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UCCJEA Laws

Code of Ethics
of the National Association of Social Workers

Approved by the 1996 NASW Delegate Assembly and revised by the 2008 NASW Delegate Assembly

The 2008 NASW Delegate Assembly approved the following revisions to the NASW Code of Ethics:

1.05 Cultural Competence and Social Diversity

(c) Social workers should obtain education about and seek to understand the nature of social diversity and oppression with respect to race, ethnicity, national origin, color, sex, sexual orientation, gender identity or expression, age, marital status, political belief, religion, immigration status, and mental or physical disability.

2.01 Respect

(a) Social workers should treat colleagues with respect and should represent accurately and fairly the qualifications, views, and obligations of colleagues.
(b) Social workers should avoid unwarranted negative criticism of colleagues in communications with clients or with other professionals. Unwarranted negative criticism may include demeaning comments that refer to colleagues’ level of competence or to individuals’ attributes such as race, ethnicity, national origin, color, sex, sexual orientation, gender identity or expression, age, marital status, political belief, religion, immigration status, and mental or physical disability.

4.02 Discrimination

Social workers should not practice, condone, facilitate, or collaborate with any form of discrimination on the basis of race, ethnicity, national
origin, color, sex, sexual orientation, gender identity or expression, age, marital status, political belief, religion, immigration status, or mental or physical disability.

6.04 Social and Political Action

(d) Social workers should act to prevent and eliminate domination of, exploitation of, and discrimination against any person, group, or class on the basis of race, ethnicity, national origin, color, sex, sexual orientation, gender identity or expression, age, marital status, political belief, religion, immigration status, or mental or physical disability.

Preamble

The primary mission of the social work profession is to enhance human wellbeing and help meet the basic human needs of all people, with particular attention to the needs and empowerment of people who are vulnerable, oppressed, and living in poverty. A historic and defining feature of social work is the profession’s focus on individual wellbeing in a social context and the wellbeing of society. Fundamental to social work is attention to the environmental forces that create, contribute to, and address problems in living.

Social workers promote social justice and social change with and on behalf of clients. "Clients" is used inclusively to refer to individuals, families, groups, organizations, and communities. Social workers are sensitive to cultural and ethnic diversity and strive to end discrimination, oppression, poverty, and other forms of social injustice. These activities may be in the form of direct practice, community organizing, supervision, consultation administration, advocacy, social and political action, policy development and implementation, education, and research and evaluation. Social workers seek to enhance the capacity of people to address their own needs. Social workers also seek to promote the responsiveness of organizations, communities, and other social institutions to individuals’ needs and social problems.

The mission of the social work profession is rooted in a set of core values. These core values, embraced by social workers throughout the profession’s history, are the foundation of social work’s unique purpose and perspective:

                                            SERVICE                                

                                        SOCIAL JUSTICE

                           DIGNITY AND WORTH OF THE PERSON

                         IMPORTANCE OF HUMAN RELATIONSHIPS

                                             INTEGRITY

                                           COMPETENCE

This constellation of core values reflects what is unique to the social work profession. Core values, and the principles that flow from them, must be balanced within the context and complexity of the human experience.

Purpose of the NASW Code of Ethics

Professional ethics are at the core of social work. The profession has an obligation to articulate its basic values, ethical principles, and ethical standards. The NASW Code of Ethics sets forth these values, principles, and standards to guide social workers’ conduct. The Code is relevant to all social workers and social work students, regardless of their professional functions, the settings in which they work, or the populations they serve.

The NASW Code of Ethics serves six purposes:                                           

The Code identifies core values on which social work’s mission is based.

The Code summarizes broad ethical principles that reflect the profession’s core values and establishes a set of specific ethical standards that should be used to guide social work practice.

The Code is designed to help social workers identify relevant considerations when professional obligations conflict or ethical uncertainties arise.

The Code provides ethical standards to which the general public can hold the social work profession accountable.

The Code socializes practitioners new to the field to social work’s mission, values, ethical principles, and ethical standards.

The Code articulates standards that the social work profession itself can use to assess whether social workers have engaged in unethical conduct. NASW has formal procedures to adjudicate ethics complaints filed against its members.* In subscribing to this Cod, social workers are required to cooperate in its implementation, participate in NASW adjudication proceedings, and abide by any NASW disciplinary rulings or sanctions based on it.

The Code offers a set of values, principles, and standards to guide decision making and conduct when ethical issues arise. It does not provide a set of rules that prescribe how social workers should act in all situations. Specific applications of the Code must take into account the context in which it is being considered and the possibility of conflicts among the Code‘s values, principles, and standards. Ethical responsibilities flow from all human relationships, from the personal and familial to the social and professional.

Further, the NASW Code of Ethics does not specify which values, principles, and standards are most important and ought to outweigh others in instances when they conflict. Reasonable differences of opinion can and do exist among social workers with respect to the ways in which values, ethical principles, and ethical standards should be rank ordered when they conflict. Ethical decision making in a given situation must apply the informed judgment of the individual social worker and should also consider how the issues would be judged in a peer review process where the ethical standards of the profession would be applied.

Ethical decision making is a process. There are many instances in social work where simple answers are not available to resolve complex ethical issues. Social workers should take into consideration all the values, principles, and standards in this Code that are relevant to any situation in which ethical judgment is warranted. Social workers’ decisions and actions should be consistent with the spirit as well as the letter of this Code.

In addition to this Code, there are many other sources of information about ethical thinking that may be useful. Social workers should consider ethical theory and principles generally, social work theory and research, laws, regulations, agency policies, and other relevant codes of ethics, recognizing that among codes of ethics social workers should consider the NASW Code of Ethics as their primary source. Social workers also should be aware of the impact on ethical decision making of their clients’ and their own personal values and cultural and religious beliefs and practices. They should be aware of any conflicts between personal and professional values and deal with them responsibly. For additional guidance social workers should consult the relevant literature on professional ethics and ethical decision making and seek appropriate consultation when faced with ethical dilemmas. This may involve consultation with an agencybased or social work organization’s ethics committee, a regulatory body, knowledgeable colleagues, supervisors, or legal counsel.

Instances may arise when social workers’ ethical obligations conflict with agency policies or relevant laws or regulations. When such conflicts occur, social workers must make a responsible effort to resolve the conflict in a manner that is consistent with the values, principles, and standards expressed in this Code. If a reasonable resolution of the conflict does not appear possible, social workers should seek proper consultation before making a decision.

The NASW Code of Ethics is to be used by NASW and by individuals, agencies, organizations, and bodies (such as licensing and regulatory boards, professional liability insurance providers, courts of law, agency boards of directors, government agencies, and other professional groups) that choose to adopt it or use it as a frame of reference. Violation of standards in this Code does not automatically imply legal liability or violation of the law. Such determination can only be made in the context of legal and judicial proceedings. Alleged violations of the Code would be subject to a peer review process. Such processes are generally separate from legal or administrative procedures and insulated from legal review or proceedings to allow the profession to counsel and discipline its own members.

A code of ethics cannot guarantee ethical behavior. Moreover, a code of ethics cannot resolve all ethical issues or disputes or capture the richness and complexity involved in striving to make responsible choices within a moral community. Rather, a code of ethics sets forth values, ethical principles, and ethical standards to which professionals aspire and by which their actions can be judged. Social workers’ ethical behavior should result from their personal commitment to engage in ethical practice. The NASW Code of Ethics reflects the commitment of all social workers to uphold the profession’s values and to act ethically. Principles and standards must be applied by individuals of good character who discern moral questions and, in good faith, seek to make reliable ethical judgments.

