anticipate critical feedback from the Family Law Committee of the New Jersey State Bar Association. We therefore propose the adoption of the UCAPA with minor modifications as set forth below pending feedback from the State Bar. (For purposes of comparison, we set out the uniform law first and the modified version suggested for adoption in New Jersey thereafter.)

In the May 15, 1008 meeting they say this (page 4 of 5)

Quote:

Uniform Child Abduction Prevention Act

Marna Brown explained that she had just learned that the Chairperson-Elect of the Family Law Committee of the State Bar Association had decided to form a subcommittee to examine this legislation in more detail. She indicated that the sub-committee has not yet been formed. The Commission decided to wait until next month to see if the sub-committee has been formed and if there is someone that the Commission can contact regarding this project.

Minutes for July 17 2008.

Quote:

Uniform Child Abduction Prevention Act

Ms. Brown advised the Commission that she has heard nothing from the Family Law Executive Committee of the New Jersey State Bar Association about whether a subcommittee to address this uniform law had been formed as earlier indicated. In the absence of any information in that regard, Chairman Gagliardi advised that Staff should proceed with its analysis of the uniform law. Mr. Cannel advised that he was having a telephone conference with the New Jersey delegation to NCCUSL on the day after the meeting and would advise them of the status of this and other uniform law projects.

The next document is dated November 10, 2008. It is from the New Jersey Law Revision Commission staff to the Law Commission for their November 20, 2008 meeting.

On page 4, they respond to my email regarding our concerns with UCAPA.

Quote:

Concerns Regarding Adoption of the UCAPA

Criticism of the UCAPA was expressed during the legislative hearings conducted in Louisiana after objection to its adoption was raised by a Louisiana organization of divorced fathers called “LaDads”. As a result, the Louisiana version of the UCAPA was modified in a few, significant respects. Some of the concerns raised in those legislative hearings as well as other issues raised by careful review of the language of the Uniform Law itself are worthy of consideration and therefore discussed below:

So lets see what issues resonated with them that they felt compelled to give an answer to:

Quote:

1. Whether the UCAPA Should Address Only International Abductions (as was its original intent)

One concern is that the Uniform Law, initially drafted to prevent the huge problem of international child abductions to those countries either not signatories of the Hague Treaty or non-complying signatories, should not have been expanded to include domestic abductions. In 2007, relying upon legislative hearing testimony that sufficient laws existed to address intrastate abductions and that certain risk factors for abduction made sense only in an international context, Louisiana adopted a version of the UCAPA that applies exclusively to international adoptions. Other states have adopted similar laws to apply solely to international abductions. Arkansas, for example, as already noted, enacted its own International Child Abduction Prevention Act in 2005. Texas and Oregon, as earlier mentioned, also enacted provisions applying solely to international abductions.

New Jersey family law practitioners have not expressed the view that the Uniform Law should apply solely to international abductions. To the contrary, the view seems to be that application to both international and domestic abductions will bridge the gap that exists between current federal and state laws.

Quote:

2. Factors to Determine Risk of Abduction.

Section 7 of the Uniform Law directs that the court shall consider evidence of a long list of factors in determining whether a credible risk of abduction of a child exists.

Some of these factors, however, do not in and of themselves display evidence of such a risk. For example, as was urged in Louisiana, obtaining a child’s school records or birth certificate could be a simple exercise of parental responsibility rather than evidence of an abduction about to take place. As a result, Louisiana’s version of the UCAPA requires that the evidence of the risks factors for abduction be considered in their totality rather than singly.

Others argue that because certain risk factors are vague and ambiguous, the entire group of factors to be considered should perhaps be regrouped and prioritized into those factors that require immediate action and those that are merely contributing but not dispositive of abduction. These concerns are addressed in the proposed modifications set forth beginning on page 6 of this memo.

Quote:

3. Provisions and Measures to Prevent Abduction.

Section 8 includes measures to prevent abduction that some view as taking away fundamental liberties. An example is the possible restriction on passports and other travel controls. These same critics also believe that the Uniform Law, as drafted, eliminates the presumption of innocence that even alleged criminal offenders now enjoy.

