18 Mar When a Parent Takes Your Child Without Permission in Florida
Summary
When a parent takes a child without permission in Florida, the affected parent may pursue criminal remedies under Sections 787.03 and 787.01, Florida Statutes, and civil remedies including emergency warrants under Section 61.534, UCCJEA jurisdiction under Sections 61.501 to 61.542, and travel restrictions under Section 61.45. The applicable tools depend on whether a court order exists, where the child is located, and whether domestic violence or child-welfare concerns are present.
When a parent takes a child without permission in Florida, the situation demands immediate and decisive legal action. Whether the other parent has violated an existing parenting plan, removed the child across state lines, or concealed the child’s whereabouts entirely, Florida law provides a robust framework of civil and criminal remedies designed to protect children and to restore lawful custody arrangements. For parents in South Florida, understanding those remedies and how to deploy them is critical. This article provides the foundational legal analysis every affected parent should understand before taking the next step.
Florida’s legal response to a parent who takes a child without permission is multi-layered. On the criminal side, the Legislature has criminalized parental interference with custody as a third-degree felony and, in more extreme circumstances, has made such conduct actionable under Florida’s kidnapping statute. On the civil side, the Uniform Child Custody Jurisdiction and Enforcement Act governs which state’s courts have authority to address the matter, and the Florida Rules of Family Law Procedure provide emergency mechanisms that can result in a warrant compelling the child’s return within a single business day. In addition, Florida’s parenting plan statutes authorize prospective travel restrictions to prevent repeat violations. Each layer of this framework operates somewhat independently, and the best strategy for a particular family depends heavily on the specific facts at hand, including whether a court order already exists, where the child is currently located, and whether any safety concerns are present.
The analysis that follows proceeds in a structured manner designed to guide practitioners, law students, and informed laypersons through the governing statutory and case-law framework. The article begins with a threshold triage question that shapes every other analysis, proceeds through the criminal exposure provisions, and then addresses the jurisdictional, emergency, and preventive civil tools. Throughout, the focus remains on primary legal authority: Florida statutes, the Florida Rules of Family Law Procedure, and Florida appellate decisions interpreting these provisions. At the conclusion, the article provides a summary paragraph designed for quick reference, an FAQ section addressing the questions clients most commonly raise, and a closing section describing how the Law Firm of Jeffrey Alan Aenlle, PLLC can assist families in the Miami area.
The Threshold Question: Does a Court Order Already Exist?
The single most important threshold question in any matter involving a parent who takes a child without permission is whether a court order governing custody, time-sharing, or a parenting plan is already in place. That determination is not merely procedural; it fundamentally shapes which legal tools are available and what standard of proof will govern the resulting proceedings.
When no court order exists, the taking parent may be subject to criminal liability under Section 787.03, Florida Statutes, which addresses interference with custody in the absence of a court order determining rights to custody or visitation. Specifically, that statute makes it a third-degree felony for a parent, or other person listed in the statute as having custody or care of a minor, to take, detain, conceal, or entice away a minor with malicious intent to deprive another person of his or her right to custody. The absence of a court order does not mean the taking parent acts lawfully; rather, it means that the criminal-law pathway under Section 787.03 is explicitly available, while the civil enforcement tools that depend on an existing order are not yet operational.
When a court order does exist, the landscape shifts considerably. A parenting plan or time-sharing order issued by a Florida court is a binding judicial directive, and violations of that order open the full range of civil enforcement mechanisms: emergency motions for contempt, petitions for modification, and, in the most urgent circumstances, a warrant to take physical custody of the child under Section 61.534, Florida Statutes. Additionally, prospective restrictions under Section 61.45, Florida Statutes, become relevant both to remediate the current violation and to prevent recurrence. Experienced Miami family law attorneys therefore begin every initial consultation in these matters by examining whether any prior order exists, how precisely it defines each parent’s rights, and what the order says, if anything, about travel or relocation.
