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

The Non-Parental Child Custody and Visitation Act drafting committee met for a fifth time on March 24-25, 2017, in Washington, DC.  This was our second drafting meeting since the first reading last summer at the ULC Annual Meeting in Stowe, Vermont.  The committee continues to focus on concerns raised on the floor, and has decided to:  1) delete the concept of de facto parenting, and 2) limit the act to suits filed by non-parents who have either acted as “consistent caretakers” or have had “substantial contact with the child and denial of contact would present a detriment” to the child.  One of the committee’s primary challenges has been to provide a structure that would allow non-parents who have not had actual care, custody and control of a child to seek court-ordered access without violating Troxel.  We continue to make progress on these issues, and look forward to further comment from the floor this summer in San Diego.

Debra Lehrmann, Chair
Drafting Committee on Non-Parental Child Custody and Visitation Act

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

Update from the Drafting Committee to Amend UCC Articles 1, 3, and 9 in connection with a registry for electronic mortgage notes

The Committee met for a second time on March 24 and 25, 2017, in Washington, DC.  The Committee had before it a draft of federal National Mortgage Note Registry Act which would establish an electronic registry for notes secured by residential real property and a draft of proposed amendments to Articles 1,3 and 9 of the Uniform Commercial Code to modify the rules for negotiable instruments and secured transactions to accommodate electronic mortgage notes filed in the registry.

The current draft of the amendments provides for a number of changes to the Official Text of the Uniform Commercial Code:

Article 1

  • The term “holder” is to include a person who has submitted a negotiable or transferable record to the repository system that converts to an electronic mortgage note (EMN).

Article 3

  • The term “negotiable instrument” includes an EMN.
  • A transfer of an EMN in the records of the repository system is a “negotiation” and “indorsement”.  An indorsement other than a general one needs to be evidenced by the records of the repository operator.
  • The registrant in the repository system is the person entitled to enforce the instrument.
  • A record of discharge in the repository system is a notice is discharge for holder in due course status.
  • If the legacy submission to the repository system was not a negotiable instrument or transferrable record, there can be no holder in due course of the EMN.
  • A record of an EMN certified by the repository system showing the plaintiff as the registrant evidences the plaintiff’s right to enforce the EMN.
  • An instrument converted to an EMN and later destroyed under the system rules is not a lost or destroyed note for purposes of 3-309 and does not discharge the obligor.
  • No presentment or notice of dishonor is required for the EMN.

Article 8

  • An EMN is not a security but may be a financial asset if held in a securities account.

Article 9

  • An EMN is located in DC for purposes of the Article 9 choice-of-law rules.
  • New 9-313A gives a secured party who is a “registrant” or an “authorized  transferor” of an EMN (with the registrant waiving the right to transfer the EMN)  “possession” of the EMN  for purposes of Article 9 with the same priority as possession of a paper negotiable instrument.

The meeting was attended by a number of observers including representatives from the Federal Reserve Bank of New York who are drafting the federal statute.  We had a good discussion on a number of issues and expect to have revised drafts of the federal statute and the amendments available for an initial reading of the amendments at the Annual Meeting this summer in San Diego, California.

Edwin E. Smith
Chair, Committee to Amend Uniform Commercial Code Articles 1, 3 and 9


Update from the Drafting Committee to Amend UCC Articles 1, 3, and 9 in connection with a registry for electronic mortgage notes

Update from the Drafting Committee to Revise the Uniform Parentage Act

The Uniform Parentage Act (UPA) Drafting Committee has been hard at work since the last annual meeting on revising the UPA to integrate same-sex couples into the act; to update the act’s surrogacy provisions; and to provide children of assisted reproduction with a right to information about their genetic heritage.  Since the annual meeting, the ULC Executive Committee has expanded our committee’s scope to revise the act (rather than merely amending it) and to include the concept of “de facto” parentage in the act.