As Louisiana Representative Shirley Bowler put it in her testimony on the issue, the bill “departs from what I think is a real important concept in America and that is you are innocent until proven guilty, and this actually causes you to be penalized by a court for something [the court] thinks you might do.”

She also referred to Louisiana’s kidnapping law as a real deterrent to the kinds of abductions that the Uniform Law sought to prevent.

Staff believes the very nature of the risk of abduction and threat of harm to a child will at times require such restrictive measures. The UCAPA imposes sufficient requirements upon courts when drafting protective orders to address such concerns

Quote:

4. Warrant to Take Physical Custody of Child.

Section 9 permits a court to issue an ex parte warrant to take physical custody of the child if that court finds a credible risk that the child is imminently likely to be wrongfully removed. Some characterize the ex parte mechanism as a potential weapon for abuse of one spouse by the other and the potential problems are significant.

Section 9 provides that the respondent, upon petition, must be afforded the opportunity to be heard within the next judicial day “unless a hearing on that date is impossible”, in which event “the court shall hold the hearing on the first judicial day possible”. This time frame may not be immediate enough. In addition, the opportunity for the hearing exists only if the respondent petitions for a hearing, and the warrant may be issued even without a hearing. Proposed modification to this section attempts to address these concerns.

Equally troubling, however, is language in Section 9 requiring that the warrant specifically direct “law enforcement officers to take physical custody of the child immediately” and “provide for the safe interim placement of the child pending further order of the court”. Although the obviously well-meaning intention of this directive mirrors language in the UCCJEA (see §2A:34-85), thrusting a very young child whose parent is the abductor into the hands of even the most concerned law enforcement officer seems more traumatic than protective. Perhaps the better alternative, in keeping with the “best interests of the child” standard, would be the immediate placement of the child with the other parent, another adult relative or a guardian appointed for this purpose.

Finally their conclusion - page 6:

Quote:

Conclusion

Staff is inclined to recommend the enactment of the UCAPA, but with modifications, especially to sections 7, 8 and 9 of the Official Text, as set forth below. Only with these modifications will the UCAPA fairly supplement and improve existing legislation and treaties and effectively enhance our State’s ability to prevent child abduction.

Staff also believes that more feedback is necessary from family law attorneys and others involved with the protection of children before any Commission recommendation is made to the Legislature.

From the November 12 2008 Minutes

Quote:

Uniform Child Abduction Act

Commissioner Pressler said that there was no power provided by the Uniform Act that Chancery judges do not now have and exercise. She moved to conclude the project without recommending its enactment. Professor Garland seconded the motion. In order to adhere to Commission procedure in these matters, Chairman Gagliardi asked that the standard final report be prepared for the December meeting stating that the Commission was recommending no action on this uniform law. Commissioner Burstein asked that NCCUSL be contacted to determine its reaction before the next meeting.

December 18, 2008 meeting minutes

Quote:

Uniform Child Abduction Prevention Act

Commissioner Gagliardi said that this project had been discussed at the November meeting and, at that meeting, the Commission directed Staff to prepare a final report recommending that the Uniform Law not be adopted. That draft final report was reviewed by the Commission. Professor Bell moved to release the final report, which was seconded by Professor Garland. The report regarding the Uniform Child Abduction Prevention Act was released as a Final Report.

Final Report

Quote:

STATE OF NEW JERSEY

N J L R C

NEW JERSEY LAW REVISION COMMISSION

FINAL REPORT Relating to UNIFORM CHILD ABDUCTION PREVENTION ACT

December 2008

John M. Cannel, Esq., Executive Director NEW JERSEY LAW REVISION COMMISSION 153 Halsey Street, 7th Fl., Box 47016 Newark, New Jersey 07101 973-648-4575 (Fax) 973-648-3123 Email: njlrc@njlrc.org Web site: http://www.njlrc.org

Quote:

Introduction

In July of 2006, the National Conference of Commissioners on Uniform State Laws (NCCUSL) approved and recommended for enactment, the Uniform Child Abduction Prevention Act (UCAPA). Since then, the UCAPA has been enacted in only seven states: Nebraska, Utah, Kansas, South Dakota, Nevada, Colorado, and Louisiana, although bills incorporating some or all of the UCAPA are pending in at least ten more jurisdictions.1 The UCAPA’s stated purpose is to provide a mechanism for a court to impose child abduction prevention measures at any time, thereby deterring and preventing domestic and international abductions. Child abduction is defined as “wrongful removal” or “wrongful retention” of an unemancipated minor. The UCAPA was created to complement and enhance existing law, such as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the Parental Kidnapping Prevention Act (PKPA), and, with regard to international abduction, the Hague Convention on the Civil Aspects of International Child Abduction. As noted in the preface to the Original Text, the UCAPA is “premised on the general principle that preventing abduction is in a child’s best interests.”

