It has happened again and will continue to happen. It is sad but all too common for a child custody case to become national news as one parent alleges the other parent kidnapped their child.
This time Tampa made national news as a young mother wept in front of television cameras saying the father of her 3-year-old son had kidnapped the boy and taken him to Lebanon, a country that does not recognize international laws concerning rights of parents to their children in the United States.
The case of Rachelle Smith may have dominated headlines in the Tampa Bay area and grabbed national attention, but statistics show family abductions are all too common. Child custody issues in which parents leave for another state without the other parent’s consent or cases where one parent will not let the other parent see a child are gut-wrenching situations that our Ayo & Iken attorneys face on a daily basis.
Ayo & Iken New Port Richey Attorney Jason Coupal discussed a case he is litigating on behalf of a father whose child has medical issues. The child’s mother – in believing she is the only one with the skill set to care for the child’s medical issues – has refused to allow the father to see the child. Not only is that false but it is not a legal reason for the mother to refuse the father access to his child, Coupal said.
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“It can be a nightmare when you have a parent who keeps the other parent from seeing a child,” Coupal said.
Ayo & Iken Tampa Attorney Lee Feinberg recently won a judge’s order mandating a mother bring back to Florida the 5-year-old daughter of his client, the father. She had taken the child to New Jersey without his knowledge setting off litigation.
In Feinberg’s case, the mother within 24-hours of taking her time-sharing with the child planned a departure out of the state without warning, a violation of laws that require any move of a child of more than 50 miles be signed off on by a judge. Another issue that had to be dealt with is the couple is not married, so while Feinberg’s client had raised the child from birth he did not have legal paternity established.
Paternity can be a tricky thing because the mother of a child in the eyes of the law is viewed as a child’s natural guardian, Feinberg said. So if a father is not married to the mother, he must establish paternity through a court order, even if the father’s name is on the birth certificate.
While the statute does allow for some parental rights for the unmarried father if he has been a substantial presence in a child’s life, the case law in that respect has historically weighed heavily in favor of the mother, Feinberg said. In an evolving society where fathers are seeing more equal footing in the courtroom, Feinberg believes that may change.
“I could see the case law catching up the times, or the statute changing,” he said.
In the case of Feinberg’s client, he put a rush on establishing paternity as soon as it had been discovered the mother had taken the child to New Jersey.
That is because there is an inter-state pact called the Uniform Child Custody Jurisdiction and Enforcement Act that allows for the addressing of child custody issues between states. But once a child has been living in a particular state for sixth months, that becomes his or her home state and that is where court jurisdiction is established.
Feinberg’s quick action establishing paternity for the father prior to six months kept the case in Florida and eventually a judge ordered the mother to return the child. Feinberg’s client will now have 50/50 time-sharing with his daughter if the mother stays in Florida, or majority custody if she continues to reside in New Jersey.
These issues are especially intense because children are involved and many times custody issues that are being argued can lead to heated situations. That could be a reason why family abduction statistics are so high nationally.
A study by the National Center for Missing & Exploited Children found between 2008 and 2017 there were 11,581 children who were abducted by a parent or family member. Like the case of Rachelle Smith in Tampa, 25.9 percent had an international component. Mothers were the most common abductor of the child at 53.9 percent, with fathers being the abductor 36 percent of the time, the study said.
Establishing rights to your children is something that always needs to be considered in a age where more people are opting not to get married, Ayo & Iken Orlando Attorney Paul Moyer said. Moyer is also overseeing a case where he is seeking to establish paternity for his client as the mother of the their child wants to move to Missouri.
“Simply signing a birth certificate doesn’t do a thing. You have to have a paternity action order entered by the court or an agreement signed by the other parent filed with the court. Other than that he has essentially no parental rights. Dads often really don’t understand that,” Moyer said.
For more on the Rachelle Smith case here is a link to a Fox 13 news report in Tampa: http://www.fox13news.com/news/local-news/tampa-woman-begs-for-son-s-return-after-father-took-him-to-lebanon