Miami Family Law Attorneys Capably Manage Child Kidnapping Cases
Determined and effective representation for custodial parents and accused parents
There is nothing more distressing for a parent than the potential loss or disappearance of a child. Even a short lapse of time when your child is unaccounted for can cause you intense anxiety and grief. The fact that your child has been taken by his or her other parent is no source of consolation, especially when you have reason to fear a deliberate attempt to violate your custody order, perhaps permanently. At Rafool, PLLC, our attorneys are experienced in crucial issues where family law crosses from civil to criminal. We provide aggressive representation for custodial parents seeking to recover their children, as well as legal defense for clients accused of parental kidnapping. We understand exactly what is at stake for you and your child, and we pursue every avenue to secure a successful resolution of your case.
When custody order violations amount to kidnapping
Routine violations of a time-sharing plan can expose a parent to court sanctions for contempt. But if the facts of a violation can be interpreted as parental kidnapping, state and possibly federal criminal charges are likely. Florida has a specific statute to address parental kidnapping. Section 787.03 governs interference with child custody:
- By a parent who does not have authority over the child — This offense, involving someone who unlawfully, knowingly or recklessly takes a minor child from the parent, is a third-degree felony.
- By a parent who has authority over the child — It is also a third-degree felony when a parent of a minor “takes, detains, conceals, or entices away that minor…within or without the state with malicious intent to deprive another person of his or her right to custody.”
So, a parent who does not have custody cannot take the child, but neither can a parent who has custody, if that taking intentionally violates the other parent’s custody rights. However, defenses to interference with custody are available if:
- The defendant parent had reasonable cause to believe this action was necessary to save the child from harm.
- The defendant parent was the victim of domestic violence and had reasonable cause to believe the action was necessary to escape from harm or save the child from domestic violence.
- The child instigated the taking and the parent was reasonable to go along.
To preserve these defenses, though, a parent must report the taking of the child to the local sheriff and initiate custody proceedings in a court of law in a manner consistent with the federal Parental Kidnapping Prevention Act or the Uniform Child Custody Jurisdiction and Enforcement Act.
Interstate parental kidnapping law
Because Florida is a state with a large transient population, parental kidnapping cases often cross state lines, making the act a federal offense. Under federal law, kidnapping is a felony, allowing for up to 20 years in prison, depending on the circumstances and an offender’s prior convictions.
Parents hoping to take a child to another state and initiate new custody proceedings must realize that such a situation falls under the federal Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A. This law was created to deter parents from taking their kids across state lines to a venue where they might get a more favorable custody order. It tells a court when it must enforce a custody order from another state and when it may or may not exercise jurisdiction over a custody matter.
Remedies for international kidnapping of children
Miami is a world-class city with a large population of international residents and immigrants. Divorces here are common between spouses who are rooted in the United States and those who want to return to their home country. When children are involved, a custodial parent can live in fear of an international kidnapping. If a parent who is a foreign national succeeds in taking children overseas, the process for repatriating the children can be lengthy and expensive.
Most often, the governing authority is the Hague Convention on the Civil Aspects of International Child Abduction, an international treaty that allows custodial parents to file suit to recover their children. Under the Hague Convention, signatory states agree to give full faith and credit to custody rulings from other signatory states. However, it will not exercise jurisdiction over children 16 years of age or older.
Unfortunately, not all countries are signatory states of the Convention. Most of the Arab world and Africa, and several nations of the Caribbean, Central America and South America are not members. Seeking assistance in non-Hague countries is especially challenging, since most do not have specific international child kidnapping statutes, and you would be confronting a citizen of that nation as a foreigner.
Parents who have realistic fear that an ex-spouse may remove their children to a foreign country should take preventative measures. These include taking possession of your children’s U.S. passports and contacting your ex’s embassy or consulate to prevent the issuance of passports from that country for your children.
Contact our Miami family law firm for parental kidnapping representation
Taking possession of a child in violation of a custody order can give rise to charges of kidnapping and lead to a protracted custody dispute in a foreign venue. No matter what side you are on in such a case, you need determined counsel from an experienced family law attorney. For immediate assistance, call Rafool, PLLC, at (305) 567-9400 or contact our Miami office online to schedule an initial consultation.