Summary of Provisions of the UCAPA

The “Definitions” section of the UCAPA tracks as much as possible that of the UCCJEA. The UCAPA permits a court, on its own motion, to order abduction prevention measures if the court finds the evidence establishes a credible risk of abduction of the child. It also permits a party or anyone with the rights to seek a child-custody determination, to file a verified petition, in the court having jurisdiction to make a child custodial determination with respect to that child, for an order protecting the child from abduction. Provision exists for temporary emergency jurisdiction, in accordance with the UCCJEA, if the court finds a credible risk of abduction and for the prosecutor, or public authority with the power under the relevant state law, to seek a warrant to take physical custody of a child or other appropriate prevention measures.

In determining whether there is a credible risk of abduction of a child, the court may consider any one or more risk factors, including whether the petitioner or respondent has threatened to abduct the child, engaged in activities that may indicate a planned abduction (such as selling the primary residence, terminating a lease, abandoning employment), or engaged in domestic violence, stalking or child abuse. Petitioners may offer evidence of conduct not expressly mentioned in the UCAPA and courts are required to consider evidence regarding both the petitioner and the respondent when making

--------------------------

1 Louisiana’s version of the Uniform Law, though modeled on the UCAPA, is also restricted to international abductions. A few states such as Arkansas, California, Oregon and Texas address child abduction prevention in legislation pre-dating the completion of the UCAPA, although Texas is now considering adoption of the UCAPA. Other federal legislation also addresses other aspects of the problems encountered with missing and abducted children.

Uniform Child Abduction Prevention Act FR12/22/08

2

Quote:

determinations of the risks of abduction. However, the UCAPA does not discuss the weight the evidence is to be given.

The remainder of the UCAPA addresses the mechanics of the procedures to be implemented (duration of court orders, etc.), and the actual provisions required to be included in the court order. The measures and conditions a court may impose to prevent child abduction are within the discretion of the court so long as due consideration is given to custody and visitation rights of the parties, and the court considers the age of the child; potential harm to the child from the abduction; legal and practical difficulties of returning the child to the jurisdiction; and reasons for the potential abduction, including evidence of domestic violence, stalking, child abuse or neglect.

Concerns Regarding Adoption of the UCAPA

Criticism of the UCAPA has been expressed during the legislative hearings in states that considered its enactment. As a result, the versions of UCAPA enacted have been modified in significant respects. Some of the concerns raised in those legislative hearings as well as other concerns raised by careful review of the proposed Uniform Law are discussed briefly below. One concern is that the initial draft, which sought to prevent the huge problem of international child abductions to those countries either not signatories of the Hague Treaty or non-complying signatories, should not have been expanded to include domestic abductions. Louisiana adopted a version of the UCAPA that applies exclusively to international adoptions. Other states have adopted similar laws.

Another concern is that some of the factors that the court may consider to determine whether a credible risk of abduction of a child exists, do not in and of themselves display evidence of such a risk. For example, obtaining a child’s school records or birth certificate could be a simple exercise of parental responsibility rather than evidence of an abduction about to take place. Others argue that because certain risk factors are vague or ambiguous, all risk factors should be regrouped and prioritized into those factors that require immediate action and those that are merely contributing but not dispositive of abduction.

