We recently blogged about the deterrence and prevention of parental kidnapping and abduction under federal and international law.
Florida parents and family law attorneys should also know about remedies that are available under state law.
If you have a parenting plan, time-sharing schedule, or custody order in place, and you have evidence that there is a risk the other parent may violate the order by removing the child from Florida, taking the child outside the United States, or by concealing the whereabouts of the child, section 61.45, Florida Statutes, allows a court to enter an injunction to protect the child.
Under section 61.45, the court is broadly empowered to take steps designed to prevent and deter child abduction and international kidnapping.
First, the court may order that a parent may not remove the child from Florida without the notarized written permission of both parents or further court order. See Fla. Stat. § 61.45(1)(a). This provides civil and criminal contempt as remedies if the parent removes the child from the state. An order granting this relief may also provide a basis for a child pickup order in a foreign state.
Second, the court may prohibit a parent from removing the child from this country without the notarized written permission of both parents or further court order. See Fla. Stat. § 61.45(1)(b). If the court places limits on the parent's ability to remove the child from the United States, a certified copy of the order should be sent by the parent who requested the restriction to the Passport Services Office of the United States Department of State requesting that they not issue a passport to the child without their signature or further court order. The Department of State operates the Children's Passport Issuance Alert Program, which alerts parents if anyone applies for a passport for a minor child registered in the Department's Passport Lookout System. This program provides parents advance warning if someone is planning international travel with the minor child. A parent can register any child that is a U.S. Citizen by completing an entry request form.
Third, the court may take a more narrowly tailored approach to limiting a parent's international travel. Specifically, the court may prohibit a parent from taking the child to a country that has not ratified or acceded to the Hague Convention on the Civil Aspects of International Child Abduction. See Fla. Stat. § 61.45(1)(c).
Fourth, and perhaps most importantly, the court may require the at-risk parent to surrender to the court or the petitioner’s attorney any United States or foreign passport issued in the child’s name, including a passport issued in the name of both the parent and the child. A parent may also be enjoined from applying on behalf of the child for a new or replacement passport or visa. Additionally, the Court may require that a party post bond or other security in an amount sufficient to serve as a financial deterrent to abduction, the proceeds of which may be used to pay the reasonable expenses of recovery of the child, including reasonable attorney’s fees and costs, if the child is abducted. See Fla. Stat. § 61.45(1)(d).
If the court imposes one of the foregoing limitations on the parent, the court may also place additional travel restrictions requiring a party to provide a travel itinerary for the child, a list of physical addresses and telephone numbers at which the child can be reached at specified times, and advance copies of all travel documents.
The court is also expressly permitted to prohibit a parent from removing the child from school or a child care or similar facility or even approaching the child at any location other than a site designated for supervised visitation.
As a prerequisite to exercising any time-sharing with the child, the Court may require the at-risk parent to provide the following:
- An authenticated copy of the order detailing passport and travel restrictions for the child to the Office of Children’s Issues within the Bureau of Consular Affairs of the United States Department of State and the relevant foreign consulate or embassy.
- Proof to the court that the respondent has provided the required information.
- An acknowledgment to the court in a record from the relevant foreign consulate or embassy that no passport application has been made, or passport issued, on behalf of the child.
- Proof to the petitioner and court of registration with the United States embassy or other United States diplomatic presence in the destination country and with the destination country’s central authority for the Hague Convention on the Civil Aspects of International Child Abduction, if that convention is in effect between this country and the destination country, unless one of the parties objects.
- A written waiver under the Privacy Act, 5 U.S.C. § 552a, with respect to any document, application, or other information pertaining to the child or the respondent authorizing its disclosure to the court.
- A written waiver with respect to any document, application, or other information pertaining to the child or the respondent in records held by the United States Bureau of Citizenship and Immigration Services authorizing its disclosure to the court.
- Upon the court’s request, a requirement that the respondent obtain an order from the relevant foreign country containing terms identical to the child custody determination issued in this country.
- Upon the court’s request, a requirement that the respondent be entered in the Prevent Departure Program of the United States Department of State or a similar federal program designed to prevent unauthorized departures to foreign countries.
In assessing the need for a bond or other security, the court may consider any reasonable factor bearing upon the risk that a party may violate a parenting plan by removing a child from this state or country or by concealing the whereabouts of a child. Among other things, the court may consider the following:
- Whether a party previously removed a child from Florida or another state in violation of a parenting plan, or whether a court had found that a party has threatened to take a child out of Florida or another state in violation of a parenting plan.
- Whether the party has strong financial, family, and community ties to Florida or to other states or countries, including whether the party or child is a citizen of another country.
- Whether the party has engaged in activities that suggest plans to leave Florida, such as quitting a job, selling a residence, terminating a lease, closing bank accounts, liquidating assets, applying for a passport or visa, or obtaining travel documents for the respondent or the child.
- Whether the party has a criminal record or a history of domestic violence as either a victim or perpetrator, child abuse or child neglect evidenced by criminal history.
- Whether the at-risk party is likely to take the child to a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction and does not provide for the extradition of an abducting parent or for the return of an abducted child. Even if a country has ratified the Hague Convention, the court may still inquire whether the country has adequate mechanisms for enforcement of a U.S. custody order, is safe, and/or has laws that would protect the other parent's relationship with the child, is a sponsor of terrorism.
- Whether the at-risk party is undergoing a change in immigration or citizenship status that would adversely affect the respondent’s ability to remain in this country legally, has had an application for United States citizenship denied, or has forged or presented misleading or false evidence on government forms or supporting documents to obtain or attempt to obtain a passport, a visa, travel documents, a social security card, a driver’s license, or other government-issued identification card or has made a misrepresentation to the United States government.
- Whether the at-risk party has been diagnosed with a mental health disorder that the court considers relevant to the risk of abduction.
If the at-risk parent violates the parenting plan by removing a child from this state or country or by concealing the whereabouts of a child, the court may order the bond or other security forfeited in whole or in part. See Fla. Stat. § 61.45(7)(a).
Significantly, section 61.45 does not apply to a parent is determined by the court to be a victim of an act of domestic violence or provides the court with reasonable cause to believe that he or she is about to become the victim of an act of domestic violence.
In addition to the foregoing remedies under Florida law, a parent whose child is at risk of international kidnapping or child abduction should be familiar with the applicable federal and international deterrents, laws, and remedies. A parent concerned about child abduction should also consult an experience child custody attorney.