Ethical Principles

The following broad ethical principles are based on social work’s core values of service, social justice, dignity and worth of the person, importance of human relationships, integrity, and competence. These principles set forth ideals to which all social workers should aspire. Value: Service

Ethical Principle: Social workers’ primary goal is to help people in need and to address social problems.
Social workers elevate service to others above selfinterest. Social workers draw on their knowledge, values, and skills to help people in need and to address social problems. Social workers are encouraged to volunteer some portion of their professional skills with no expectation of
significant financial return (pro bono service). Value: Social Justice

Ethical Principle: Social workers challenge social injustice.
Social workers pursue social change, particularly with and on behalf of vulnerable and oppressed individuals and groups of people. Social workers’ social change efforts are focused primarily on issues of poverty, unemployment, discrimination, and other forms of social injustice. These activities seek to promote sensitivity to and knowledge about oppression and cultural and ethnic diversity. Social workers strive to ensure access to needed information, services, and resources; equality of opportunity; and meaningful participation in decision making for all people.
Value: Dignity and Worth of the Person

Ethical Principle: Social workers respect the inherent dignity and worth of the person.
Social workers treat each person in a caring and respectful fashion, mindful of individual differences and cultural and ethnic diversity. Social workers promote clients’ socially responsible selfdetermination. Social workers seek to enhance clients’ capacity and opportunity to change and to address their own needs. Social workers are cognizant of their dual responsibility to clients and to the broader society. They seek to resolve conflicts between clients’ interests and the broader society’s interests in a socially responsible manner consistent with the values, ethical principles, and ethical standards of the profession.
Value: Importance of Human Relationships

Ethical Principle: Social workers recognize the central importance of human relationships.
Social workers understand that relationships between and among people are an important vehicle for change. Social workers engage people as partners in the helping process. Social workers seek to strengthen relationships among people in a purposeful effort to promote, restore, maintain, and enhance the wellbeing of individuals, families, social groups, organizations, and communities. Value: Integrity

Ethical Principle: Social workers behave in a trustworthy manner.
Social workers are continually aware of the profession’s mission, values, ethical principles, and ethical standards and practice in a manner consistent with them. Social workers act honestly and responsibly and promote ethical practices on the part of the organizations with which they are affiliated.
Value: Competence

Ethical Principle: Social workers practice within their areas of competence and develop and enhance their professional expertise.
Social workers continually strive to increase their professional knowledge and skills and to apply them in practice. Social workers should aspire to contribute to the knowledge base of the profession.

Ethical Standards

The following ethical standards are relevant to the professional activities of all social workers. These standards concern (1) social workers’ ethical responsibilities to clients, (2) social workers’ ethical responsibilities to colleagues, (3) social workers’ ethical responsibilities in practice settings, (4) social workers’ ethical responsibilities as professionals, (5) social workers’ ethical responsibilities to the social work profession, and (6) social workers’ ethical responsibilities to the broader society.

Some of the standards that follow are enforceable guidelines for professional conduct, and some are aspirational. The extent to which each standard is enforceable is a matter of professional judgment to be exercised by those responsible for reviewing alleged violations of ethical standards.

1. SOCIAL WORKERS’ ETHICAL RESPONSIBILITIES TO CLIENTS

1.01 Commitment to Clients

Social workers’ primary responsibility is to promote the wellbeing of clients. In general, clients’ interests are primary. However, social workers’ responsibility to the larger society or specific legal obligations may on limited occasions supersede the loyalty owed clients, and clients should be so advised. (Examples include when a social worker is required by law to report that a client has abused a child or has threatened to harm self or others.)

1.02 SelfDetermination

Social workers respect and promote the right of clients to selfdetermination and assist clients in their efforts to identify and clarify their goals. Social workers may limit clients’ right to selfdetermination when, in the social workers’ professional judgment, clients’ actions or potential actions pose a serious, foreseeable, and imminent risk to themselves or others.

1.03 Informed Consent

(a) Social workers should provide services to clients only in the context of a professional relationship based, when appropriate, on valid informed consent. Social workers should use clear and understandable language to inform clients of the purpose of the services, risks related to the services, limits to services because of the requirements of a thirdparty payer, relevant costs, reasonable alternatives, clients’ right to refuse or withdraw consent, and the time frame covered by the consent. Social workers should provide clients with an opportunity to ask questions.

(b) In instances when clients are not literate or have difficulty understanding the primary language used in the practice setting, social workers should take steps to ensure clients’ comprehension. This may include providing clients with a detailed verbal explanation or arranging for a qualified interpreter or translator whenever possible.

(c) In instances when clients lack the capacity to provide informed consent, social workers should protect clients’ interests by seeking permission from an appropriate third party, informing clients consistent with the clients’ level of understanding. In such instances social workers should seek to ensure that the third party acts in a manner consistent with clients’ wishes and interests. Social workers should take reasonable steps to enhance such clients’ ability to give informed consent.

(d) In instances when clients are receiving services involuntarily, social workers should provide information about the nature and extent of services and about the extent of clients’ right to refuse service.

(e) Social workers who provide services via electronic media (such as computer, telephone, radio, and television) should inform recipients of the limitations and risks associated with such services.

(f) Social workers should obtain clients’ informed consent before audiotaping or videotaping clients or permitting observation of services to clients by a third party.

1.04 Competence

(a) Social workers should provide services and represent themselves as competent only within the boundaries of their education, training, license, certification, consultation received, supervised experience, or other relevant professional experience.

(b) Social workers should provide services in substantive areas or use intervention techniques or approaches that are new to them only after engaging in appropriate study, training, consultation, and supervision from people who are competent in those interventions or techniques.

(c) When generally recognized standards do not exist with respect to an emerging area of practice, social workers should exercise careful judgment and take responsible steps (including appropriate education, research, training, consultation, and supervision) to ensure the competence of their work and to protect clients from harm.

1.05 Cultural Competence and Social Diversity

(a) Social workers should understand culture and its function in human behavior and society, recognizing the strengths that exist in all cultures.

(b) Social workers should have a knowledge base of their clients’ cultures and be able to demonstrate competence in the provision of services that are sensitive to clients’ cultures and to differences among people and cultural groups.

(c) Social workers should obtain education about and seek to understand the nature of social diversity and oppression with respect to race, ethnicity, national origin, color, sex, sexual orientation, gender identity or expression, age, marital status, political belief, religion, immigration status, and mental or physical disability.

1.06 Conflicts of Interest

(a) Social workers should be alert to and avoid conflicts of interest that interfere with the exercise of professional discretion and impartial judgment. Social workers should inform clients when a real or potential conflict of interest arises and take reasonable steps to resolve the issue in a manner that makes the clients’ interests primary and protects clients’ interests to the greatest extent possible. In some cases, protecting clients’ interests may require termination of the professional relationship with proper referral of the client.

(b) Social workers should not take unfair advantage of any professional relationship or exploit others to further their personal, religious, political, or business interests.

(c) Social workers should not engage in dual or multiple relationships with clients or former clients in which there is a risk of exploitation or potential harm to the client. In instances when dual or multiple relationships are unavoidable, social workers should take steps to protect clients and are responsible for setting clear, appropriate, and culturally sensitive boundaries. (Dual or multiple relationships occur when social workers relate to clients in more than one relationship, whether professional, social, or business. Dual or multiple relationships can occur simultaneously or consecutively.)

(d) When social workers provide services to two or more people who have a relationship with each other (for example, couples, family members), social workers should clarify with all parties which individuals will be considered clients and the nature of social workers’ professional obligations to the various individuals who are receiving services. Social workers who anticipate a conflict of interest among the individuals receiving services or who anticipate having to perform in potentially conflicting roles (for example, when a social worker is asked to testify in a child custody dispute or divorce proceedings involving clients) should clarify their role with the parties involved and take appropriate action to minimize any conflict of interest.

1.07 Privacy and Confidentiality

(a) Social workers should respect clients’ right to privacy. Social workers should not solicit private information from clients unless it is essential to providing services or conducting social work evaluation or research. Once private information is shared, standards of confidentiality apply.

(b) Social workers may disclose confidential information when appropriate with valid consent from a client or a person legally authorized to consent on behalf of a client.

(c) Social workers should protect the confidentiality of all information obtained in the course of professional service, except for compelling professional reasons. The general expectation that social workers will keep information confidential does not apply when disclosure is necessary to prevent serious, foreseeable, and imminent harm to a client or other identifiable person. In all instances, social workers should disclose the least amount of confidential information necessary to achieve the desired purpose; only information that is directly relevant to the purpose for which the disclosure is made should be revealed.

