When is it considered Abduction?

One of the most Frequently Asked Questions for a Family Law Attorney is, “What do I do about the other parent's abduction or kidnapping of our children.” This question raises a variety of legal options in both state and federal court.  The federal courts have specific laws that deal with children and family matters in the Defense of Marriage Act, Federal Criminal laws, and with respect to The Hague Abduction Convention on the Civil Aspects of International Child Abduction. A critical provision of federal law, concerning interstate and custody determinations and disputes, can be found in the Parental Kidnapping Prevention Act (PKPA). The applicable Florida law is the Uniform Child Custody Jurisdiction Act (UCCJA) and the Uniform Child Custody Judicial Enforcement Act (UCCJEA).

Uniform Child-Custody Jurisdiction and Enforcement Act

Florida has a law that specifically addresses the abduction of children from the state. The significant portion of this law “provides for remedies to enforce interstate child custody and visitation determinations.”  There are also provisions of the law that address emergency custody situations and the enforcement of child custody orders entered in other states. Most of these situations involve a parent taking or removing a child from one state to another, in violation of a court order.

When parents do not have any court orders entered to address parenting rights, visitation, decision making, or the other essential details necessary to protect parental rights, both parents must tread carefully. The lack of appropriate custody or visitation orders means that parents have not sought to obtain jurisdiction from any court to establish the kinds of orders that are essential. These orders are necessary when parents are disputing their rights. Law Enforcement will seldom intervene in a parenting dispute, unless the police have a civil court order defining parental rights and a visitation schedule. Therefore, in the absence of a court order that describes the physical care of a child, both parents will have equal rights and the police will usually not interfere or dictate which parent has greater rights than the other.

An abduction of a child usually occurs when a parent takes a child out of the state without consent of the other parent and/or in violation of a court order. Another way that abduction can occur is if the child is “wrongfully retained.”  The wrongful retention of a child means that a parent is under orders to return a child to the other parent, and has failed to do so.  A kidnapping is criminal law that requires the intervention of police.

Notable Cases

There have been many notable cases over the past few years that have involved child abduction and kidnapping, none bigger than the case of David Goldman. David is the father of a child who was kept in South America by the child's maternal grandmother. Over the course of many years, David fought for custody and the return of his son, Sean. By vigorously pursuing his fight in at the state court level, in New Jersey as well as, the court in Brazil, David and Sean were ultimately reunited for their return to the United States.

Any parent who believes that their child has been kidnapped by the other parent or someone else should immediately contact law enforcement.  The best course of action when a child is abducted or removed, in violation of an existing court order, is to have an extremely well-qualified Family Law Lawyer, working aggressively for the preservation of that parent's rights.

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