Section 8 includes measures to prevent abduction that some view as taking away fundamental liberties (such as the right to travel) and eliminating the presumption of innocence that even alleged criminal offenders now enjoy. Section 9 permits a court to issue an ex parte warrant to take physical custody of the child if that court finds a credible risk that the child is imminently likely to be wrongfully removed. Some characterize the ex parte mechanism as a potential weapon for abuse of one spouse by the other. The opportunity for a hearing exists only if the respondent petitions for a hearing, the time frame for such a hearing (within the next judicial day unless a hearing on that date is impossible, in which event the court shall hold the hearing on the first judicial day possible) may be insufficient, and the warrant may be issued even without a hearing. Equally troubling, however, is language in Section 9 requiring that the warrant

Uniform Child Abduction Prevention Act FR12/22/08

3

Quote:

specifically direct “law enforcement officers to take physical custody of the child immediately” and “provide for the safe interim placement of the child pending further order of the court”. Although this directive mirrors language in the UCCJEA (§2A:34-85), the trauma of thrusting a very young child whose parent is the abductor into the hands of even the most concerned law enforcement officer may outweigh the benefit contemplated by the proposed provision.

Commission Recommendation

The Commission has considered the UCAPA but does not recommend its adoption. The UCAPA does not provide authority beyond the current powers of New Jersey judges in custody matters. The Commission did not address deficiencies in the Uniform Law or possible modifications to sections 7, 8 and 9 of the Official Text to correct them, concluding that the UCAPA is not necessary in light of the broad powers of the New Jersey chancery courts.

The New Jersey Constitution provides for the establishment and jurisdiction of the New Jersey Superior Court (see Article 6, §3, ¶¶1 and 2) and for division of the Superior Court into three distinct sections, including a Chancery Division, “which shall include a family part.” (see Article 6, §3, ¶3.) N.J.S. 2A:34-23 permits a court:

Quote:

“to make such order as to the alimony or maintenance of the parties, and also as to the care, custody, education, and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall render fit, reasonable and just . . ..”

Invoking these constitutional and statutory provisions, New Jersey courts have adopted the “best interests” standard in determining the needs and welfare of children in the State. See Mayer v. Mayer, 150 N.J. Super. 556, 562 (Ch. Div. 1977) (court has broad discretion in dealing with custody of the child while being aware that the welfare and happiness of the child is the controlling consideration.)

New Jersey courts exercise broad powers when the disputed issues concern children. See Paterno v. Paterno, 254 N.J. Super. 190, 193 (Ch. Div. 1991) (“Nowhere are the equitable powers of the Chancery Division more crucial than in the realm of child custody and visitation in post-matrimonial actions.”) See also Vannucchi v. Vannucchi, 113 N.J. Super. 40 (App. Div. 1971), certification denied, 58 N.J. 163 (1971) (chancery division has authority under parens patriae jurisdiction to regulate custody which authority, firmly established in our jurisprudence, has its origin in the protection that is due to the incapacitated or helpless); and Brown v. Parsons, 136 N.J. Eq. 493 (E. & A. 1945) (chancery court’s authority is so broad that where the welfare of the child so requires, permanent custody may be fixed even disregarding the legal rights of parents.)

Uniform Child Abduction Prevention Act FR12/22/08

4

1 posted on 05/09/2012 1:05:10 PM PDT by Pikachu_Dad
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To: Pikachu_Dad

(from the Wiki. These are the states this law has been beaten in already. http://en.wikipedia.org/wiki/Uniform_Child_Abduction_Prevention_Act)

Declinees

The first seven states to hear the UCAPA legislation passed the law with unanimous votes. The UCAPA legislation has failed in most states since the Louisiana review in 2007.

The most significant[says who?] declination was in New Jersey. The New Jersey law commission was reviewing the UCAPA legislation. Their New Jersey Law Commission was recommending that the law be presented to their legislature for passage and had placed their recommendation on the Internet for public comment. LaDads saw this request and provided them the concerns that they had raised in Louisiana. The New Jersey law commission then issued a report (2008, see link below) highlighting the issues that were raised that they were most concerned with. After a full review, they then issued a final report summarizing the serious issues with this legislation. They declined to recommend this legislation to their legislature.