(d) Social workers should inform clients, to the extent possible, about the disclosure of confidential information and the potential consequences, when feasible before the disclosure is made. This applies whether social workers disclose confidential information on the basis of a legal requirement or client consent.

(e) Social workers should discuss with clients and other interested parties the nature of confidentiality and limitations of clients’ right to confidentiality. Social workers should review with clients circumstances where confidential information may be requested and where disclosure of confidential information may be legally required. This discussion should occur as soon as possible in the social workerclient relationship and as needed throughout the course of the relationship.

(f) When social workers provide counseling services to families, couples, or groups, social workers should seek agreement among the parties involved concerning each individual’s right to confidentiality and obligation to preserve the confidentiality of information shared by others. Social workers should inform participants in family, couples, or group counseling that social workers cannot guarantee that all participants will honor such agreements.

(g) Social workers should inform clients involved in family, couples, marital, or group counseling of the social worker’s, employer’s, and agency’s policy concerning the social worker’s disclosure of confidential information among the parties involved in the counseling.

(h) Social workers should not disclose confidential information to thirdparty payers unless clients have authorized such disclosure.

(i) Social workers should not discuss confidential information in any setting unless privacy can be ensured. Social workers should not discuss confidential information in public or semipublic areas such as hallways, waiting rooms, elevators, and restaurants.

(j) Social workers should protect the confidentiality of clients during legal proceedings to the extent permitted by law. When a court of law or other legally authorized body orders social workers to disclose confidential or privileged information without a client’s consent and such disclosure could cause harm to the client, social workers should request that the court withdraw the order or limit the order as narrowly as possible or maintain the records under seal, unavailable for public inspection.

(k) Social workers should protect the confidentiality of clients when responding to requests from members of the media.

(l) Social workers should protect the confidentiality of clients’ written and electronic records and other sensitive information. Social workers should take reasonable steps to ensure that clients’ records are stored in a secure location and that clients’ records are not available to others who are not authorized to have access.

(m) Social workers should take precautions to ensure and maintain the confidentiality of information transmitted to other parties through the use of computers, electronic mail, facsimile machines, telephones and telephone answering machines, and other electronic or computer technology. Disclosure of identifying information should be avoided whenever possible.

(n) Social workers should transfer or dispose of clients’ records in a manner that protects clients’ confidentiality and is consistent with state statutes governing records and social work licensure.

(o) Social workers should take reasonable precautions to protect client confidentiality in the event of the social worker’s termination of practice, incapacitation, or death.

(p) Social workers should not disclose identifying information when discussing clients for teaching or training purposes unless the client has consented to disclosure of confidential information.

(q) Social workers should not disclose identifying information when discussing clients with consultants unless the client has consented to disclosure of confidential information or there is a compelling need for such disclosure.

(r) Social workers should protect the confidentiality of deceased clients consistent with the preceding standards.

1.08 Access to Records

(a) Social workers should provide clients with reasonable access to records concerning the clients. Social workers who are concerned that clients’ access to their records could cause serious misunderstanding or harm to the client should provide assistance in interpreting the records and consultation with the client regarding the records. Social workers should limit clients’ access to their records, or portions of their records, only in exceptional circumstances when there is compelling evidence that such access would cause serious harm to the client. Both clients’ requests and the rationale for withholding some or all of the record should be documented in clients’ files.

(b) When providing clients with access to their records, social workers should take steps to protect the confidentiality of other individuals identified or discussed in such records.

1.09 Sexual Relationships

(a) Social workers should under no circumstances engage in sexual activities or sexual contact with current clients, whether such contact is consensual or forced.

(b) Social workers should not engage in sexual activities or sexual contact with clients’ relatives or other individuals with whom clients maintain a close personal relationship when there is a risk of exploitation or potential harm to the client. Sexual activity or sexual contact with clients’ relatives or other individuals with whom clients maintain a personal relationship has the potential to be harmful to the client and may make it difficult for the social worker and client to maintain appropriate professional boundaries. Social workers—not their clients, their clients’ relatives, or other individuals with whom the client maintains a personal relationship—assume the full burden for setting clear, appropriate, and culturally sensitive boundaries.

(c) Social workers should not engage in sexual activities or sexual contact with former clients because of the potential for harm to the client. If social workers engage in conduct contrary to this prohibition or claim that an exception to this prohibition is warranted because of extraordinary circumstances, it is social workers—not their clients—who assume the full burden of demonstrating that the former client has not been exploited, coerced, or manipulated, intentionally or unintentionally.

(d) Social workers should not provide clinical services to individuals with whom they have had a prior sexual relationship. Providing clinical services to a former sexual partner has the potential to be harmful to the individual and is likely to make it difficult for the social worker and individual to maintain appropriate professional boundaries.

1.10 Physical Contact

Social workers should not engage in physical contact with clients when there is a possibility of psychological harm to the client as a result of the contact (such as cradling or caressing clients). Social workers who engage in appropriate physical contact with clients are responsible for setting clear, appropriate, and culturally sensitive boundaries that govern such physical contact.

1.11 Sexual Harassment

Social workers should not sexually harass clients. Sexual harassment includes sexual advances, sexual solicitation, requests for sexual favors, and other verbal or physical conduct of a sexual nature.

1.12 Derogatory Language

Social workers should not use derogatory language in their written or verbal communications to or about clients. Social workers should use accurate and respectful language in all communications to and about clients.

1.13 Payment for Services

(a) When setting fees, social workers should ensure that the fees are fair, reasonable, and commensurate with the services performed. Consideration should be given to clients’ ability to pay.

(b) Social workers should avoid accepting goods or services from clients as payment for professional services. Bartering arrangements, particularly involving services, create the potential for conflicts of interest, exploitation, and inappropriate boundaries in social workers’ relationships with clients. Social workers should explore and may participate in bartering only in very limited circumstances when it can be demonstrated that such arrangements are an accepted practice among professionals in the local community, considered to be essential for the provision of services, negotiated without coercion, and entered into at the client’s initiative and with the client’s informed consent. Social workers who accept goods or services from clients as payment for professional services assume the full burden of demonstrating that this arrangement will not be detrimental to the client or the professional relationship.

(c) Social workers should not solicit a private fee or other remuneration for providing services to clients who are entitled to such available services through the social workers’ employer or agency.

1.14 Clients Who Lack DecisionMaking Capacity

When social workers act on behalf of clients who lack the capacity to make informed decisions, social workers should take reasonable steps to safeguard the interests and rights of those clients.

1.15 Interruption of Services

Social workers should make reasonable efforts to ensure continuity of services in the event that services are interrupted by factors such as unavailability, relocation, illness, disability, or death.

1.16 Termination of Services

(a) Social workers should terminate services to clients and professional relationships with them when such services and
relationships are no longer required or no longer serve the clients’ needs or interests.

(b) Social workers should take reasonable steps to avoid abandoning clients who are still in need of services. Social workers should withdraw services precipitously only under unusual circumstances, giving careful consideration to all factors in the situation and taking care to minimize possible adverse effects. Social workers should assist in making appropriate arrangements for continuation of services when necessary.

(c) Social workers in feeforservice settings may terminate services to clients who are not paying an overdue balance if the financial contractual arrangements have been made clear to the client, if the client does not pose an imminent danger to self or others, and if the clinical and other consequences of the current nonpayment have been addressed and discussed with the client.

(d) Social workers should not terminate services to pursue a social, financial, or sexual relationship with a client.

(e) Social workers who anticipate the termination or interruption of services to clients should notify clients promptly and seek the transfer, referral, or continuation of services in relation to the clients’ needs and preferences.

(f) Social workers who are leaving an employment setting should inform clients of appropriate options for the continuation of services and of the benefits and risks of the options.