In both the order and no-order scenarios, the best-interests-of-the-child standard that permeates Florida family law remains the foundational principle. Courts in Miami-Dade County and throughout Florida are guided by Section 61.13, Florida Statutes, which sets forth the factors governing time-sharing determinations. When a parent takes a child without permission, that conduct is directly relevant to several of those factors, including the demonstrated capacity and disposition of each parent to facilitate a close and continuing parent-child relationship, the capacity and disposition of each parent to honor the time-sharing schedule, and any acts of domestic violence or history of substance abuse. Thus, even where the immediate legal tool is a criminal complaint or emergency motion, the long-term consequences for the offending parent’s custody rights can be significant.
Criminal Liability: Interference With Custody and Kidnapping Under Florida Law
Interference With Custody Under Section 787.03, Florida Statutes
Florida’s interference-with-custody statute, Section 787.03, Florida Statutes, establishes criminal liability for a parent or enumerated caregiver who, in the absence of a court order determining rights to custody or visitation, takes, detains, conceals, or entices away a minor with malicious intent to deprive another person of his or her right to custody. Conviction carries third-degree felony exposure under Florida law, which ordinarily means a potential sentence of up to five years in state prison and a fine of up to five thousand dollars under Section 775.082 and Section 775.083, Florida Statutes.
The phrase “malicious intent to deprive” is a mental-state requirement that typically distinguishes a criminal taking from a civil time-sharing dispute. Parents who take a child in a good-faith but mistaken belief about their own rights, or who take a child temporarily in response to an emergency, may have a different exposure profile than those who act with the deliberate purpose of cutting the other parent out of the child’s life. That said, Florida courts do not require proof of hostile emotions; the malicious-intent element may be inferred from the totality of the circumstances, including the duration of the deprivation, the degree of concealment, and the absence of any communication with the other parent.
The statute also provides a significant exception that practitioners must carefully evaluate. Under the express terms of Section 787.03, the criminal prohibition does not apply where the person with a legal right to custody is a victim of domestic violence, or reasonably believes that he or she is about to become a victim of domestic violence, or believes that the action was necessary to preserve the child from danger to the child’s welfare and seeks shelter while taking the child. This exception can arise in Miami-Dade County domestic violence cases where the taking parent claims they fled a dangerous household with the child. Evaluating the viability of this exception requires a careful factual inquiry, and prosecutors and civil attorneys alike must take it seriously at every stage of a case.
Kidnapping Under Section 787.01, Florida Statutes
Florida’s kidnapping statute, Section 787.01, Florida Statutes, defines the offense as forcibly, secretly, or by threat confining, abducting, or imprisoning another person against their will and without lawful authority, with intent to accomplish one of four enumerated purposes: to hold the victim for ransom or as a hostage, to commit or facilitate the commission of any felony, to inflict bodily harm upon or to terrorize the victim or another person, or to interfere with the performance of any governmental or political function. Kidnapping is a first-degree felony punishable by up to life imprisonment, making it a substantially more serious offense than interference with custody.
For purposes of applying the kidnapping statute to child-custody scenarios, Section 787.01 contains a critical evidentiary provision: confinement of a child under the age of thirteen is considered to be against the child’s will if it is without the consent of the child’s parent or legal guardian. This provision acknowledges that young children cannot meaningfully consent to confinement, and it establishes a straightforward method of proving the “against the will” element in cases involving very young children. The Florida Supreme Court’s analysis in Davila v. State, 75 So. 3d 192 (Fla. 2011), confirms that the kidnapping statute requires proof of an overt act of forceful, secretive, or threatening confinement or abduction or imprisonment, combined with one of the statute’s specific intents, and that the provision for proving “against the will” for children under thirteen operates as a statutory mechanism for satisfying that element.
Because kidnapping requires specific intent elements beyond merely taking or withholding a child, not every situation in which a parent takes a child without permission will satisfy the statutory definition. A parent who takes a child without notifying the other parent, conceals the child’s whereabouts, and does so to prevent the other parent from exercising time-sharing rights may well be prosecuted under Section 787.03 for interference with custody, but may not have committed kidnapping unless one of the four enumerated intents can be proven. Practitioners in Miami-Dade County who are advising clients or filing police reports should be prepared to explain this distinction carefully to law enforcement, because officers on the scene often have difficulty determining which statute applies and whether to make an arrest or refer the matter to family court.