Since Louisiana, the UCAPA law has only passed in states that were not informed of the Louisiana and New Jersey reports.
2007
Texas

The UCAPA law had passed through the House and Senate committee by unanimous votes. The law was on the Senate calendar for noncontroversial passage. The law never came up for a vote. However, despite it not being law in Texas, the Texas appeals court used the unpassed version of the law in its decision in the Sigmar case.[citation needed]
Connecticut

2007 SB 00595 was referred to the Joint Committee on Judiciary in 2007. No further action was taken after the public hearing before the Joint Committee on Judiciary on 3/1/07.[clarification needed]
Michigan

2007 HB 4925 by Jones, Hansen, Green, LaJoy was introduced on 6/19/2007 and referred to the House Committee on Judiciary. It did not pass out of committee.
Pennsylvania

HB 1546 was introduced on 6/18/07 and nothing further is reported; in 2009, HB 90 was passed by the House 193 to 0. It is pending in the Senate.
South Carolina

S 486 was referred to the Senate Judiciary Subcommittee on 3/1/07.[clarification needed] It never progressed beyond the committee. 2009 S 383 was reported favorably by the Judiciary on 3/11/2009, passed by the Senate on 3/24/2009, and referred to the House committee on judiciary 3/25/2009. It did not pass the House committee.
2008
New Jersey

The New Jersey law commission issued their final report on this bill in December 2008. The Commission considered the UCAPA but did not recommend its adoption. The report issued by the New Jersey law commission has been very helpful in defeating this legislation in other states that are considering the UCAPA legislation.
New Hampshire

HB1383 by Rep Merr Foose. The legislation passed through the house by unanimous vote. It was tabled by the New Hampshire Senate committee after receipt of the New Jersey report and the Louisiana concerns of Rep Bowler and Atty Harold Murry.
Idaho

2008 SB 1263 was passed by the Senate on 1/31/08 34-0-1. It did not get out of the House Committee.
2009
New Hampshire

HB694 was tabled in the Senate Committee on June 3, 2009.
Iowa

2009 HF713 was passed by the House 95 to 1 with 3 not voting on March 18, 2009. Referred to Judiciary. Subcommittee recommended passage March 19. Referred to full Judiciary committee. No further action.
Pennsylvania

HB90 by Conklin, Belfanti, O’Brien, Cohen, Kortz, Vulakovich, Youngblood, Donatucci, Brennan, True, Readshaw, Sipthroth, Longietti, Mahoney, Murt, Mann, Melio, Kirkland, Gibbons, freeman, Moul, Fabrizio, Sonney, Solobay, and K Smith. The bill was passed by the House Judiciary and Appropriations committees and voted for by the full house by a 193–0 vote. The legislation was tabled in the Senate Judiciary committee.
Washington

HB1182, by Goodman, Rodne, Miloscia, Williams, Ormsby, failed to move out of the House committee both in 2009 and 2010.
2010
Hawaii

SB2192/HB2250 by Tanaguchi/Karamatsu was introduced on January 20, 2010. It was referred to the HUS, JUD and FIN committees. On 2/1[clarification needed] the HUS committee recommended that it be passed with amendments. The votes were 7 to 0 with 2 excused. The JUD committee recommended it be passed on 2/9/2010[clarification needed] by a 12-0 vote. The FIN committee recommended that it be passed by 14 to 2 vote. The full house passed the legislation with Berg, Ching, Marumoto, McKelvey, Pine, Thielen and Ward voting no. The legislation was referred to the Senate JGO committee on 3/3/2010[clarification needed] where no further action was taken on the legislation.
Iowa

HF 713 Senate Judiciary. The legislation passed the full House on March 18, 2009 by a 95 to 0 vote. It was recommended for passage by the Senate committee on March 25, 2009. It was then referred back to committee on April 26, 2009. No further action was taken. In 2010, the committee report on March 4, 2010 without recommendation. In March 11, 2010 it was placed on the calendar for unfinished business.
Minnesota

SF410/HF1133 bill by Champion and Hayden was referred to the Public Safety Policy and Oversight committee. No further action was taken on this legislation.
Pennsylvania

HB90 by CONKLIN, BELFANTI, M. O’BRIEN, COHEN, KORTZ, VULAKOVICH, YOUNGBLOOD, DONATUCCI, BRENNAN, TRUE, READSHAW, SIPTROTH, LONGIETTI, MAHONEY, MURT, MANN, MELIO, KIRKLAND, GIBBONS, FREEMAN, MOUL, FABRIZIO, SONNEY, SOLOBAY, K. SMITH, THOMAS, PETRARCA and CALTAGIRONE. The bill was referred to the Judiciary committee and tabled on May 26, 2010.
South Carolina