2. SOCIAL WORKERS’ ETHICAL RESPONSIBILITIES TO COLLEAGUES

2.01 Respect

(a) Social workers should treat colleagues with respect and should represent accurately and fairly the qualifications, views, and obligations of colleagues.
(b) Social workers should avoid unwarranted negative criticism of colleagues in communications with clients or with other professionals. Unwarranted negative criticism may include demeaning comments that refer to colleagues’ level of competence or to individuals’ attributes such as race, ethnicity, national origin, color, sex, sexual orientation, gender identity or expression, age, marital status, political belief, religion, immigration status, and mental or physical disability.
(c) Social workers should cooperate with social work colleagues and with colleagues of other professions when such cooperation serves the wellbeing of clients.

2.02 Confidentiality

Social workers should respect confidential information shared by colleagues in the course of their professional relationships and transactions. Social workers should ensure that such colleagues understand social workers’ obligation to respect confidentiality and any exceptions related to it.

2.03 Interdisciplinary Collaboration

(a) Social workers who are members of an interdisciplinary team should participate in and contribute to decisions that affect the wellbeing of clients by drawing on the perspectives, values, and experiences of the social work profession. Professional and ethical obligations of the interdisciplinary team as a whole and of its individual members should be clearly established.

(b) Social workers for whom a team decision raises ethical concerns should attempt to resolve the disagreement through appropriate channels. If the disagreement cannot be resolved, social workers should pursue other avenues to address their concerns consistent with client wellbeing.

2.04 Disputes Involving Colleagues

(a) Social workers should not take advantage of a dispute between a colleague and an employer to obtain a position or otherwise advance the social workers’ own interests.

(b) Social workers should not exploit clients in disputes with colleagues or engage clients in any inappropriate discussion of conflicts between social workers and their colleagues.

2.05 Consultation

(a) Social workers should seek the advice and counsel of colleagues whenever such consultation is in the best interests of clients.

(b) Social workers should keep themselves informed about colleagues’ areas of expertise and competencies. Social workers should seek consultation only from colleagues who have demonstrated knowledge, expertise, and competence related to the subject of the consultation.

(c) When consulting with colleagues about clients, social workers should disclose the least amount of information necessary to achieve the purposes of the consultation.

2.06 Referral for Services

(a) Social workers should refer clients to other professionals when the other professionals’ specialized knowledge or expertise is needed to serve clients fully or when social workers believe that they are not being effective or making reasonable progress with clients and that additional service is required.

(b) Social workers who refer clients to other professionals should take appropriate steps to facilitate an orderly transfer of responsibility. Social workers who refer clients to other professionals should disclose, with clients’ consent, all pertinent information to the new service providers.

(c) Social workers are prohibited from giving or receiving payment for a referral when no professional service is provided by the referring social worker.

2.07 Sexual Relationships

(a) Social workers who function as supervisors or educators should not engage in sexual activities or contact with supervisees, students, trainees, or other colleagues over whom they exercise professional authority.

(b) Social workers should avoid engaging in sexual relationships with colleagues when there is potential for a conflict of interest. Social workers who become involved in, or anticipate becoming involved in, a sexual relationship with a colleague have a duty to transfer professional responsibilities, when necessary, to avoid a conflict of interest.

2.08 Sexual Harassment

Social workers should not sexually harass supervisees, students, trainees, or colleagues. Sexual harassment includes sexual advances, sexual solicitation, requests for sexual favors, and other verbal or physical conduct of a sexual nature.

2.09 Impairment of Colleagues

(a) Social workers who have direct knowledge of a social work colleague’s impairment that is due to personal problems, psychosocial distress, substance abuse, or mental health difficulties and that interferes
with practice effectiveness should consult with that colleague when feasible and assist the colleague in taking remedial action.

(b) Social workers who believe that a social work colleague’s impairment interferes with practice effectiveness and that the colleague has not taken adequate steps to address the impairment should take action through appropriate channels established by employers, agencies, NASW, licensing and regulatory bodies, and other professional organizations.

2.10 Incompetence of Colleagues

(a) Social workers who have direct knowledge of a social work colleague’s incompetence should consult with that colleague when feasible and assist the colleague in taking remedial action.

(b) Social workers who believe that a social work colleague is incompetent and has not taken adequate steps to address the incompetence should take action through appropriate channels established by employers, agencies, NASW, licensing and regulatory bodies, and other professional organizations.

2.11 Unethical Conduct of Colleagues

(a) Social workers should take adequate measures to discourage, prevent, expose, and correct the unethical conduct of colleagues.

(b) Social workers should be knowledgeable about established policies and procedures for handling concerns about colleagues’ unethical behavior. Social workers should be familiar with national, state, and local procedures for handling ethics complaints. These include policies and procedures created by NASW, licensing and regulatory bodies, employers, agencies, and other professional organizations.

(c) Social workers who believe that a colleague has acted unethically should seek resolution by discussing their concerns with the colleague when feasible and when such discussion is likely to be productive.

(d) When necessary, social workers who believe that a colleague has acted unethically should take action through appropriate formal channels (such as contacting a state licensing board or regulatory body, an NASW committee on inquiry, or other professional ethics committees).

(e) Social workers should defend and assist colleagues who are unjustly charged with unethical conduct.

3. SOCIAL WORKERS’ ETHICAL RESPONSIBILITIES IN PRACTICE SETTINGS

3.01 Supervision and Consultation

(a) Social workers who provide supervision or consultation should have the necessary knowledge and skill to supervise or consult appropriately and should do so only within their areas of knowledge and competence.

(b) Social workers who provide supervision or consultation are responsible for setting clear, appropriate, and culturally sensitive boundaries.

(c) Social workers should not engage in any dual or multiple relationships with supervisees in which there is a risk of exploitation of or potential harm to the supervisee.

(d) Social workers who provide supervision should evaluate supervisees’ performance in a manner that is fair and respectful.

3.02 Education and Training

(a) Social workers who function as educators, field instructors for students, or trainers should provide instruction only within their areas of knowledge and competence and should provide instruction based on the most current information and knowledge available in the profession.

(b) Social workers who function as educators or field instructors for students should evaluate students’ performance in a manner that is fair and respectful.

(c) Social workers who function as educators or field instructors for students should take reasonable steps to ensure that clients are routinely informed when services are being provided by students.

(d) Social workers who function as educators or field instructors for students should not engage in any dual or multiple relationships with students in which there is a risk of exploitation or potential harm to the student. Social work educators and field instructors are responsible for setting clear, appropriate, and culturally sensitive boundaries.

3.03 Performance Evaluation

Social workers who have responsibility for evaluating the performance of others should fulfill such responsibility in a fair and considerate manner and on the basis of clearly stated criteria.

3.04 Client Records

(a) Social workers should take reasonable steps to ensure that documentation in records is accurate and reflects the services provided.

(b) Social workers should include sufficient and timely documentation in records to facilitate the delivery of services and to ensure continuity of services provided to clients in the future.

(c) Social workers’ documentation should protect clients’ privacy to the extent that is possible and appropriate and should include only information that is directly relevant to the delivery of services.

(d) Social workers should store records following the termination of services to ensure reasonable future access. Records should be maintained for the number of years required by state statutes or relevant contracts.

3.05 Billing

Social workers should establish and maintain billing practices that accurately reflect the nature and extent of services provided and that identify who provided the service in the practice setting.

3.06 Client Transfer

(a) When an individual who is receiving services from another agency or colleague contacts a social worker for services, the social worker should carefully consider the client’s needs before agreeing to provide services. To minimize possible confusion and conflict, social workers should discuss with potential clients the nature of the clients’ current relationship with other service providers and the implications, including possible benefits or risks, of entering into a relationship with a new service provider.

(b) If a new client has been served by another agency or colleague, social workers should discuss with the client whether consultation with the previous service provider is in the client’s best interest.

3.07 Administration

(a) Social work administrators should advocate within and outside their agencies for adequate resources to meet clients’ needs.

(b) Social workers should advocate for resource allocation procedures that are open and fair. When not all clients’ needs can be met, an
allocation procedure should be developed that is nondiscriminatory and based on appropriate and consistently applied principles.

