Welcome back to the Ayo & Iken legal roundtable. We tackle the toughest legal issues with down-to-earth commentary you can use from our expert panel of attorneys which spans Florida from Tampa and Orlando to Miami.
In this edition, our roundtable will discuss maybe the most trying and terrifying circumstance that can occur as a relationships unravel into divorce: what do you do if your spouse either threatens or makes good on promises to take your children out-of-state or out of the country.
Now let’s talk to our panel. We talked about these issues with a legal team gathered for the day.
They are answering the question: What do I do if my spouse intends to take the children out of state or out of the country?
There’s nothing you can do if there is no divorce pending. But if you have filed something and one party takes the kids and goes somewhere you can file an emergency motion. And if someone goes across state lines the Uniform Child Custody Jurisdiction and Enforcement Act comes into play which allows judges from different states to talk and determine the jurisdiction of a child custody case. Judges will talk and defer to one another depending on where residency of a child can be established. Usually it’s a child living somewhere for six months or more, so the first six months are crucial. If you spouse leaves with your child don’t wait for the other side to establish residency somewhere.
Without court orders in place the risk is great as parents have the right to take their children anywhere if there is nothing filed in court. And law enforcement is likely going to be reluctant to get involved in civil family matters if there is no court order.
Also, be wary of threats during a divorce of taking children out of the country because United States law enforcement loses jurisdiction at that point. For instance, you may have heard of the case of actress Kelly Rutherford which is making national news. She lost custody of her children who were taken to Monaco by her ex-husband.
With that said, it can be important to bone up on how law enforcement does handle cases of parental kidnapping. Before we get to our expert panel, here are some basics provided by the FBI on its website fbi.gov:
“How is a missing child defined? By law (specifically the 1982 Missing Children’s Act), it’s any person younger than 18 whose whereabouts are unknown to his or her legal custodian. Under the act, the circumstances surrounding the disappearance must indicate that the child was removed from the control of his or her legal custodian without the custodian’s consent, or the circumstances of the case must strongly indicate that the child is likely to have been abused or sexually exploited.
Options under the law. Two federal criminal investigative options and one non-criminal or civil method may be pursued when a child is abducted by a parent and taken over state lines or outside the U.S.
The International Parental Kidnapping Crime Act (IPKCA) of 1993: A criminal arrest warrant can be issued for a parent who takes a juvenile under 16 outside of the U.S. without the other custodial parent’s permission.
Unlawful Flight to Avoid Prosecution (UFAP)—Parental Kidnapping: When criminal charges are filed by a state that requests our help, a criminal arrest warrant can be issued for an abducting parent who flees across state lines or internationally. See below for more details.
The Hague Convention on the Civil Aspects of International Child Abduction: In nations that have signed the Hague Convention, there is a civil process that facilitates the return of abducted children under 16 to their home countries. See below for more details.
The criminal processes enable the arrest of the abducting parent but do not specifically order the return of the child, although the child is usually returned when the parent is apprehended. The civil process, on the other hand, facilitates the return of the child but in no way seeks the arrest or return of the abductor. As a result, a criminal process would not be pursued if circumstances indicate it will jeopardize an active Hague Convention civil process.
It’s important to understand: The FBI has no investigative jurisdiction outside the U.S., except on the high seas and other locations specifically granted by Congress. We work through our existing partnerships with international authorities through the U.S. Department of State, our legal attaché program, and Interpol.
More Details on the Unlawful Flight to Avoid Prosecution—Parental Kidnapping Process:
Our authority in parental kidnapping cases stems from the Fugitive Felon Act as part of Title 18, United States Code, Section 1073–UFAP. Although this statute most commonly applies to fugitives who flee interstate and/or internationally, Congress has specifically declared that the statute is also applicable in cases involving interstate or international parental kidnapping. Because many fugitives flee with their own children, the statute serves as an effective means for the FBI to help local and state law enforcement arrest these fugitives. In order for the FBI to assist with a UFAP arrest warrant, the following criteria must be met:
There must be probable cause to believe the abducting parent has fled interstate or internationally to avoid prosecution or confinement.
State authorities must have an outstanding warrant for the abductor’s arrest charging him/her with a felony under the laws of the state from which the fugitive flees.