SB383 by Hayes
Washington

HB1182 by Goodman, Rodne, Miloscia, Williams and Ormsby. The bill was introduced but did not progress.
2011
Rhode Island

HB5640 by O’Grady, Tanzi, Blazejewski, Guthrie, Carnevale on March 11, 2011
Pennsylvania

HB762 by Conklin
Virginia

HB1641 by Virginia
New Mexico

HB56 by Stewart
Texas

HB1207 by was filed on 2/9/2011[clarification needed] and referred to the Judiciary and Civil Jurisprudence committee. The bill was left pending in committee.


2 posted on 05/09/2012 1:07:17 PM PDT by Pikachu_Dad (Impeach Sen Quinn)
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To: Pikachu_Dad

Other states to be worried about this year. (Although I think it is already dead in these 4)

Legislative Tracking
2012 Introductions & Enactments
State Bill Sponsor Status
Michigan SB 743 Jones Introduced
New Mexico HB 15 Cervantes Introduced
North Carolina HB 684 Blust Introduced
Pennsylvania HB 2136 Kula Introduced

http://www.uniformlaws.org/Act.aspx?title=Child%20Abduction%20Prevention


3 posted on 05/09/2012 1:09:45 PM PDT by Pikachu_Dad (Impeach Sen Quinn)
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To: Pikachu_Dad

Sounds awfully vague and as pointed out, ought to apply only in case of alleged international abductions (e.g. Canada or Mexico into the USA).


4 posted on 05/09/2012 1:19:54 PM PDT by HiTech RedNeck (Mitt! You're going to have to try harder than that to be "severely conservative" my friend.)
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To: Pikachu_Dad

Something’s missing from the text, where it says it lists a group of specious reasons which is then followed by NOTHING.


5 posted on 05/09/2012 1:21:19 PM PDT by HiTech RedNeck (Mitt! You're going to have to try harder than that to be "severely conservative" my friend.)
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To: Pikachu_Dad

Just another example of why God hates divorce. People will not put several hours’ worth of time into premarital counseling or preparation classes; but then watch what happens when one of them wants to be unfaithful, use drugs, porn or alcohol in front of the children, etc. Lots of energy available on the back end.

Two words: long engagements.

Also: meet the parents, visit them at least monthy while dating and court for a long time before ever dreaming of having sex.


6 posted on 05/09/2012 1:32:11 PM PDT by Albion Wilde ("Real men are not threatened by strong women." -- Sarah Palin)
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To: Albion Wilde

There are so many superficial people today. What does the partner really think about the old fashioned kind of commitments in which marriage was centered? And about the desires of God, in which marriage promises between believers are rooted? It matters far less that you’re both interested in dogs, rock and roll, etc. than that you both believe marriage is rooted in a promise, not just between people but from God, that is fundamentally worth keeping.


7 posted on 05/09/2012 1:38:08 PM PDT by HiTech RedNeck (Mitt! You're going to have to try harder than that to be "severely conservative" my friend.)
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To: HiTech RedNeck

Amen!


8 posted on 05/09/2012 1:48:30 PM PDT by 100American (Knowledge is knowing how, Wisdom is knowing when)
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To: Pikachu_Dad

So much information and though I didn’t quite read all of it, I still don’t get the thrust of what this proposed law would do. Can you give me a short layman’s answer to what this law would do for or against a non custodial parent?

For instance; My son was married and divorced in Illinois, the mother was granted custody and promptly moved 300 miles away to Missouri. My son went back to court on 3 occasions to gain custody of his son. With evidence of child neglect/abuse by the mother, in addition to drug addiction by the mother. The mother was a no show on all 3 occasions, The judge granted custody to my son.

I went with him to Missouri and we couldn’t get a policeman to execute the Illinois court order. A second trip a week later and we met an older police Sargent, who looked at the order and said, “lets go get him” and that’s what we did. About a month later bio mom appeared in Illinois, got her free lawyer and got a different court order stating that Illinois courts had no jurisdiction in the previous order, thereby nullifying it and custody was returned to bio mom.