(c) Social workers who are administrators should take reasonable steps to ensure that adequate agency or organizational resources are available to provide appropriate staff supervision.

(d) Social work administrators should take reasonable steps to ensure that the working environment for which they are responsible is consistent with and encourages compliance with the NASW Code of Ethics. Social work administrators should take reasonable steps to eliminate any conditions in their organizations that violate, interfere with, or discourage compliance with the Code.

3.08 Continuing Education and Staff Development

Social work administrators and supervisors should take reasonable steps to provide or arrange for continuing education and staff development for all staff for whom they are responsible. Continuing education and staff development should address current knowledge and emerging developments related to social work practice and ethics.

3.09 Commitments to Employers

(a) Social workers generally should adhere to commitments made to employers and employing organizations.

(b) Social workers should work to improve employing agencies’ policies and procedures and the efficiency and effectiveness of their services.

(c) Social workers should take reasonable steps to ensure that employers are aware of social workers’ ethical obligations as set forth in the NASW Code of Ethics and of the implications of those obligations for social work practice.

(d) Social workers should not allow an employing organization’s policies, procedures, regulations, or administrative orders to interfere with their ethical practice of social work. Social workers should take reasonable steps to ensure that their employing organizations’ practices are consistent with the NASW Code of Ethics.

(e) Social workers should act to prevent and eliminate discrimination in the employing organization’s work assignments and in its employment policies and practices.

(f) Social workers should accept employment or arrange student field placements only in organizations that exercise fair personnel practices.

(g) Social workers should be diligent stewards of the resources of their employing organizations, wisely conserving funds where appropriate and never misappropriating funds or using them for unintended purposes.

3.10 LaborManagement Disputes

(a) Social workers may engage in organized action, including the formation of and participation in labor unions, to improve services to clients and working conditions.

(b) The actions of social workers who are involved in labormanagement disputes, job actions, or labor strikes should be guided by the profession’s values, ethical principles, and ethical standards. Reasonable differences of opinion exist among social workers concerning their primary obligation as professionals during an actual or threatened labor strike or job action. Social workers should carefully examine relevant issues and their possible impact on clients before deciding on a course of action.

4. SOCIAL WORKERS’ ETHICAL RESPONSIBILITIES AS PROFESSIONALS

4.01 Competence

(a) Social workers should accept responsibility or employment only on the basis of existing competence or the intention to acquire the necessary competence.

(b) Social workers should strive to become and remain proficient in professional practice and the performance of professional functions. Social workers should critically examine and keep current with emerging knowledge relevant to social work. Social workers should routinely review the professional literature and participate in continuing education relevant to social work practice and social work ethics.

(c) Social workers should base practice on recognized knowledge, including empirically based knowledge, relevant to social work and social work ethics.

4.02 Discrimination

Social workers should not practice, condone, facilitate, or collaborate with any form of discrimination on the basis of race, ethnicity, national origin, color, sex, sexual orientation, gender identity or expression, age, marital status, political belief, religion, immigration status, or mental or physical disability.

 

4.03 Private Conduct

Social workers should not permit their private conduct to interfere with their ability to fulfill their professional responsibilities.

4.04 Dishonesty, Fraud, and Deception

Social workers should not participate in, condone, or be associated with dishonesty, fraud, or deception.

4.05 Impairment

(a) Social workers should not allow their own personal problems, psychosocial distress, legal problems, substance abuse, or mental health difficulties to interfere with their professional judgment and performance or to jeopardize the best interests of people for whom they have a professional responsibility.

(b) Social workers whose personal problems, psychosocial distress, legal problems, substance abuse, or mental health difficulties interfere with their professional judgment and performance should immediately seek consultation and take appropriate remedial action by seeking professional help, making adjustments in workload, terminating practice, or taking any other steps necessary to protect clients and others.

 

4.06 Misrepresentation

(a) Social workers should make clear distinctions between statements made and actions engaged in as a private individual and as a representative of the social work profession, a professional social work organization, or the social worker’s employing agency.

(b) Social workers who speak on behalf of professional social work organizations should accurately represent the official and authorized positions of the organizations.

(c) Social workers should ensure that their representations to clients, agencies, and the public of professional qualifications, credentials, education, competence, affiliations, services provided, or results to be achieved are accurate. Social workers should claim only those relevant professional credentials they actually possess and take steps to correct any inaccuracies or misrepresentations of their credentials by others.

4.07 Solicitations

(a) Social workers should not engage in uninvited solicitation of potential clients who, because of their circumstances, are vulnerable to undue influence, manipulation, or coercion.

(b) Social workers should not engage in solicitation of testimonial endorsements (including solicitation of consent to use a client’s prior statement as a testimonial endorsement) from current clients or from other people who, because of their particular circumstances, are vulnerable to undue influence.

4.08 Acknowledging Credit

(a) Social workers should take responsibility and credit, including authorship credit, only for work they have actually performed and to which they have contributed.

(b) Social workers should honestly acknowledge the work of and the contributions made by others.

5. SOCIAL WORKERS’ ETHICAL RESPONSIBILITIES TO THE SOCIAL WORK PROFESSION

5.01 Integrity of the Profession

(a) Social workers should work toward the maintenance and promotion of high standards of practice.

(b) Social workers should uphold and advance the values, ethics, knowledge, and mission of the profession. Social workers should protect, enhance, and improve the integrity of the profession through appropriate study and research, active discussion, and responsible criticism of the profession.

(c) Social workers should contribute time and professional expertise to activities that promote respect for the value, integrity, and competence of the social work profession. These activities may include teaching, research, consultation, service, legislative testimony, presentations in the community, and participation in their professional organizations.

(d) Social workers should contribute to the knowledge base of social work and share with colleagues their knowledge related to practice, research, and ethics. Social workers should seek to contribute to the profession’s literature and to share their knowledge at professional meetings and conferences.

(e) Social workers should act to prevent the unauthorized and unqualified practice of social work.

5.02 Evaluation and Research

(a) Social workers should monitor and evaluate policies, the implementation of programs, and practice interventions.

(b) Social workers should promote and facilitate evaluation and research to contribute to the development of knowledge.

(c) Social workers should critically examine and keep current with emerging knowledge relevant to social work and fully use evaluation and research evidence in their professional practice.

(d) Social workers engaged in evaluation or research should carefully consider possible consequences and should follow guidelines developed for the protection of evaluation and research participants. Appropriate institutional review boards should be consulted.

(e) Social workers engaged in evaluation or research should obtain voluntary and written informed consent from participants, when appropriate, without any implied or actual deprivation or penalty for refusal to participate; without undue inducement to participate; and with due regard for participants’ wellbeing, privacy, and dignity. Informed consent should include information about the nature, extent, and duration of the participation requested and disclosure of the risks and benefits of participation in the research.

(f) When evaluation or research participants are incapable of giving informed consent, social workers should provide an appropriate explanation to the participants, obtain the participants’ assent to the extent they are able, and obtain written consent from an appropriate proxy.

(g) Social workers should never design or conduct evaluation or research that does not use consent procedures, such as certain forms of naturalistic observation and archival research, unless rigorous and responsible review of the research has found it to be justified because of its prospective scientific, educational, or applied value and unless equally effective alternative procedures that do not involve waiver of consent are not feasible.

(h) Social workers should inform participants of their right to withdraw from evaluation and research at any time without penalty.

(i) Social workers should take appropriate steps to ensure that participants in evaluation and research have access to appropriate supportive services.

(j) Social workers engaged in evaluation or research should protect participants from unwarranted physical or mental distress, harm, danger, or deprivation.

(k) Social workers engaged in the evaluation of services should discuss collected information only for professional purposes and only with people professionally concerned with this information.

(l) Social workers engaged in evaluation or research should ensure the anonymity or confidentiality of participants and of the data obtained from them. Social workers should inform participants of any limits of confidentiality, the measures that will be taken to ensure confidentiality, and when any records containing research data will be destroyed.