Interstate Custody Disputes: The UCCJEA’s Home-State Framework
Jurisdiction Under the Uniform Child Custody Jurisdiction and Enforcement Act
When a parent takes a child without permission across state lines, the question of which state’s courts have authority to address the matter becomes paramount. Florida has adopted the Uniform Child Custody Jurisdiction and Enforcement Act, codified at Sections 61.501 through 61.542, Florida Statutes. As the Florida Third District Court of Appeal confirmed in Schaffer v. Ling, 76 So. 3d 940 (Fla. 3d DCA 2011), subject-matter jurisdiction over child custody matters in Florida is governed by the UCCJEA, codified at sections 61.501 through 61.542, Florida Statutes.
The UCCJEA’s foundational jurisdictional rule is set forth in Section 61.514, Florida Statutes, which provides that the home-state standard is the exclusive basis for an initial child custody determination. Under that provision, Florida generally has jurisdiction if Florida is the child’s home state on the date the custody proceeding is commenced, or if Florida was the child’s home state within the six months preceding commencement and the child is now absent from Florida but a parent continues to reside in Florida. The home state is defined as the state in which the child lived with a parent for at least six consecutive months immediately before the commencement of the proceeding.
The stated purposes of the UCCJEA, codified in Section 61.502, Florida Statutes, illuminate why the home-state framework matters so much in parental-taking cases. Those purposes include avoiding jurisdictional competition and conflict with other states over custody determinations, discouraging the use of the interstate system for continuing conflicts over child custody, deterring abductions, and promoting cooperation with the courts of other states. When a parent removes a child from Florida to another state in an attempt to obtain a more favorable custody order, the UCCJEA is specifically designed to thwart that strategy by anchoring jurisdiction in the child’s home state rather than allowing jurisdiction to follow the child to wherever the taking parent has fled.
Miami-Dade County family law practitioners frequently encounter UCCJEA issues because South Florida is a gateway to both domestic and international travel. A parent living in Miami who removes a child to another state, or who removes a child to a foreign country, triggers different but related frameworks. The UCCJEA governs domestic interstate disputes, while international child abduction cases involving countries that are signatories to the Hague Convention on the Civil Aspects of International Child Abduction are governed by the International Child Abduction Remedies Act at the federal level, in conjunction with Florida’s implementing statutory provisions. The interaction between these frameworks can be complex, and immediate legal counsel from a Miami family law attorney who has experience in both domestic and international child abduction matters is essential.
UCCJEA Home-State Jurisdiction and Strategic Considerations
From a strategic perspective, a parent in Miami whose child has been taken to another state should immediately evaluate whether Florida is the child’s home state under the UCCJEA. If it is, or if Florida was the home state within the preceding six months and the client remains in Florida, the client’s attorney should file a custody or enforcement action in the appropriate Florida circuit court without delay. Delay can be harmful because the longer a child resides in another state without a custody proceeding in Florida, the stronger the argument becomes that the other state has acquired home-state jurisdiction. As the UCCJEA’s purposes reflect, Section 61.502 is designed to prevent precisely this kind of jurisdictional manipulation, but courts are required to apply its rules as written, and the rules do change over time based on the child’s actual residence.
Courts in the Eleventh Judicial Circuit, which serves Miami-Dade County, are familiar with UCCJEA jurisdiction disputes. When both Florida and another state claim jurisdiction, or when jurisdiction is genuinely ambiguous, the statutes authorize judicial communication between courts of different states. Section 61.508, Florida Statutes, provides that a Florida court may communicate with a court in another state for the purpose of resolving the jurisdictional question. These interstate judicial communications are not evidentiary hearings; they are judicial conferences designed to avoid duplicative proceedings and to determine which forum is the more appropriate one. Understanding this mechanism and how to initiate or participate in it is an important part of high-conflict interstate custody practice.
Emergency Civil Remedies: Warrants, Emergency Orders, and Rapid Relief
The Warrant to Take Physical Custody Under Section 61.534, Florida Statutes
When a parent takes a child without permission and the situation presents imminent danger to the child, Florida law provides one of the most powerful and swift civil remedies available in any family law context: the warrant to take physical custody of a child. Section 61.534, Florida Statutes, authorizes a court to issue such a warrant if the court finds, based on testimony, that the child is likely to imminently suffer serious physical harm or be removed from Florida. The hearing requirement is compressed to the next judicial day after execution of the warrant, unless that is impossible, in which case the first possible judicial day applies.