State authorities must agree to extradite and prosecute that fugitive from anywhere in the U.S. if the subject is apprehended by the FBI.
The local prosecuting attorney or police agency should make a written request for FBI assistance.
The U.S. Attorney must authorize the filing of a complaint, and the federal arrest process must be outstanding before the investigation is instituted.”
You can file an emergency motion and judges will hear all such filings before they go home for the day. If you file before 5 p.m., a judge will likely grant an emergency and has to set a hearing with 15 days. It can be tricky though when it comes to threats because you really can’t do anything. But if you come home and the house is cleaned out and there is a For Sale sign out front you can take immediate action. Another thing that is helpful is to be prepared. There are programs to get your kids fingerprinted for your local police agency to have on file. It’s also good to have a current picture because kids change so much. You are more likely to find them quickly if you have up to date pictures and fingerprints.
If you are threatened, you have to take it seriously as soon as possible. If it’s a divorce, file it right away so there is some mechanism with the courts going forward. If you don’t have that, no one really wants to get involved. Police officers don’t want to get involved in family law cases period, unless there is some kind of order. With something filed, if there is a threat, temporary relief can be sought to come up with some kind of child sharing through the court.
Emergency motions can also be filed to have a child or the children returned. But if your child is taken, unless the court or law enforcement finds something on file, it’s just a parent traveling with their child and not much can be done. Also, with an order filed, if someone has international ties, the court can take their passport if there is a threat of fleeing.
At Ayo & Iken, we run across many circumstances where spouses threaten to take children out of the state or country. It is imperative that everything possible is done to prevent the removal from the state. And if the threat is to remove the children out of the country, it is crucial that is taken seriously immediately by measures including but not limited to an emergency order before the court.
When you are dealing with international custody issues there are a number of protocols that come into play with foreign governments so there is no guarantee the children will come back. So if at all possible, the children must remain in the United States.
If it’s a legitimate threat I recommend filing for divorce right away so an emergency order can be put in place preventing either side from taking the children. If nothing is filed, and one side or the other takes the children it’s a little harder. I don’t think you’ve lost at that point, but it’s definitely an uphill battle especially when it comes to state jurisdictions. I would especially take it seriously if you know that, for example, dad’s family is in another country and if he has the money to take the children out of the United States.
Everything is contingent on whether there’s a prior court order. If there is an order in place, you can file what’s called an emergency pickup order. You can also use orders from other states in Florida and vice versa. For instance, I had a case with a gentleman from Illinois who had a court order there, but the mom took their child to Florida anyway. What we did is register the foreign judgment in Florida basically making the Illinois order into a Florida order, and he got the child back.
If there is not a court order, that’s when you are in a bad place. I tell my clients all the time if you don’t file something in court like a paternity action or a divorce and your husband or wife comes over and says they just want to give their child a hug – then pulls him or her into a car and drives away – there’s nothing you can do. That’s a really scary situation to be in.
If it’s a situation where there is an order in place and the person violates the order with no intention of coming back, then that would be a situation when the authorities may get involved. The problem is before an order is in place mom or dad can travel freely with their child, so until such time as you get court involvement you can’t control that. That’s why it’s so important to have an attorney who can advocate for you in court before something like that happens. When someone has the means and especially if they have the connections with say family overseas, they have those contacts, it becomes more and more realistic to believe it could happen that someone would take the children away.
It is a thousand times easier to prevent a child from being taken then it is to get them back. That means you must always stay alert to the circumstances. Also watch for red flags that may signal the other parent intends to leave. And if you are really convinced that a surprise move is in the works you need to immediately file a court case. In most family law, divorce, or custody cases, either parent is forbidden from sudden relocations without permission of the court. That will not solve every possible situation but it will give you much more potent tools to later “fix” the problem.
That wraps up today’s roundtable discussion. Be sure to look around our website for more in-depth articles on custody, divorce, and parental rights. Meanwhile we hope to see you come back to the Ayo and Iken roundtable.
Our specialized content, video, and other informative media are based on input from Ayo and Iken team members, outside guests, former team members of Ayo and Iken, independent journalists, and subject-matter authorities. The opinions expressed do not necessarily reflect the official position of Ayo and Iken. Attorneys that are not current team members at Ayo and Iken may be reached through their member listing on the Florida Bar website: www.flabar.org