(m) Social workers who report evaluation and research results should protect participants’ confidentiality by omitting identifying information unless proper consent has been obtained authorizing disclosure.

(n) Social workers should report evaluation and research findings accurately. They should not fabricate or falsify results and should take steps to correct any errors later found in published data using standard publication methods.

(o) Social workers engaged in evaluation or research should be alert to and avoid conflicts of interest and dual relationships with participants, should inform participants when a real or potential conflict of interest arises, and should take steps to resolve the issue in a manner that makes participants’ interests primary.

(p) Social workers should educate themselves, their students, and their colleagues about responsible research practices.

6. SOCIAL WORKERS’ ETHICAL RESPONSIBILITIES TO THE BROADER SOCIETY

6.01 Social Welfare

Social workers should promote the general welfare of society, from local to global levels, and the development of people, their communities, and their environments. Social workers should advocate for living conditions conducive to the fulfillment of basic human needs and should promote social, economic, political, and cultural values and institutions that are compatible with the realization of social justice.

6.02 Public Participation

Social workers should facilitate informed participation by the public in shaping social policies and institutions.

6.03 Public Emergencies

Social workers should provide appropriate professional services in public emergencies to the greatest extent possible.

6.04 Social and Political Action

(a) Social workers should engage in social and political action that seeks to ensure that all people have equal access to the resources, employment, services, and opportunities they require to meet their basic human needs and to develop fully. Social workers should be aware of the impact of the political arena on practice and should advocate for changes in policy and legislation to improve social conditions in order to meet basic human needs and promote social justice.

(b) Social workers should act to expand choice and opportunity for all people, with special regard for vulnerable, disadvantaged, oppressed, and exploited people and groups.

(c) Social workers should promote conditions that encourage respect for cultural and social diversity within the United States and globally. Social workers should promote policies and practices that demonstrate respect for difference, support the expansion of cultural knowledge and resources, advocate for programs and institutions that demonstrate cultural competence, and promote policies that safeguard the rights of and confirm equity and social justice for all people.

(d) Social workers should act to prevent and eliminate domination of, exploitation of, and discrimination against any person, group, or class on the basis of race, ethnicity, national origin, color, sex, sexual orientation, gender identity or expression, age, marital status, political belief, religion, immigration status, or mental or physical disability.

Professional Review

NASW promotes the quality and effectiveness of social work practice. Professional Review is a collaborative process between Chapters and the national office to provide a peer review of alleged unethical conduct of its members. The process is designed to correct and improve the practice of individual social workers as needed. The actions of the process are intended to be constructive and educative rather than punitive. Only in cases of serious misconduct may penalties be imposed.

Brief Description:

The UCCJEA repeals and replaces the Uniform Child Custody Jurisdiction Act (UCCJA). According to its drafters, it (1) seeks to take into account such federal enactments as the Parental Kidnapping Prevention Act (28 U.S.C. 1738A) (the PKPA); (2) provides clearer standards for when a state can exercise original jurisdiction in a custody matter; (3) sets a standard for continuing jurisdiction of a custody case; and (4) clarifies modification jurisdiction. In addition, the UCCJEA establishes in Article 3 an enforcement procedure to be utilized by each state in interstate enforcement much like the practices in the area of child support established by the Uniform Interstate Family Support Act (UIFSA) (750 ILCS 22/100 et seq.) The Act also specifically deals with international custody issues under the Hague Convention.

The UCCJEA is divided into four articles: Article 1 is entitled "General Provisions and includes among other sections a definition section (Section 102) in the same manner as section 2 of the UCCJA. Article 2 is labeled "Jurisdiction" and contains the substantive provisions of the statute with the exception of enforcement. Enforcement is the subject of Article 3 and is essentially new law in Illinois since the UCCJA only minimally covers this issue. Article 4 concerns "Miscellaneous Provisions" and contains among other topics the effective date of the statute (section 403), repeal of the UCCJA (section 404) and conforming amendments to other statutory provisions.
The remainder of this memorandum will seek to point out in each Article the substantial changes or additions that the UCCJEA makes. Not every change is included, but hopefully all of the significant ones are.

 

Article 1

Definitions:

Section 102(3) defines a "child custody determination" to include "a permanent, temporary, initial, and modification order." Section 3.02 of the UCCJA did not specify which custody proceedings were included in the definition: "a court decision and court orders and instructions providing for the custody of a child." This is probably not a change but it clarifies the definition. The drafters’ notes explain that this section tracks the PKPA.

Section 102(4) defining what constitutes a "custody proceeding" specifies proceedings that are included - "divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence in which the issue may appear." Section 3.03 of the UCCJA provided only a general definition - "proceedings in which a custody determination is one of several issues. . . ."

Section 102(10) introduces the notion of an "issuing state" which is borrowed from UIFSA. It is the court or state that has issued the custody determination order that is to be enforced under the provisions in Article 3.

Section 102(12) for the first time includes a definition of the term "person." The term is broadly defined to include an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or other instrumentality, public corporation, or any other legal or commercial entity. Note that the State is a person under the UCCJEA.

Section 102(13) expands the definition of a "person acting as a parent" to include in addition to a person who has physical custody of a child, a person who has had physical custody for a period of six consecutive months within one year immediately before the commencement of a child custody proceeding. However, under the UCCJEA that person in either case must also been either awarded custody by a court or would have a right to legal custody under the law of this State which means that all of the standing cases under 750 ILCS 5/601(b)(2) would apply. The UCCJA defined a person acting as parent as someone who has physical custody and has been awarded custody by a court or claims a right to legal custody.

Adoptions

Section 103 provides that the UCCJEA does not apply in adoption proceedings.

Native Americans

Section 104 clarifies jurisdiction involving custody determination with respect to Native Americans. Subsection (a) provides that the UCCJEA does not apply to the extent the Indian Child Welfare Act applies. For purposes of jurisdiction under Article 2, a Native American tribe is treated as a state by subsection (b). A child custody determination made by a tribe "in substantial conformity with the jurisdictional standards of the Act must be recognized and enforced under Article 3.

Priority

Section 107 of the UCCJEA makes one change from Section 25 of the UCCJA requiring prioritization on a court calendar of child custody jurisdiction matters. It replaces the term "case" with the term "question" to ensure that what is to be expedited is not the entire custody case but only the question of jurisdiction.

Notice to Persons Outside the State

The present rules regarding how to obtain jurisdiction over a person outside the state in a custody proceeding are in section 6 of the UCCJA. They are written in terms of process which follows the Civil Practice Act and notice which also seems to also follow the provisions of the Civil Practice Act regarding process. The distinction is confusing. The significant changes made by Section 108 of the UCCJEA are to drop the notion of process and just utilize the concept of notice for purposes of exercising jurisdiction and specifically adding publication as a means of notice. This should help clarify the problem where courts think that custody jurisdiction follows the rules for personal jurisdiction where publication would not suffice. The UCCJEA deals specifically with this issue in section 201(b), to be discussed.

Appearance and Limited Immunity

Section 109 of the UCCJEA is a new provision that provides that a person who is a party to any child custody proceeding as defined in section 102(4) including modification is not subject to personal jurisdiction for another proceeding even if the person was physically present in the state for purposes of participating in the child custody proceeding.

Communication Between Courts

Section 110 describes the procedures when a court of one state communicates with a court of another state. As discussed below, in the case of emergency jurisdiction and any time there are simultaneous proceedings regarding custody occurring in two states, the courts are mandated to communicate. Section 7 of the UCCJA also provided for communication between court but provided no procedures concerning such a communication. The UCCJEA permits the court to allow the parties to participate in the communication and mandates that no decision be made after a communication where the parties are not participating without providing the parties to present facts and arguments. Section 110 also requires that a record of the communication be made.