The warrant issued under Section 61.534 must contain specific recitals to be legally sufficient. It must recite the facts supporting the finding of imminent serious physical harm or removal from the jurisdiction. It must direct law enforcement officers to take physical custody of the child immediately upon executing the warrant. And it must provide for the placement of the child pending the final relief ordered by the court. These requirements ensure that the emergency mechanism is not abused; a court cannot simply issue a broad directive to retrieve a child based on a vague allegation. The petitioner must present actual testimonial evidence sufficient for the court to make the required findings and to articulate those findings in the body of the warrant.
For Miami families, the practical implication of Section 61.534 is that a parent who fears their child is about to be taken out of Florida, or who has reason to believe a taken child is in imminent physical danger, can seek emergency judicial relief on an expedited basis. Miami-Dade family law courts are experienced with these emergency petitions, and the Eleventh Judicial Circuit has procedures for emergency hearings that allow qualified petitions to be heard on the same day they are filed. A parent seeking this relief should work with an experienced Miami family law attorney to prepare the petition, gather testimonial evidence of imminent harm or imminent removal, and present the matter to the court in a legally sufficient manner. The stakes are too high to attempt this process without counsel.
Emergency Motions and Temporary Injunctions in Existing Parenting Plan Cases
In cases where a parenting plan or time-sharing order already exists and has been violated, the non-offending parent has access to a range of emergency civil remedies in addition to the warrant mechanism. Florida Rule of Family Law Procedure 12.610 governs injunctions for protection in domestic violence cases, while broader emergency injunctive relief in custody matters is available under Rule 12.020 and the general equity jurisdiction of the circuit court. An emergency motion for civil contempt and enforcement under Rule 12.615, combined with a verified motion for immediate return of the child, is typically the first pleading filed in these situations.
Civil contempt in the custody context requires proof that a valid court order was in place, that the respondent had knowledge of the order, and that the respondent willfully violated the order. A parent who knowingly took the child during the other parent’s designated time-sharing period and refused to return the child is an archetypal civil contempt respondent. Upon a finding of contempt, the court has broad remedial powers including ordering the return of the child, awarding make-up time-sharing, shifting attorney’s fees under Section 61.16, Florida Statutes, modifying the parenting plan to restrict the offending parent’s rights, and, in the most egregious cases, incarcerating the offending parent until compliance is achieved.
The Florida Third District Court of Appeal, which reviews decisions from Miami-Dade County, has addressed numerous emergency custody and enforcement cases arising from parental takings. The appellate courts uniformly emphasize that the trial court’s overriding obligation in these matters is to protect the best interests of the child, and that emergency relief should be fashioned to serve that purpose without unnecessarily punishing either parent. At the same time, the courts have made clear that a parent who deliberately violates a parenting plan by taking a child without permission faces serious consequences in subsequent modification proceedings, because such conduct reflects directly on that parent’s ability to foster the child’s relationship with the other parent as required by Section 61.13(3)(m), Florida Statutes.
Preventive Measures: Travel Restrictions and Parenting Plan Modifications
Court-Ordered Travel Restrictions Under Section 61.45, Florida Statutes
Florida law recognizes that the best resolution to a parental-taking case is not merely to retrieve the child and return to the status quo, but rather to restructure the legal framework governing the family in a way that meaningfully reduces the risk of recurrence. Section 61.45, Florida Statutes, is the primary statutory tool for this purpose. It provides that in proceedings where the court enters a parenting plan that includes a time-sharing schedule, upon competent substantial evidence of risk that a party may violate the plan by removing the child from Florida or from the country or by concealing the child’s whereabouts, or upon stipulation of the parties or a finding of credible risk, the court may impose travel and removal restrictions designed to prevent a repeat violation.
