In today’s society, it is possible to reach the other side of the globe in a matter of hours via jet, and the Internet has made global communications almost instantaneous. Add to this the fact that multicultural marriage and families are commonplace, in Florida and across the United States. What you now have is a near-perfect storm for parents who want to take their child out of the country during a custody case which may not be turning out as hoped. Those who are afraid the other parent will take their child away without consent, might be able to ask the judge to issue an emergency custody order. Included in that order would be that the other parent is not allowed to take the child out of the state or out of the country. If there is a credible threat of one parent taking the child and leaving the state or country, the other could qualify for a restraining order. While neither of these court-ordered avenues are foolproof, they might at least make the parent contemplating taking a child out of the country think twice about such an action.
Is Taking a Child Out of the Country Considered Kidnapping?
Although you might think the response to this question is obvious, in fact, it is a very complex issue, dependent on a variety of factors. The laws of parental kidnapping vary from state to state, however the International Parental Kidnapping Crime Act of 1993 allows a criminal arrest warrant to be issued for a parent who takes a juvenile under the age of 16 outside the U.S. without the express consent of the other parent. It is important to note, however, that this criminal process allows the arrest of the parent who abducts the child, but does not specifically address the return of the child. The civil process facilitates the return of the child, but does not specifically address the apprehension of the parent. Further, the FBI has no jurisdiction outside the United States except the authority given under the Fugitive Felon Act which is applicable in interstate or international parental kidnappings. It could be against the law to take a child out of the country, or even out of state, only if there is a pending custody case.
Special Worries When One or Both Parents are from a Foreign Country
In any case, divorce, separation and child custody issues take on an entirely new spin, full of unique dangers, when one or both parents are from a foreign country. Once a parent returns with their child to their native country—or any other country, for that matter—there may be little the child’s other parent can do to have the child returned to the U.S. For parents who believe such a scenario could actually play out, there are few ways to prevent such a tragedy, other than limiting the other parent from taking the child out of the country to the extent possible.
Having the Child’s Passport Surrendered to the Court
One way to accomplish this is through the child’s passport—or lack of a passport. If the child already possesses a valid passport, the options become much more limited for preventing the child from being taken out of the country without permission. In most situations, a parent is not allowed to revoke or suspend a child’s passport which was issued in a valid manner. Under certain instances, when a parent is able to convince a Florida judge there is a real danger of a child being taken out of the country, the judge may require the child’s passport surrendered to the court for safekeeping.
If either parent wanted to travel outside the U.S. with the child, the passport would be requested from the court, however the other parent would have the right to be present to offer arguments against that passport return. It is actually rare for a judge to order a child’s passport surrendered to the court; it must be shown it is more than a remote possibility, preferably with evidence showing the other parent is actively planning to take the child out of the U.S.
In other words, the fact one parent may be from a foreign country is not enough, in itself, to convince a Florida court to suspend a child’s passport. Evidence of a plane ticket with your child’s name on it, or the child stating daddy had talked to him about the trip they would be taking, might be enough to result in a passport suspension.
Can One Parent Obtain a Passport Without the Other’s Consent?
If your child does not yet possess a passport, there are additional options for the parent worried about his or her child being take to another country. In 2001, a law was enacted known as the Two Parent Consent Law, which requires that both parents consent to a passport being issued to their child with the following exceptions:
- A parent can show that, despite diligent efforts, the other parent cannot be located;
- There are court orders in place which allow one parent to obtain a passport and travel with the child;
- There are court orders in place showing the parent applying for the child’s passport has been awarded sole custody of the child;
- There is court documentation in place showing the other parent’s parental rights were terminated, or
- A parent can demonstrate there is a “sudden, strong humanitarian reason,” justifying issuance of the child’s passport without the consent of both parents.
Registration with the Children’s Passport Issuance Alert Program
The Two Parent Consent Law has provided at least a measure of protection against the removal of a child from the United States against the wishes of the other parent. Another method of preventing the abduction of a child to a foreign country is registration with the Children’s Passport Issuance Alert Program, which is managed by the U.S. State Department. When a child is registered under this program, if one parent (or anyone else) attempts to secure a passport for the child, the other will be notified.