By the way, about 6 years later, when bio mom was in jail and my grandson and his half sister (not bio related to us) was in Mo. foster care, my wife and I made several trips to Missouri courts in an effort to gain custody ourselves. It was successful, with the judge ordering that a grand parent/ grand child relationship existed between us and our step grand daughter and we have had legal guardianship of both children for 4 years now and the final adoption hearing is Friday May 11th. I’ll be posting a vanity with pics when that happens.

Does any of what you posted have anything to do with my son’s or my situation?


9 posted on 05/09/2012 3:21:19 PM PDT by Graybeard58 (Romney vs. Obama? One of them has to lose, I'll rejoice in that fact, whichever it is.)
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To: Graybeard58
It was successful, with the judge ordering that a grand parent/ grand child relationship existed between us and our step grand daughter and we have had legal guardianship of both children for 4 years now and the final adoption hearing is Friday May 11th. I’ll be posting a vanity with pics when that happens.

That's awesome news, after all that heartache. Those children are SO very fortunate that you fought for them so long and hard.

10 posted on 05/09/2012 3:31:49 PM PDT by SuziQ
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To: Albion Wilde

“Two words: long engagements.

Also: meet the parents, visit them at least monthy while dating and court for a long time before ever dreaming of having sex.”

Awesome post. My future brother/sister in laws had about 200 years (combined) of marriage, with ZERO divorces. I knew my future wife would place a high value on marriage, if only to not be the spoiler.

...obviously with that record, she wasn’t born in the US (nor were her siblings).


11 posted on 05/09/2012 4:17:27 PM PDT by BobL
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To: Graybeard58

First of all, congratulations.

Q: Does any of what you posted have anything to do with my son’s or my situation?

A: Yes, this law has everything to do with your situations such as yours and your sons.

According to your post, Illinois has jurisdiction over your case. Fortunately, we stopped this legislation in Illinois in 2010. So until the Uniform Law people try again in Illinois you are temporarily safe from its potential negative effects.

Q: How do I enforcing an order in another State?

A: Congratulations on getting the policeman to enforce the order. On a technical basis, the police are not meant to enforce orders from outside the State. You should have first taken your order to the Missouri courts and registered the order with them. Then you can get the Missouri police to enforce the order.

Q: How might this law have been applied in your case if it had been enacted?

Well, you and your son traveled out of State to Missouri. Since you made ‘travel plans to another state’ - an unscrupulous lawyer (there are lots of them) could have claimed that you were a risk to abduct the children.

He could have gone before the judge on an ex-parte order on behalf of his client and asked for the judge to grant an order allowing the police (as in the Eliane Gonzales case) to take the children at 3:00 am on the grounds that you are a flight risk.

Given that you meet a risk factor - you only have to meet one on the list- you would have been found a ‘potential
child abductor’ by the court. The court would have then punished you by implementing any number of precautions to ensure you did not ‘abduct’ the children.

Such as limiting your access to the children.

Such as preventing you from traveling to any other state until you first register his court order with that state.

Such as requiring you to post a large bond to prevent your abducting the children.

etc. etc. etc.

It is a very nasty law.

On the flip side - you could have employed the exact same law against the other parent since she traveled from Missouri to Illinois.


12 posted on 05/09/2012 6:54:22 PM PDT by Pikachu_Dad (Impeach Sen Quinn)
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To: HiTech RedNeck

Oh bleep. How did that section get dropped?

Here ya go...

And the law authorizes such seizures by a disgruntled spouse for such specious reasons as:

Ordinary life activities:

458-E:6 I (5) Obtaining ‘travel documents’ (read that definition!) for their child to go to Disney World, or a football game in another state, or even a weekend at the beach?

458-E:6 I (1) Becoming unemployed during the current recession? (aka ‘Abandonding employment to a divorce attorney)

458-E:6 I (2) Selling a house or terminating a lease (car or house !). (Note: These are activities ALL New Orleans residents engaged in after Katrina)

458-E:6 I (4) Closing a bank account. (Note: Just what exactly is an ‘unusual financial activity’?)

