International Parental Kidnapping and Child Abduction: Deterrence and Prevention under Florida Law

Benjamin Franklin taught us that "an ounce of prevention is worth a pound of cure."  This idiom rings particularly true in the context of parental kidnapping and abductions.

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:

1. 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.
2. Proof to the court that the respondent has provided the required information.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

See Fla. Stat. § 61.45(3)(d).

The Court may also order supervised visitation with the child to prevent child abduction or parental kidnapping.  See Fla. Stat. § 61.45(3)(e).  This visitation may remain in effect until the court finds that supervision is no longer necessary and require the at-risk parent to pay the costs of supervision.  See Fla. Stat. § 61.45(3)(e).

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:

1. 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.  
2. 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.  
3. 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.  
4. 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.  
5. 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.  
6. 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.  
7. Whether the at-risk party has been diagnosed with a mental health disorder that the court considers relevant to the risk of abduction.

See Fla. Stat. § 61.45(4)(a-m).

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 experienced child custody attorney.

International Parental Kidnapping and Child Abduction: Deterrence and Prevention under Federal and International Law

If your child is at risk of being abducted to a foreign country, you need to be vigilant about your rights, who to call, and what to do if an abduction occurs or is about to occur.

There are a number of federal laws and programs designed to prevent the wrongful removal of children from the United States.  The U.S. Department of State provides a summary of federal and international prevention tools on its website.

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.

The Department of State also operates an Emergency Hotline for abductions that are in progress where the child is being abducted by a family member and the child is not yet abroad.

If your child has already been removed from the country, Department of State’s Bureau of Consular Affairs can open an International Parental Child Abduction Case.  The Bureau of Consular Affairs may also be able to use its resources to assist you in locating your child.

If your child has already been removed from the United States, you may be able to seek relief under international law.  Currently, there are 72 signatories to the Hague Convention on the Civil Aspects of International Child Abduction.  If your child is under 16 years of age and abducted to a country that is a signatory to the Hague Convention, you may be able to obtain a return order under the Convention.  The Hague Conference on Privation International Law publishes an outline summarizing the child abduction aspects of the Hague Convention.

If your child is abducted to a country that is not a signatory to the Hague Convention, you may be able to use that foreign country's legal system to regain custody of your child.

The Department of State operates an Attorney Network, which consists of attorneys with Hague Convention return and access cases.

Lastly, you can ask authorities to file criminal charges against the parent who abducted your child.   The International Parental Kidnapping Act of 1993 makes it a federal crime to remove a child from the United States or retain a child outside the United States with the intent of obstructing the lawful exercise of parental rights.

If you need more information about actions to take to prevent or respond to an international child abduction, The National Center for Missing & Exploited Children, Department of Justice's Office of Juvenile Justice and Delinquency Prevention, and the American Bar Association have made the following publication available:  Family Abduction:  Prevention and Response.  The Department of Justice's Office of Juvenile Justice and Delinquency Prevention also publishes A Family Resource Guide on International Parental Kidnapping.  Both of these publications are full of helpful information.

If you are in Florida, you should be aware of remedies under Florida law to deter the risk of international child abduction or parental kidnapping.  You should also consult an experienced Florida child custody attorney.

Debtor's Prison: Is an Award of Florida Family Law Attorneys' Fees Enforceable by Contempt?

There is much confusion among parties in Florida family law cases - and certain practicing attorneys - regarding which obligations are enforceable by the court's contempt powers.

One of the more common questions that arises is whether a client "has to pay" an award of attorneys' fees ordered by the court.  Generally speaking, no one wants to pay "the enemy."

Long ago, our society determined that we should not have "debtors' prisons."  In other words, a free person cannot be threatened with imprisonment for failure to pay his or her debts.

This right is expressly protected by Article I, Section 11 of the Florida Constitution.  But, the courts  have fashioned an exception to that rule for family support obligations, such as child support and alimony.

The courts have reasoned that the obligation to pay spousal or child support is a personal duty owed to both the former spouse or child and to society rather than a debt within the meaning of article I, section 11.  See Gibson v. Bennett, 561 So. 2d 565, 570 (Fla. 1990).

"The courts have a duty to provide an effective, realistic means for enforcing a support order, or the parent or former spouse for all practical purposes becomes immune from an order for support."    Gibson, 561 So. 2d at 570.  This duty includes enforcement of a judgment through contempt because "a remedy at law that is ineffective in practice is not an adequate remedy."  Id.

The use of contempt in a family law case is premised on the assumed necessity for the special protection and enforcement of rights growing out of the family relationship.  See Fishman v. Fishman, 656 So. 2d 1250, 1252 (Fla. 1995).  This rule has been extended to include the enforcement of payments of attorney's fees related to family law proceedings.  Id.  Attorneys' fees in family law cases are considered a form of support, as the expense of litigating matters pertaining to family obligations should be borne by the family in the same manner as other expenses.