The restrictions authorized by Section 61.45 include, among others, a prohibition on removing the child from Florida or from the country without the notarized written permission of both parents or a further court order. Courts may also require that the child’s passport be surrendered to the court or held by a neutral party, that the traveling parent provide itinerary information in advance, that the traveling parent post a bond, and that any travel to countries that are not signatories to the Hague Convention be prohibited entirely. These measures are especially relevant in Miami-Dade County, where international travel is routine and many families have connections to Latin America, the Caribbean, and Europe. A child taken to a country that does not participate in the Hague Convention’s return framework is far more difficult to recover, making prospective travel restrictions under Section 61.45 a critical component of any enforcement plan.
To obtain travel restrictions under Section 61.45, the moving parent must present competent substantial evidence of the risk. Courts in South Florida have found such evidence in a variety of circumstances: a prior episode of unauthorized removal, a parent’s statements or communications suggesting an intention to relocate without consent, a parent’s acquisition of travel documents for the child without the other parent’s knowledge, the existence of one-way airline tickets, the liquidation of assets suggesting preparation for a permanent departure, or a prior history of making false statements about travel plans. Practitioners should gather all available evidence on these points before filing the motion, because the burden of demonstrating risk falls on the moving party at the initial hearing.
Parenting Plan Modification Following an Unauthorized Taking
Beyond prospective travel restrictions, an unauthorized parental taking may provide grounds for a modification of the existing parenting plan. Under Section 61.13(3), Florida Statutes, a court may modify a parenting plan if the modification serves the best interests of the child and a substantial change in circumstances has occurred that was not contemplated at the time of the original order. Florida courts have recognized that a parent’s deliberate violation of a custody order, including an unauthorized taking, constitutes a substantial change in circumstances sufficient to support modification proceedings.
The modification analysis then turns to the best-interests factors set forth in Section 61.13(3), Florida Statutes. The court will examine, among other things, whether the offending parent’s conduct reflects a demonstrated capacity and disposition to facilitate a close and continuing parent-child relationship with the other parent, Section 61.13(3)(c); whether the taking involved domestic violence, Section 61.13(3)(t); and whether the taking reflects evidence of substance abuse, Section 61.13(3)(s). In the most extreme cases, where the offending parent’s conduct is sufficiently serious and repeated, a court may restructure the parenting arrangement to restrict the offending parent to supervised time-sharing or, in the most egregious circumstances, to suspend time-sharing entirely pending further proceedings.
Miami-Dade County family law attorneys who represent either party in a modification proceeding following a parental taking should expect the proceedings to be vigorously contested. The offending parent will often assert justifications for the taking that, even if legally insufficient, must be addressed factually and legally. The non-offending parent, for their part, must be prepared to demonstrate not only the violation itself but also the causal connection between the violation and the specific modification sought. Documentary evidence, including text messages, emails, school records, travel records, and financial records, often plays a decisive role in these proceedings.
Domestic Violence Considerations and the Statutory Exception
The intersection of parental taking and domestic violence is one of the most complex and sensitive areas of Florida family law. As noted above, Section 787.03, Florida Statutes, contains an express exception from criminal liability where the person with a legal right to custody is a victim of domestic violence or reasonably believes they are about to become a victim of domestic violence, or believes the action was necessary to preserve the child from danger to the child’s welfare and seeks shelter while taking the child. This exception reflects the Legislature’s recognition that in some circumstances, a parent may take a child out of a genuine and reasonable fear for the child’s safety or their own safety.
From the perspective of the parent who took the child, invoking this exception requires more than a vague allegation of abuse. Florida courts in the Eleventh Judicial Circuit and elsewhere have interpreted analogous domestic-violence exceptions to require a reasonable, objective basis for the fear of imminent harm. A parent who claims the exception must be prepared to document the history of domestic violence through police reports, prior injunctions, medical records, photographs, witness statements, and similar evidence. The taking parent should also promptly seek a domestic violence injunction under Section 741.30, Florida Statutes, which, if granted, can provide additional legal protection and can serve as corroborating evidence of the circumstances that prompted the taking.