Requried parenting duties:

458-E:6 I (6) Picking up their child’s medical records. (Note: This law applies to CUSTODIAL as well as NONCUSTODIAL parents)

458-E:6 I (6) Picking up their child’s school records. (Note: This law applies to CUSTODIAL as well as NONCUSTODIAL parents)

458-E:6 I (6) Picking up their child’s birth certificate (Note: This law applies to CUSTODIAL as well as NONCUSTODIAL parents)

Natural family circumstances:

Deconstruct the meaning of these two lines in the law:

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

(g) Has strong familial, financial, emotional, or cultural ties to another state or country.

So how does any ordinary good parent avoid triggering these two aspects of the law?

How many relatives do they need to have living in your state to meet the ‘strong family connections to NH’? One, five, fifty?

How much money do they have to have to meet the financial aspect of having a ‘strong financial connection’ to your state? $10,000? $100,000? $1,000,000

How on earth do they meet the ‘emotional’ connection to NH? Just what on earth does that mean? Do they have to cry for your state football team? If they don’t are they a potential child abductor?

And what is up with the ‘cultural’ connection? What do they need for a strong cultural connection in your state? Does that mean they can not be in a distinct minority community?

Now just in case you missed any Americans with the first part, now they must also meet the reverse test.

Having ‘strong’ family ties to another state is grounds for being considered a ‘child abductor’? How many sisters, brothers, aunts, uncles, or grandparents do we need living in another state to fall prey to this aspect of your law?

In Wallet v. Caulfield - Louisiana First Circuit court of appeals overturned a loopy judge who thought that a man who had a sister who lived in Brazil was sufficient grounds that to declare him an international flight risk. The appeals court would have put the flight bond on the mother or on both parents - who had a pattern and practice of moving away from the dad (3 times).

By the way, ‘child abduction’ is a FELONY - so you will be having the state courts in CIVIL court labeling people as ‘potential felons’. THIS IS NOT GOOD.

So perhaps the parent’s families all live in your state. They are still not safe. What about those ‘financial’ ties to another state? Better not own any vacation property in another state.

And what about the emotional ties to another state? What does that mean? Can you not be a fan of a football team in another state? I guess not.

And what about those infamous ‘cultural ties’? What on earth does that mean. How big a cultural community from your roots must exist in another state before good parents fall prey to this aspect of this horrendous law?


13 posted on 05/09/2012 7:56:23 PM PDT by Pikachu_Dad (Impeach Sen Quinn)
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To: BobL
My future brother/sister in laws had about 200 years (combined) of marriage, with ZERO divorces. I knew my future wife would place a high value on marriage, if only to not be the spoiler. ...obviously with that record, she wasn’t born in the US (nor were her siblings).

Congratulations on finding such a family! They do exist. Mine have been in the U.S. since the 1600s, with the latest immigrant in 1845. All members of the family tree married before having children; no divorces until the 60s generation. So sad. The destruction of family and Judeo-Christian values here has been a socialist plot carried out slowly, legally and deliberately.

14 posted on 05/11/2012 10:00:46 AM PDT by Albion Wilde ("Real men are not threatened by strong women." -- Sarah Palin)
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To: Graybeard58
Let's talk about your tagline OK? Surely you don't mean what it says do you?

As hard as it would be for me to tolerate Romney and his false version of Christianity in the American people's White House, Obama's false god Allah is just another persona that Satan hides behind to disguise his real identity. Although Romney's religion is certainly a problem for me, if I have to choose between him and his religion and Obama and his satanic Allah, and I do, I'll take Romney every time. At least followers of Romney's false religion don't slaughter people who won't accept it, but Allah's filthy hands are red with the dripping blood of tens of millions of men women and children who refused to accept his bloodthirsty rule over every aspect of their lives. Another 4 years of hosting his servant in our White House could and very likely will mean the end of any hope that Jesus Christ and His followers will ever be welcome in US federal government again.

God help us, but we Christians have to admit that we brought this on ourselves and our progeny by sitting on our hands while God was ushered out of our government. Many of us didn't even bother to vote because it was too much trouble or for some trivial matter such as the color of the better nominee's eyes. Several generations of Christians allowed Christianity to be driven out of our government by disciples of Satan, who has once again proven that he is the ultimate purveyor of lies and deceit.

15 posted on 05/15/2012 4:26:06 PM PDT by epow ( "It is when people forget God that tyrants forge their chains." Patrick Henry)
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