Although the Court may employ its contempt powers to enforce payment of an attorney's fee award, that power is not without limits.  Civil contempt is appropriate only if the party to be held in contempt has the present ability to comply with the court's order and thereby avoid incarceration or other sanctions.  See Bowen v. Bowen, 471 So. 2d 1274, 1278 (Fla. 1985).

Waste and Dissipation Claims: Is There a Statute of Limitations?

In a divorce proceeding, clients often ask how far back the Court will look when assessing whether a party engaged in waste or dissipation of marital assets. Equitable distribution of marital assets is governed by section 61.075, Florida Statutes.

Under section 61.075, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors. Section 61.075(1)(i) requires trial courts to consider intentional dissipation that occurs up to two (2) years prior to filing the petition.

Dissipation occurs where one spouse uses marital funds for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. See Roth v. Roth, 973 So. 2d 580, 585 (Fla. 2d DCA 2008) (citing  Romano v. Romano, 632 So. 2d 207, 210 (Fla. 4th DCA 1994)).

Too often, a divorce attorney will advise clients that you can only prove waste or dissipation that occurred with the past two (2) years. The statute, however, is silent as to intentional waste or dissipation that may have occurred more remotely in time. If your spouse intentionally dissipated marital assets three years prior to the filing date, is there any recourse?

 Courts have held that the legislature did not intend to preclude consideration of waste or dissipation beyond two years. See, e.g., Beers v. Beers, 724 So. 2d 109, 114-15 (Fla. 5th DCA 1998); Amos v. Amos, 99 So. 3d 979 (Fla. 1st DCA 2012).  Intentional dissipation of marital assets occurring more than two years prior to filing a petition for dissolution may, in some instances, be a factor necessary to do equity and justice between the parties.  Clearly, a party should not be able to transfer significant assets outside the marital estate, wait two years, and then file for divorce.  Courts have considered waste and dissipation beyond two years under the catchall provision of section 61.075(1)(j).  Id.  But, the Court has great discretion in deciding whether to consider any evidence of waste or dissipation that occurred more years prior to the filing date.

Be Prepared: Get a Prenup Before Saying "I Do"

Most people like to think that they are prepared for the obstacles that they will face in life.  Like the Boy Scout motto, Americans like to “be prepared.”

And, just in case we are asleep at the wheel, there are people constantly reminding us every step of the way that we should protect ourselves.  It starts early.  For example, a parent might remind us to bring an umbrella – because it might rain.  As we get older, we learn to buy car insurance because we might have an accident.  People buy alarm systems to detect and deter intruders.  Working professionals buy insurance to protect against the unlikely risk of disability.  Most people buy life insurance to hedge against the risk that they might die.  And, if you have a mortgage, homeowner’s insurance is mandatory to protect against risks such as fire and wind.

Americans also like contracts.  Remember the license agreements that you had to accept just to install a game on your computer?  When you went off to college, your first credit card certainly came with a cardholder agreement.  If you wanted to rent an apartment, that definitely required a lease.  Did you want cell phone service?  You needed a contract.  If you go to work at a business, your employer might ask you to sign non-compete agreement.

But, for some strange reason, people enter into marriage with no contract or agreement whatsoever.  They just trust each other.  Remarkably, these are the same individuals who buy the life insurance and disability insurance, even though a 30-year-old man faces a 0.1% chance of dying before age 31 and less than 5% of wage earners are classified as “disabled.”  Yet, they turn a blind eye to the fact that more than 50% of marriages result in divorce.

A prenuptial agreement or “prenup” can protect you against losses that might result from your divorce.  If you don’t have a prenuptial agreement, what do you stand to lose?  You can start with giving away roughly half of the net worth that you worked so hard to accumulate during the marriage.  And, to the extent you earned them during the marriage, you will likely have to divide your pension, retirement benefits, and/or retirement accounts.  You may also have the privilege of paying a large percentage of your monthly salary to your “ex” as alimony.  And, without a prenup, you could be forced to pay off half of your ex’s bad debt.  You could even be saddled with half of your “ex’s” student loans. 

But, there is rarely someone in your corner to remind you about getting a prenup.  Until recently, that is.  Since the Great Recession, 3 out of 4 family law attorneys report that prenups are on the rise.  This may be due to the devastating impact of the financial collapse, which has made people questions how much they can earn in the future and makes them want to keep what they have earned. 

Recently, I have had several parents call my office about prenups for the children.  One retired military officer wanted a prenup for his son, who was about to start flight school.  The father was concerned that his son might lose half of his hard-earned military retirement pay if the marriage didn’t last a lifetime.  A mother recently called me because she had refused to pay for the wedding unless the couple signed a prenuptial agreement.  And, an accountant paying lifetime alimony called me last year in hopes that a prenup might avoid the same fate for his son.