Article 2

Section 201 replaces Section 4 of the UCCJA as the source of bases of custody jurisdiction. There are four bases for jurisdiction under the UCCJEA. But, unlike the UCCJA, they are not of equal priority:

Home State Jurisdiction

Home state jurisdiction is the jurisdictional basis of top priority. Section 201(a)(a) of the UCCJEA utilizes the same definition for home state jurisdiction as section 4(a) of the UCCJA with the exception that the alternative basis for home state jurisdiction - when the child is absent from the state but Illinois was the home state within six months before the commencement of the proceeding and a parent or person acting as a parent continues to live in the state - has been broadened by removing the phrase in section 4(1)(ii) "because of his removal or retention by a person claiming his custody or for other reasons . . . ." Therefore, under the UCCJEA the alternative basis of home state jurisdiction can be demonstrated without a factual showing of why the child is not physically present in the state.

Significant Connection

Section 201(a)(2) significantly changes section 4(2) the "best interest" basis for jurisdiction:

Under the UCCJA there were four separate bases jurisdiction without priority. Under the UCCJEA, home state jurisdiction is given priority. Therefore the question of significant connections does not even come into issue unless no court of another state has home state jurisdiction or the court of the other state has declined to exercise jurisdiction because the state in which the proceeding is brought is the more appropriate forum under the inconvenient forum rules contained in section 207 or the declining of jurisdiction by reason of conduct rules in section 208 and then and only then that there is substantial evidence available in this state concerning the child’s care protection, training and personal relationships.

The term "best interest" found in section 4(2) of the UCCJA has been eliminated to clear up confusion that use of that term in the context of jurisdiction might mean the same as when the term is used regarding the merits of a custody dispute. It does not.

In addition, in the context of whether there is a significant connection, the phrase evidence concerning the "present or future care" has been eliminated so that according to the drafters, the jurisdictional determination should be made based simply on whether there is sufficient evidence in the State for a court to make an informed custody determination.

Finally, the question of who has the connection with the state has been narrowed. Under section 4(2)(i) of the UCCJA, either the child and his/her parents or the child and at least one contestant had to have had a significant connection with the state. Section 201(a)(2) narrows who can have the connection by replacing the term "contestant" with the phrase "parent or a person acting as a parent." As discussed above the phrase "person acting as a parent" is limited to a person who has physical custody or had physical custody for a period of six consecutive months within the year immediately before the commencement of the child custody proceeding and has been awarded legal custody by a court or claims a right to custody under the laws of Illinois. Given the law on standing, this more restricted use of who can bring a significant connection case should provide an argument that there is no jurisdiction when a relative such as a grandparent or a girl or boyfriend seeks to file a custody petition and argues hat the court has jurisdiction because of the existence of a significant connection.

Declination of Jurisdiction by States Having Jurisdiction

The third basis for a court to exercise jurisdiction under the UCCJEA is set forth in section 201(a)(3) describing the situation where courts of other states might have home state or significant connection jurisdiction but that these courts have declined to exercise jurisdiction on the ground that Illinois is the more appropriate forum not for any reason but for reasons set forth regarding convenient forum or because of the actions of a party - sections 207 and 208 of the UCCJEA, respectively. This basis was specified in section 4(4) of the UCCJA but did not include conduct of the parties as a reason for declining jurisdiction. The UCCJA also required a finding that it was in the best interest of the child for the court to exercise jurisdiction which has been eliminated under the UCCJEA.

No Court with Jurisdiction

The fourth basis for a court to exercise custody jurisdiction is set forth in section 201(a)(4) - when no court of any other state would have jurisdiction based upon subparagraphs (1), (2), or (3). The UCCJA also required a finding that it was in the best interest of the child for the court to exercise jurisdiction which has been eliminated under the UCCJEA.

Exclusive Jurisdiction Basis

Section 201(b) should clear up an oft-litigated point in Illinois - does the court need personal jurisdiction of a person to make a custody determination. This section makes clear that the court does not need personal jurisdiction. It states that the bases contained in subsection (a) are the exclusive jurisdictional bases for making a custody determination. The drafters’ notes state:

Personal jurisdiction over, or the physical presence of, a parent or the child is neither necessary nor required under this Act. In other words neither minimum contacts nor service within the State is required for the court to have jurisdiction to make a custody determination. Further, the presence of minimum contacts or service within the State does not confer jurisdiction to make a custody determination.

Exclusive Continuing Jurisdiction

Section 202 establishes a basic approach to subsequent attempted custody proceedings brought in a second state after there has been a custody determination. A court that has made a child custody determination consistent with section 201 exclusively maintains that jurisdiction regarding all subsequent matters relating to its custody determination. The jurisdiction continues unless (1) the court of the issuing state determines that the child, the child’s parents, and any person acting as a parent does not have a significant connection with the state and that substantial evidence is no longer available in the state or (2) a court of the issuing state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the issuing state.

Thus, even if the child has acquired a new home state, the original state retains exclusive continuing jurisdiction if one of the above-named persons still has a substantial connection to it. The UCCJA did not directly address this issue and the drafters note that there have been many inconsistent rulings on this question. They point out that the language of section 202(a)(1) - "a court of this State" - makes it clear that the original decree State is the sole determinant of whether jurisdiction continues and that a party seeking to modify a custody determination must obtain an order from the original decree State that it no longer has jurisdiction.

The one time either the court of the issuing state or the court of another state can make a determination that the issuing state no longer has jurisdiction is when nobody presently resides in the issuing state. The PKPA uses the term "contestant" which is broader than the coverage of section 202. The drafters state that section 202 is purposefully narrower to eliminate the situation where a grandparent claims a right to visitation when the child, the parents, and any person acting as parent have left the issuing state.

Once the issuing state loses jurisdiction because of one of the above two circumstances it can no longer modify its determination.

Jurisdiction to Modify

One of the issues in Illinois has been the question of the jurisdiction of an Illinois court to modify the custody determination of a court of another state. Section 15 of the UCCJA as adopted in Illinois provides that an Illinois court can modify that determination if (1) it appears that the issuing court does not have jurisdiction under the UCCJA or has declined jurisdiction or (2) an Illinois court has jurisdiction under the UCCJA.

This is a change from the version of the UCCJA as originally drafted by the Conference of Commissioners on Uniform State Laws which was written in the conjunctive and the PKPA. Thus, there was a conflict between the Illinois version of the UCCJA and the PKPA. Section 203 of the UCCJEA removes this conflict. It adopts the rule set forth in section 202 that the issuing state maintains jurisdiction over subsequent matters including modification unless the court of the second state where modification is sought also has jurisdiction under section 201 and (1) the court of the original issuing state determines that it no longer has exclusive continuing jurisdiction under Section 202; or (2) that a court of the modification state would be a more convenient forum under the rules of section 207 of the UCCJEA; or (3) a court of either state determines that neither the child, the child’s parents, and any person acting as a parent do not presently reside in the issuing state.

Emergency Jurisdiction

Emergency jurisdiction has been placed in a separate section 204 termed "Temporary Emergency Jurisdiction." Under section 4(3) of the present UCCJA an Illinois court can obtain custody jurisdiction if the child is presently in the state and has either been abandoned or it is necessary in an emergency to protect the child from abuse, neglect, mistreatment, or because the child is dependent. Although case law in Illinois has established this type of jurisdiction to be temporary, the procedures that a court must follow once emergency jurisdiction especially in terms of duration are not settled and once the court has found that it has emergency jurisdiction under the UCCJA, a long period can pass before the matter may be resolved. This uncertainty has occurred even in instances where there was a custody order in an other state.

Section 204 of the UCCJEA is more definitive. It states that emergency is temporary. It applies when a child is present in the state and abandoned, or because the child, or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse. Neglect is not a basis.

Thus, a court in the emergency state can make a custody determination even if there is no jurisdiction under section 201. If there is no previous custody determination from another state or if no custody proceeding is commenced in a court having jurisdiction under the UCCJEA, then any determination made under emergency jurisdiction remains in effect until there is an order from a state that has jurisdiction under the UCCJEA.

If no custody proceeding has been commenced elsewhere and Illinois obtains home state jurisdiction under the UCCJEA, than custody determination made under the court’s emergency authority becomes permanent.

