Update from the Drafting Committee on Non-Parental Child Custody and Visitation Act

The Drafting Committee for the Non-Parental Child Custody and Visitation Act has had two drafting meetings, the most recent in November 2015.  The draft act is scheduled for its first reading at the July 2016 Annual Meeting.  The act sets procedures and standards for non-parents to obtain custody and visitation of children.  Non-parents include partners of a parent who agree to raise a child with the parent, de facto parents, stepparents, grandparents, siblings, and others with an exceptionally close relationship with the child.  The act does not govern access to children who are the subject of abuse, neglect, or dependency proceedings, such as children in foster care.

The act balances the interests of the child, parents, and non-parents and is designed to be consistent with the U.S. Supreme Court’s opinion in Troxel v. Granville (2000).  Troxel struck down Washington State’s grandparent visitation statute, as applied, holding the trial court did not give sufficient deference to the decision of a fit parent to decide the amount of contact the children would have with the grandparents.

Among the provisions in the current draft of the act:  a presumption that parental decisions regarding custody and visitation are correct; a clear and convincing evidence burden of proof on non-parents seeking access to children; and a requirement that a non-parent show a detriment to the child if the relief requested is not granted.  The act lists factors the court must consider and contains added protections for victims of domestic violence.  De facto parents and persons who agreed to raise a child with the parent can be ordered to pay child support.  Other persons who obtain visitation can be ordered, at the court’s discretion, to pay the costs of facilitating visitation.

Update from the Drafting Committee on Non-Parental Child Custody and Visitation Act

Thanks for All You Do

This past weekend we ran our final drafting committee meetings of calendar year 2015 at the Palmer House Hotel in Chicago. There is still some work left in this year, including important Editorial Board meetings in December, but we have had a great ULC fall season and our projects seem to be on track for a productive Annual Meeting in Stowe.

The Palmer House was already decked out for the holidays, and the table at our Saturday luncheon meeting for committee and division chairs (which included the leadership of the Joint Editorial Boards for Trust and Estate Acts and International Law as well as the International Legal Developments Committee) looked like a Thanksgiving feast, although it featured chicken not turkey.

So this year, at our actual Thanksgiving celebration, my wife Becky and I will add our ULC family – Commissioners and staff alike – to our list of the blessings of this year for which we are grateful.

Thanks to each of you for all you have done and are doing to make the ULC a successful and important force to improve the law.

Rich

Richard T. Cassidy, President, ULC

Thanks for All You Do

Update on Family Law Arbitration Act Drafting Committee

The Family Law Arbitration Act Drafting Committee, now in its third year of drafting, remains enthusiastic about the project. The use of arbitration at divorce is on the rise across the U.S., but most states haven’t enacted legislation addressing the unique features of this form of dispute resolution in the family law context. We believe our timely project will fill a real need and will provide beneficial uniformity.

The Drafting Committee is well aware of the hostility that many people hold for “voluntary” binding arbitration when it is misused in consumer contracts, employment contracts, and other contracts of adhesion. Family law arbitration is a different creature altogether, with benefits that may be particularly valuable to disputants in family court: privacy, informality, speed, and the ability to select an expert decision-maker. In contrast to the criticism often aimed at commercial arbitration, there is no built-in bias favoring one party over another in family law arbitration. Still, arbitration does entail a waiver of the right to litigate one’s dispute in court. We need to ensure that any enforceable agreement to arbitrate a family law dispute is based on a truly voluntary and informed decision.

Three primary concerns emerged during the reading of the family law arbitration draft at the 2015 ULC Annual Meeting: the potential preemptive effect of the Federal Arbitration Act, particularly with respect to the draft’s imposition of special requirements on family law arbitration agreements; the resistance to arbitration of child custody and child support that exists in many states, through court decision or legislative enactment; and the failure of the draft at various points to track the Revised Uniform Arbitration Act. Over the course of our most recent drafting committee meeting in early November 2015, the Committee agreed on changes in the draft to address these concerns while also keeping our focus on the over-arching goal of producing an act that is enactable.

Because the general exclusion of pre-dispute arbitration agreements would pose preemption problems and would be inconsistent with existing state law on arbitration, we decided to confine the prohibition of pre-dispute arbitration agreements to agreements concerning custodial responsibility and child support. For purely financial disputes between parties, we concluded it was better policy to provide a mechanism for challenging pre-dispute agreements at the time of enforcement rather than barring such agreements altogether.

In addition, the Committee decided not to retain a list of caveats that would be required in every arbitration agreement but, instead, chose to reframe the caveats as factors that a court may consider in determining whether an arbitration agreement is informed and voluntary. As to child-related awards, we made changes in the draft’s provisions on judicial review of child custody and child support to adopt a formulation of the best interests standard that appears in several states’ arbitration laws. Among other revisions, we also reworded certain procedural sections to more closely conform the draft to the RUAA. We may provide a model family law arbitration agreement in the commentary, building on a new procedural rule and model agreement that the New Jersey courts recently promulgated.

The next drafting committee meeting is scheduled for March 18-19, 2016. We will finalize a new draft several weeks before that meeting date and will post it on the ULC website. We encourage commissioners who have comments or suggestions for the Committee to send them to the Reporter, Professor Linda Elrod, at linda.elrod@washburn.edu or to me at batwood@email.arizona.edu.

Barbara Atwood, Chair, Drafting Committee on Family Law Arbitration

Update on Family Law Arbitration Act Drafting Committee

Update from the Drafting Committee on Accuracy of Criminal Records

The drafting committee on the Accuracy of Criminal Records held its first drafting committee meeting in Falls Church, Virginia, Oct. 23-24. The drafting committee has been charged with drafting an act that seeks to improve the accuracy of criminal records. Many developments concerning criminal records have occurred over the past twenty years, including the creation of the National Criminal Background Check System in 1993, the establishment of criminal history repositories in all states, and the increasing use of criminal record checks in connection with eligibility for employment, professional and occupational licenses, credit worthiness, and other non-criminal justice purposes. Recent studies have demonstrated that criminal records accessed for these purposes may be inaccurate or incomplete.

The meeting was well attended, with numerous observers from groups representing industry and also those involved in criminal justice reform efforts. The committee met all day Friday and Saturday to discuss the draft act, beginning with the definitions and proceeding through the entire draft.

Committee members and observers were highly motivated and enthusiastically participated in the discussion. All participants focused on the substance and workability of the draft, suggested areas needing further development and research, and offered ideas for consideration.

The drafting committee will meet again in the spring of 2016, will have its first reading at the 2016 annual meeting, and is expected to have a final reading at the 2017 annual meeting.

The current draft of the Accuracy of Criminal Records Act is posted on the ULC website, and can be found here.

Robert J. Tennessen, Chair of the ULC Drafting Committee on Accuracy of Criminal Records

Update from the Drafting Committee on Accuracy of Criminal Records