Our committee was structured to include current or former legislators from Washington, Idaho, Nevada, Minnesota, and Colorado and significant political diversity.  We have also benefited from a large and engaged group of observers.  We agreed early on that our objective should be to create an act that can be widely adopted.  We held in-person meetings in Minneapolis on October 28-29, 2016, and in Seattle on March 10-11, 2017, to read and review proposed changes to the entire act.  In addition, we held six telephone meetings focused on several thorny issues in the act as follows:

  • September 14: in light of concerns at the annual meeting about including “de facto” parents in the Non-Parental Child Custody and Visitation Act, we discussed taking the approach of many states to treat people who meet listed criteria to be established as full legal parents.
  • November 16: we discussed the appropriate distinctions between gestational and genetic surrogacy.
  • December 20: after consultation with federal child support enforcement authorities, we broadened the current acknowledgement of paternity process to provide a streamlined means for some same-sex couples to establish parentage through an acknowledgement.
  • January 23: we worked on specific language for “de facto” parentage concept and agreed that the act should provide alternatives for states either to limit the maximum number of legal parents to two or to establish more than two parents in extraordinary circumstances.
  • February 7: we discussed the effect of noncompliant surrogacy agreements and whether gestational and genetic surrogacy agreements should be treated differently.
  • March 29: we re-read language regarding genetic testing, the adjudication process, and assisted reproduction that had been the subject of substantial revisions at our in-person meeting earlier in the month.

We are hopeful that the act will be ready for its final reading this summer in San Diego and look forward to your comments and questions!

Jamie Pedersen
Chair, Drafting Committee to Revise the Uniform Parentage Act

Update from the Drafting Committee to Revise the Uniform Parentage Act

Update from the Model Veterans Court Act

The Model Veterans Court Act Drafting Committee held its fourth and final meeting in Chicago on March 3-4, 2017. The agenda was to review in detail the policy decisions made in earlier meetings and to refine the draft for the final reading at the Annual Meeting in San Diego, CA in July, 2017. Several stylistic and re-ordering changes of the act were made, but no substantive changes were made. We had several observers from groups that work to train individuals or work to promote veterans courts in our country. Near the end of the meeting, all observers indicated full support for our act.  One change made at our last meeting was to have the act presented in a form for both enactment by legislation or by court rule.

This has been a remarkable drafting committee and has been unanimous in its support for veterans courts and the effort to draft the very best act possible. Our observers were of immense help in having the draft reflect the best thinking and practices of these courts. We await the Executive Committee’s decision to rename the act as the Model Veterans Treatment Court Act.

Harry L Tindall, Chair, Model Veterans Court Act Drafting Committee

Update from the Model Veterans Court Act

Report from the ULC Midyear Meeting

Members of the ULC Scope and Program and Executive Committees participated in the 2016 ULC Midyear Meeting, conducted at Amelia Island, Florida.

At the meeting, two new drafting committees, three new study committees and a new monitoring committee, were authorized.

Acting on the recommendations of the Standing Committee on the Uniform Commercial Code and the Permanent Editorial Board for the Uniform Commercial Code, Scope and Program recommended, and the Executive Committee authorized, the appointment of a drafting committee to develop amendments to Article 3 of the UCC with conforming amendments to Articles 1 and 9, to provide the substantive commercial law rules required to support a national electronic registry for mortgage notes. The American Law Institute, the ULC’s partner in drafting the UCC, has also agreed to proceed with this drafting project.

The work of this drafting committee will need to be very closely coordinated with the work of the existing drafting committee on Electronic Registry for Residential Mortgage Notes. I am exploring whether the drafting should have separate, overlapping or identical membership. We also need to coordinate our effort with our UCC partner, the American Law Institute.

The second drafting committee, approved conditionally, is intended to harmonize the law of Caribbean Nations and the U.S. on the Enforcement of Child Custody and Support Orders. The conditions of the approval are that a sufficient number of Caribbean nations demonstrate commitment to the project and that external funding be identified to support the project.

The new study committees all have technology connections. They include a committee to study the feasibility of state legislation on identity management in electronic commerce, one to study the need and feasibility of state legislation relating to event data recorders in cars, and a committee to study legislation concerning the trust management of donated funds to individuals and families, in particular through crowd funding.

A new monitoring committee was authorized to cover the subject of Criminal Justice reform. This Committee will be charged with staying aware of efforts to improve and reform state criminal justice systems and where appropriate, recommend model or uniform law projects.

Other action includes expanding the charge of the Drafting Committee on Wage Garnishment to extend the protections of the Act to include earnings deposited in bank accounts.

The Executive Committee referred proposed technical corrections and crowdfunding provisions from the federal JOBS (Jumpstart our Business Startups) Act to the Reporter or Chair of the Uniform Securities Act to consider whether to recommend amendment of the Act to the Executive Committee under Section 4.3(b)(3) of the Constitution.


Richard T. Cassidy, President, ULC


Report from the ULC Midyear Meeting

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

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