If the parent who registers with the CPIAP, supplies court documents which clearly show the other parent does not have the legal authority to take the child out of the country, the passport application would be denied. A written request must be submitted to the State Department in order to be eligible to participate in this program.
Steps to Take for the Parent Who Believes There is a Threat of Kidnapping
Obviously, limiting a child’s passport is the first line of defense to minimize the threat of the other parent taking the child out of the country against a court order and/or the other parent’s wishes. If a passport exists for the child, it is much better for it to be in the hands of the court than in a “safe” place at home. Being in control of the child’s passport does not totally remove the threat of the other parent taking the child out of the country; many foreign consulates issue renewal passports to their own nationals without the consent of the other parent. Further, parents worried about their child being taken from the United States should:
- Have clear plans for tracking the child’s whereabouts, including alerting school authorities, the police and perhaps a private investigator if the threat is high. Consider placing a GPS tracking device in the child’s cell phone, clothing, backpack or shoes.
- Contact other family members and discuss the issue with them;
- Contact airlines to discover whether a ticket has been bought in the child’s name;
- Secure an initial temporary restraining order—even though it may not have sufficient “teeth” to be effective, it helps establish a chain of proper action on the part of the parent worried about the removal of his or her child;
- Consider writing a letter to each airline, requesting they prevent the child from boarding an airplane to a location out of state or out of the country, and
- Collect and secure evidence in the event the worst case scenario occurs and the child is taken from the country. It is easy to forget crucial details, but the parent who keeps a detailed journal, may find it easier to obtain the assistance of law enforcement.
What if Your Child Has Already Been Taken from the United States?
Parents who have had their children abducted by the other parent probably feel as though they are hitting one brick wall after another when trying to find their child. This can be frustrating and heartbreaking. There are parents who have spent years attempting to be reunited with their child, and as awful as that sentence sounds, it is important to never give up hope.
There are options available which could result in the return of the child to the U.S. The Hague Convention is one of those options. The Hague Convention is an agreement between 95 countries which sets forth the specific procedures when a child of one country is “wrongfully removed or retained” in another. Such removal of a child is considered “wrongful” when it:
- Breaches custody rights given to a parent under the laws of the United States in the state where the child resided prior to removal from the country, and
- At the time the child was removed, the custody rights were being exercised—or would have been exercised—if the child had not been removed.
When a child is taken to another country after residing in Florida, and is located in that country, if that country is a member of The Hague Convention it will return the child to the state of Florida. While the exact procedures are left up to each country, the return of the child are to be accomplished swiftly and without delay. Parents in Florida who have had their child unlawfully removed from the country can have their attorney speak to the U.S. State Department for assistance in implementing The Hague Convention, if the parent is fairly certain of where the child was taken. If the parent has no idea where his or her child has been taken by the other parent, there are other avenues which could help locate the child. These include:
- Florida local and state law enforcement agencies;
- The Office of Children’s Issues at the U.S. State Department;
- United States Embassies and Consulates;
- The FBI, and
- The National Center for Missing and Exploited Children.
The Challenges of Florida Custody Cases When Removal of the Child is an Issue
When children are the subject of Florida child custody disputes, the challenges can be even greater when one or both parents are foreign-born. Emotions run high during divorce and child custody, and the parent who takes a child out of the country may actually believe he or she is doing it in the child’s best interests. A foreign-born parent may also just want to go “home”—with their child. Regardless of the reasons, it is difficult for the Florida parent to live in constant fear that every time the child visits the other parent it could be the last time the parent ever sees the child. Despite the fact there are laws in place to assist parents whose children have been removed from the country, in practice, international child abduction cases can result in messy conflicts between the laws and courts of different cultures.
There may be a serious clash of societal views regarding parental and children’s rights from one country to another, and despite laws to the contrary, a country may drag its feet in returning a child. A Florida judge may be uncomfortable evaluating another country’s legal system, however the judge is an integral link to the return of the child. Establishing a foreign country’s legal system in international child custody cases can be ineffective, slow, or downright corrupt, therefore prevention of the removal of the child to another country is necessary, and all steps should be taken if even the slightest threat exists. Having an experienced Ayo and Iken Florida custody attorney by your side who understands the applicable laws to international abduction cases can be crucial during such a traumatic time.