In certain circumstances, a prenuptial agreement can make a marriage more likely to last.  A spouse is more likely to return to work or keep working if that spouse knows he or she cannot rely on alimony in the event that the marriage breaks down.  And, in some cases, a spouse may be less likely to leave or look around if he or she knows that they will not be able to use the divorce to raid the other party’s retirement pay, pension, assets, and income.

Fortunately, despite what you might have heard, prenuptial agreements are enforceable under Florida law.  In 2007, the Florida Legislature passed the Uniform Premarital Agreement Act.  See Fla. Stat. § 61.079(4)(a).  Under the Act, a premarital agreement must be in writing and signed by both parties.  Id.  The Act allows Parties to negotiate and agree upon the following issues: (i) the parties’ rights and obligations concerning any assets and liabilities; (ii) the right to buy, sell, use, transfer, or dispose of property; (iii) the distribution of property upon separation, dissolution, death, or other event; (iv) the right to alimony; (v) the making of a will or trust; and (vi) the disposition of life insurance proceeds.  See Fla. Stat. § 61.079(4)(a).   And, one Florida court specifically held that a prenup may be enforceable to protect a pension and military retirement pay.  See Gordon v. Gordon, 25 So. 3d 615, 617-18 (Fla. 4th DCA 2009).

Florida courts have held that the parties do not need to attorneys for a prenuptial agreement to be enforceable.  See Casto v. Casto, 508 So. 2d 330, 334-35 (Fla. 1987).  The Florida Supreme court has also held, however, that a prenuptial agreement may not be enforceable if the agreement was procured by as a result of fraud, deceit, duress, coercion, misrepresentation, or overreaching.  See Casto, 508 So. 2d at 333.  Additionally, a prenup may be set aside if there is a showing that the agreement is unreasonable on its face for failure to provide adequately for the challenging spouse coupled with a lack of adequate financial disclosure.  Id.  So, even though a lawyer is not absolutely necessary, an agreement is far more likely to be upheld with the assistance of counsel.  

If you have questions about prenuptial agreements, please contact us to consult an experienced Tampa divorce and family law attorney.

Life Insurance to Secure Alimony and Child Support

Clients often ask about whether the Court will require a party to procure life insurance to secure their alimony or child support obligation.  Like many legal questions, the answer is "it depends."

Courts do have the authority to order a party to provide term life insurance to secure his or her child support and alimony payments. See Fla. Stat. §§ 61.08(3), 61.13(1)(c); Sobelman v. Sobelman, 541 So. 2d 1153, 1154 (Fla. 1989). 

When determining whether life insurance is appropriate, the court will consider the need for the insurance, the cost and availability of the insurance, and the financial impact upon the obligor.  See Child v. Child, 34 So. 3d 159 (Fla. 3d DCA 2010); Plichta v. Plichta, 899 So. 2d 1283, 1287 (Fla. 2d DCA 2005). See also Byers v. Byers, 910 So. 2d 336, 346 (Fla. 4th DCA 2005). 

Florida courts have held, however, that certain "special circumstances" must be present to require a payor to purchase life insurance on his or her alimony or child support obligation. See Child v. Child, 34 So. 3d 159 (Fla. 3d DCA 2010); Massam v. Massam, 993 So. 2d 1022 (Fla. 2d DCA 2008); Melo v. Melo, 864 So.2d 1268 (Fla. 3d DCA 2004); Frechter v. Frechter, 548 So.2d 712 (Fla. 3d DCA 1989). 

But, the "special circumstances" are not particularly difficult to prove.  The special circumstances may be present where the former spouse would face difficult financial circumstances if the support payments were to cease upon the death of the obligor.  The circumstances may be present where the surviving party has limited earning capacity or children to support.  See, e.g., Child v. Child, 34 So. 3d 159 (Fla. 3d DCA 2010); Kotlarz v. Kotlarz, 21 So. 3d 892, 893 (Fla. 1st DCA 2009); Richardson v. Richardson, 900 So.2d 656, 661 (Fla. 2d DCA 2005); Massam v. Massam, 993 So. 2d 1022 (Fla. 2d DCA 2008); Davidson v. Davidson, 882 So. 2d 418 (Fla. 4th DCA 2004).

If the special circumstances are present, the Party requesting the life insurance must establish that the amount of insurance sought is available at an affordable cost.  See Massam, 993 So. 2d at 1022; Rubinstein v. Rubinstein, 866 So. 2d 80 (Fla. 3d DCA 2003); Zimmerman v. Zimmerman, 755 So. 2d 730 (Fla. 1st DCA 2000); and Schere v. Schere, 645 So. 2d 21 (Fla. 3d DCA 1994). 

If you have questions about alimony or child support, please contact us to consult an experienced Tampa divorce and family law attorney.