From the perspective of the parent whose child was taken, the domestic violence exception requires a response that is carefully calibrated to avoid appearing to minimize genuine safety concerns while still pressing the legal rights of the client. If the allegations of domestic violence are fabricated or exaggerated, that fact must be demonstrated through factual investigation and presented at hearing. If the allegations have some foundation but do not rise to the level required by the exception, the legal analysis must be made clearly. Miami family law attorneys routinely navigate this tension, and the key principle is that the best interests of the child, including the child’s safety, must remain the focus of every argument and every remedy sought.
Practical Steps for Parents in Miami When a Child Is Taken Without Permission
For a parent in Miami, Coral Gables, Hialeah, Doral, or anywhere else in Miami-Dade, Broward Counties who is facing a parental-taking situation, there is a predictable sequence of steps that experienced counsel will recommend. First, the parent should contact local law enforcement immediately, both to report the taking and to create an official record. The parent should provide law enforcement with whatever information is available about the taking parent’s location, the child’s likely whereabouts, any relevant court orders, and any information about potential travel plans. Whether law enforcement ultimately makes an arrest under Section 787.03 or Section 787.01 depends on the facts, but a timely police report is essential documentation for subsequent civil proceedings.
Second, the parent should retain a Miami family law attorney immediately. The time-sensitive nature of parental-taking cases cannot be overstated. If the taking parent is still in Florida and the child is at risk of being removed, every hour counts. An experienced attorney can file an emergency motion for return of the child, seek a warrant under Section 61.534 if the statutory requirements are met, and contact the court’s emergency duty judge if the courthouse is closed. In Miami-Dade County, the Eleventh Judicial Circuit family division has procedures for emergency filings, and practitioners who handle these cases regularly are familiar with how to navigate those procedures effectively.
Third, the parent should document everything. Text messages and emails from the taking parent, social media posts suggesting travel or relocation, records of missed exchanges, school absence records, and any other evidence bearing on the child’s location and the taking parent’s plans should be preserved immediately. Electronic evidence can disappear quickly, and a parent who waits to gather evidence risks losing critical proof. Simultaneously, the parent should contact the child’s school and health care providers to request notification if the taking parent attempts to withdraw or transfer the child’s records, and to alert them that the child should not be released to the taking parent outside of the parenting plan schedule if one exists.
Fourth, if there is any reason to believe the child may be taken out of the country, the parent should immediately contact the National Center for Missing and Exploited Children, the United States Department of State’s Office of Children’s Issues, and the child’s school to flag the passport. The State Department’s Children’s Passport Issuance Alert Program allows a parent to register the child’s name so that any passport application in the child’s name triggers a notification. In Miami, where international departure options are abundant through Miami International Airport and Fort Lauderdale-Hollywood International Airport, acting swiftly to prevent an international departure is essential.
Conclusion
The unauthorized taking of a child by a parent in Florida implicates a sophisticated and overlapping body of criminal and civil law. Under Section 787.03, Florida Statutes, a parent who takes, detains, conceals, or entices away a minor with malicious intent to deprive another person of their custody rights, in the absence of a court order, commits a third-degree felony subject to the statute’s domestic-violence and child-welfare exception. Under Section 787.01, Florida Statutes, and as interpreted by the Florida Supreme Court in Davila v. State, 75 So. 3d 192, kidnapping provides a more serious criminal remedy when the overt-act and specific-intent elements can be proven.
On the civil side, Florida’s adoption of the Uniform Child Custody Jurisdiction and Enforcement Act at Sections 61.501 through 61.542, Florida Statutes, anchors jurisdiction in the child’s home state and, as confirmed by Schaffer v. Ling, 76 So. 3d 940, protects Florida courts’ authority to address custody matters when Florida is the home state. Section 61.534 provides a powerful emergency remedy in the form of a warrant to take physical custody, while Section 61.45 authorizes the full range of prospective travel and removal restrictions necessary to prevent recurrence. Throughout all of these proceedings, the best interests of the child, as defined by the comprehensive framework of Section 61.13, Florida Statutes, remains the lodestar of Florida family law.
For families in Miami and throughout South Florida, navigating these provisions requires experienced legal counsel who understands both the urgency of the situation and the legal precision required to obtain effective relief. The Law Firm of Jeffrey Alan Aenlle, PLLC is dedicated exclusively to Florida family law and stands ready to advise and represent parents facing these exact circumstances.