It there is either a custody determination in another state or a pending custody proceeding in another state, than the Illinois court must specify in its order a period that the court deems adequate to allow the person seeking an order to obtain that order from the other state. The drafters state that any custody order made under a statue such as the Illinois Domestic Violence Act must comply with the provisions of the UCCJEA.

When the Illinois court discovers that there is either a custody determination or a custody proceeding that has been commenced, the court is required to immediately communicate with the other court. When the issuing court finds out about a custody determination made under its grant of emergency jurisdiction, the issuing court is required to immediately communicate with the other court to resolve the emergency and protect the child.

The drafters state that when a protective order (order of protection) involves a custody determination, it must comply with the provisions of the UCCJEA and the PKPA. While recognizing the ex parte nature of certain emergency orders of protection, the drafters contend that to be eligible for interstate enforcement, the procedures utilized, most notably notice and the opportunity to be heard, must comply with the UCCJEA.

Simultaneous ProceedingsSection 7 of the UCCJA deals with the question of what a court is to do when it discovers that there is a custody proceeding pending in an another state. Under the UCCJEA, section 206 addresses the same topic. Although the procedures under both statutes are similar--investigation to find a simultaneous proceeding; stay of proceedings if there is one; communication between the courts--section 206 of the UCCJEA is more definite about what happens if a simultaneous proceeding is found. Utilizing the standards for jurisdiction established in section 201, the court with exclusive continuing jurisdiction set forth in section 202 decides what to do. It can maintain jurisdiction in which case the court of the other state is to dismiss the proceeding. It can determine that the court of the other state is the more appropriate forum under section 207 regarding inconvenient forums and defer to it. According to the drafters, there can no longer be a "simultaneous proceeding." Such a notion is inconsistent with the concept of exclusive continuing jurisdiction which is the core of the UCCJEA. It would have been helpful if section 206 had explicitly dealt with the question of what occurs when a second court makes a custody determination and then discovers that another state had exclusive continuing jurisdiction according to sections 201 and 202. There should be no issue. Arguably, the second court has no jurisdiction even though it has made a custody determination. Spelling that out would have helped.

Inconvenient Forum

Section 207 of the UCCJEA maintains the concept of inconvenient forum as it presently appears in section 8 of the UCCJA. There are some changes, however.

The factors relevant to convenience have been changed. One of the issues under the UCCJA was the question of whether a court had jurisdiction in a custody matter brought by a fleeing victim of domestic violence. The courts in this state have generally found that fleeing domestic violence does not provide an Illinois court with child custody jurisdiction. Section 207(b) of the UCCJEA now lists as a factor whether domestic violence has occurred, the likelihood that it would continue in the future, and which state could best protect the parties and the child. Thus, section 207 may provide a basis for arguing that a fleeing victim of domestic violence can have his or her custody determination made in a state that otherwise does not have jurisdiction.

Under section 7(e) of the UCCJA, when a court determined that the court of another state was the more appropriate forum it was to dismiss the action. Section 207(c) changes dismissal to a stay.

Information to be Submitted to the CourtSection 209 of the UCCJEA does not substantially change section 10 of the UCCJA regarding this topic. The one substantial addition in section 209 is the authorization to the court to stay a proceeding when the required information is not submitted. The UCCJA was silent as to what consequences resulted when the requirement was not followed.

Article 3

Enforcement under the UCCJA is contained in the following sections: section 14 recognizing custody judgments of another state that follows the UCCJA; section 16 which provides for filing a certified copy of a custody judgment in Illinois and accords it the same status as an Illinois custody judgment; and section 17 which authorizes circuit court clerks to maintain a registry to enter certified copies of judgments of other states. The drafters’ comments state that enforcement of a custody order in another state under the UCCJA has been a difficult process for the parent who remains in the issuing state and that the lack of a uniform enforcement mechanism has resulted in varying practices and a myriad of different procedural rules that an enforcing parent must understand and follow in the other state.

Article 3 of the UCCJEA provides simple remedies for the enforcement of a custody determination. It establishes a simple uniform registration procedure. It provides for a swift remedy along the lines of habeas corpus. It provides the enforcing court with the ability to itself take possession of the child if circumstances warrant. It establishes a role for prosecutors in the enforcement process.

Procedures for Enforcement

Registration of Child Custody Determinations - Section 305 establishes a uniform procedure for registering a child custody determination by a court of another state including: what a party needs to submit to obtain registration; providing notice to any parent or person acting as a parent; affording them with the opportunity to contest the registration; requiring that such person request a hearing within 20 days after service of the notice and that if no hearing is requested the registration is confirmed as a matter of law and notice of that fact is provided to the same persons. A custody determination can be registered without any request for enforcement.

Enforcement of Registered Determinations - Section 306 provides that a court of the registering state is authorized to grant any relief normally available under the law of that state and that such court shall recognize and enforce, but may not modify the custody determination of the issuing state except as provided in Article 2.

Simultaneous Proceedings - Enforcement is the one time it is appropriate to have simultaneous proceedings under the UCCJEA. Section 307 requires the enforcing court to communicate with the court that has continuing, exclusive jurisdiction at which time the enforcing court shall continue, stay, or dismiss the enforcement proceeding. The drafters state that the ultimate decision on who enforces rests with the court having exclusive, continuing jurisdiction under section 202.

Expedited Enforcement - Section 308 sets forth the requirements for a petition for enforcement. It provides that the normal remedy for such an action in interstate cases is akin to habeas corpus. After the filing of a petition, the enforcement court is to issue an order setting a hearing on the next judicial day after service of the court’s order The only defense if the custody determination order was registered is that the order has been vacated, stayed or modified subsequent to registration by a court with jurisdiction to do so under Article 2. No defense can be based upon the merits.

Service of Petition and Order - Section 309 requires that the petition and order must be served by any method authorized by the law of Illinois upon respondent and any person who has physical custody of the child.

Hearing and Order - Unless the court issues a temporary emergency order pursuant to section 204, or unless there is a defect in procedure or in the jurisdiction of the other state as provided in Article 2, the court is to order that the petitioner may take immediate physical custody of the child. Thus, the scope of inquiry of the enforcement court is limited.

Warrant to Take Physical Custody - Section 311 of the UCCJEA provides that in the case of an emergency because the child is immediately likely to suffer serious physical harm or be removed from this State, the court may issue a warrant to take physical custody of the child including authorization to law enforcement officers to enter private property to take physical custody of the child at any hour.

Costs, Fees, and Expenses - Under section 312, the court shall award the prevailing party in an enforcement action, including a state, the necessary and reasonable expenses incurred by or on behalf of a party including costs, communication expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings unless the party against whom the expenses will be assessed demonstrates that such an award would be clearly inappropriate. The drafters comment that such an award may be inappropriate if its payment would cause the parent and child to seek public assistance.

Recognition and Enforcement - Pursuant to section 313, orders of enforcement are to be enforced by other states under notions of full faith and credit as under the PKPA.

Appeals - Under section 314, appeals from enforcement orders may be taken pursuant to any rules for expedited appeals that presently or in the future may exist. The enforcing court may only issue a temporary emergency order under the temporary emergency rules of section 204. It may not stay an enforcement order pending appeal.

Role of State’s Attorney - Rules 315 - 317 describe the role of the state’s attorney in an enforcement action including an action under the Hague Convention regarding locating the child and returning the child.

Recognition of the Hague Convention  Section 301 of the UCCJEA, in defining who is a party, specifically includes Hague Convention return of children situations. Similarly, section 302 states that an order for the return of a child under the Hague Convention shall be treated as if it were a child-custody determination.

Temporary Visitation  Section 304 of the UCCJEA empowers a court which does not have jurisdiction to modify a child custody determination to issue a temporary order enforcing the visitation schedule made by a court of another state presumably with jurisdiction or the visitation provisions of a child custody determination of another state that does not provide for a specific schedule. In the order, the enforcing court is to specify a period that it considers adequate to allow the petitioner to obtain an order from the court that does have jurisdiction.

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