TLDR: When a parent takes a child without permission in Florida, the affected parent may pursue both criminal remedies under Sections 787.03 and 787.01, Florida Statutes, and civil remedies including emergency warrants under Section 61.534, UCCJEA-based jurisdiction under Sections 61.501 to 61.542, and travel restrictions under Section 61.45. The applicable tools depend on whether a court order exists, where the child is located, and whether domestic violence or child-welfare safety concerns are present. Immediate contact with law enforcement and a Miami family law attorney is essential.
What should I do first if my co-parent takes my child without permission in Florida?
The first step is to contact local law enforcement to report the taking and to create an official record of the incident. Simultaneously, you should retain a Miami family law attorney who can assess whether an emergency motion, a warrant under Section 61.534, Florida Statutes, or a criminal complaint under Section 787.03 is the appropriate immediate remedy. Time is critical in these situations, and prompt action significantly improves the likelihood of a swift resolution.
Is it a crime in Florida for a parent to take a child without permission?
Yes, under certain circumstances. Section 787.03, Florida Statutes, makes it a third-degree felony for a parent to take, detain, conceal, or entice away a minor with malicious intent to deprive another person of their custody rights, provided no court order exists determining custody or visitation. If the conduct involves forcible confinement or abduction combined with one of the specific intents enumerated in Section 787.01, Florida Statutes, the more serious offense of kidnapping may apply, as analyzed by the Florida Supreme Court in Davila v. State, 75 So. 3d 192.
What is the UCCJEA, and why does it matter when a child is taken across state lines?
The Uniform Child Custody Jurisdiction and Enforcement Act, codified at Sections 61.501 through 61.542, Florida Statutes, governs which state has subject-matter jurisdiction to make a child custody determination when the child has been taken across state lines. As confirmed in Schaffer v. Ling, 76 So. 3d 940, Florida has jurisdiction when it is the child’s home state, meaning the state where the child lived for at least six consecutive months immediately before the custody proceeding was filed. The UCCJEA’s purposes include deterring abductions and preventing a parent from obtaining a more favorable custody order simply by removing a child to another state.
Can a Florida court issue a warrant to retrieve my child?
Yes. Section 61.534, Florida Statutes, authorizes a Florida court to issue a warrant to take physical custody of a child if the court finds, based on testimony, that the child is likely to imminently suffer serious physical harm or be removed from Florida. The warrant directs law enforcement to take physical custody immediately, and a hearing must be held on the next judicial day after execution. Petitioners must present actual testimonial evidence supporting the required statutory findings, and the warrant must recite those facts on its face.
What travel restrictions can a Florida court impose to prevent future unauthorized takings?
Under Section 61.45, Florida Statutes, a court may impose a range of travel and removal restrictions upon competent substantial evidence that a party is at risk of removing the child from Florida or the country, or of concealing the child’s whereabouts. These restrictions may include requiring notarized written consent of both parents before any international travel, surrendering the child’s passport to the court, posting a bond, and prohibiting travel to countries that do not participate in the Hague Convention framework. These preventive measures are particularly important in Miami-Dade County given the region’s extensive international travel connections.
Does a domestic violence situation change the legal analysis?
Yes. Section 787.03, Florida Statutes, contains an express exception from criminal liability for a parent who takes a child in circumstances where that parent is a victim of domestic violence, reasonably fears imminent domestic violence, or believes the taking is necessary to preserve the child from danger to the child’s welfare and seeks shelter while doing so. This exception requires an objective, reasonable basis for the fear and does not excuse an indefinite concealment of the child. Parents in this situation should promptly seek a domestic violence injunction under Section 741.30, Florida Statutes, document the history of abuse, and consult with a Miami family law attorney about how to structure their legal strategy.
Speak With a Miami Family Law Attorney Today
If a parent has taken your child without permission, or if you are concerned that your child may be removed from Florida without authorization, the Law Firm of Jeffrey Alan Aenlle, PLLC is prepared to help. To schedule a consultation, contact us by telephone at +1.786.309.8588. The firm serves clients throughout South Florida. Do not wait. The sooner you act, the better your chances of protecting your child and your parental rights.