Senate Bill sb0120

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    Florida Senate - 2002                                   SB 120

    By Senator Geller





    29-93-02

  1                      A bill to be entitled

  2         An act relating to child custody; creating the

  3         "Vivian Trout Parental Kidnapping Prevention

  4         Act"; authorizing the court to issue a

  5         protective custody warrant to secure the

  6         recovery of an unlawfully detained child;

  7         providing for the court to order the appearance

  8         of parties; providing for serving a protective

  9         custody warrant; requiring payment of the

10         expenses of a party directed to appear before

11         the court; providing definitions; authorizing

12         the court to issue an emergency protective

13         order under certain circumstances; providing

14         requirements for notice; prohibiting the

15         detention or concealment of a child from the

16         lawful custodian or a person with a right to

17         visitation; providing penalties; requiring that

18         the court consider certain aggravating factors

19         when sentencing a person for such violation;

20         specifying certain mitigating factors;

21         providing for payment of restitution to the

22         state attorney or victim; providing certain

23         exceptions to application of the act;

24         specifying circumstances under which a law

25         enforcement officer may take a child into

26         protective custody; providing for the court to

27         issue orders with respect to conflicting

28         custodial orders; providing for determining

29         jurisdiction; providing for enforcement;

30         providing for review of a court order;

31         providing an effective date.

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  1  Be It Enacted by the Legislature of the State of Florida:

  2

  3         Section 1.  Parental kidnapping.--

  4         (1)  This section may be cited as the "Vivian Trout

  5  Parental Kidnapping Prevention Act."

  6         (2)(a)  Upon the request of the state attorney, the

  7  court may issue a protective custody warrant to secure the

  8  recovery of an unlawfully detained or concealed child. The

  9  protective custody warrant for the child must contain an order

10  that the arresting agency place the child in protective

11  custody or return the child as directed by the court. The

12  protective custody warrant may be served in any county in the

13  same manner as a warrant of arrest and may be served at any

14  time of the day or night.

15         (b)  Upon a declaration of the state attorney that the

16  child has been recovered or that the warrant is otherwise no

17  longer required, the court may dismiss the warrant without

18  further court proceedings.

19         (2)(a)  The court may order any party to the proceeding

20  who is within or without this state to appear personally

21  before the court. If that party has physical custody of the

22  child, the court may order him or her to appear personally

23  with the child. If the party who is ordered to appear with the

24  child cannot be served or fails to obey the order, or if it

25  appears the order will be ineffective, the court may issue a

26  warrant of arrest against the party and a protective custody

27  warrant for the child, to secure the party's or the child's

28  appearance before the court. The protective custody warrant

29  for the child must contain an order that the arresting agency

30  place the child in protective custody, or return the child as

31  directed by the court. The protective custody warrant may be

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  1  served in any county in the same manner as a warrant of arrest

  2  and may be served at any time of the day or night.

  3         (b)  If a party to the proceeding whose presence is

  4  desired by the court is outside this state with or without the

  5  child, the court may order that the party be directed to

  6  appear personally with or without the child and notified that

  7  failure to appear may result in a decision adverse to that

  8  party and the issuance of a warrant under paragraph (a).

  9         (c)  If a party to the proceeding who is outside this

10  state is directed to appear under paragraph (b) or desires to

11  appear personally before the court with or without the child,

12  the court may require another party to pay to the clerk of the

13  court travel and other necessary expenses of the party so

14  appearing and of the child if this is just and proper under

15  the circumstances.

16         (3)  As used in this section, the term:

17         (a)  "Law enforcement officer" means any person who is

18  elected, appointed, or employed by any municipality or the

19  state or any political subdivision thereof who meets the

20  minimum qualifications established in section 943.13, Florida

21  Statutes, and is certified as a law enforcement officer under

22  section 943.1395, Florida Statutes.

23         (b)  "Abduct" means take, entice away, keep, withhold,

24  or conceal.

25         (4)  A court may issue an ex parte emergency protective

26  order if a law enforcement officer asserts reasonable grounds

27  to believe that:

28         (a)  A person is in immediate and present danger of

29  domestic violence, based on the person's allegation of a

30  recent incident of abuse or threat of abuse by the person

31  against whom the order is sought.

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  1         (b)  A child is in immediate and present danger of

  2  abuse by a family or household member, based on an allegation

  3  of a recent incident of abuse or threat of abuse by the family

  4  or household member.

  5         (c)  A child is in immediate and present danger of

  6  being abducted by a parent or relative, based on a reasonable

  7  belief that a person has an intent to abduct the child or flee

  8  with the child from the jurisdiction of the state or based on

  9  an allegation of a recent threat to abduct the child or flee

10  with the child from the jurisdiction of the state.

11         (5)  An emergency protective order may be issued only

12  if the court finds:

13         (a)  Reasonable grounds have been asserted to believe

14  that an immediate and present danger of domestic violence

15  exists or that a child is in immediate and present danger of

16  abuse or abduction; and

17         (b)  An emergency protective order is necessary to

18  prevent the occurrence or recurrence of domestic violence,

19  child abuse, or child abduction.

20         (6)  An emergency protective order may include:

21         (a)  A protective order issued under sections

22  741.28-741.31, Florida Statutes.

23         (b)  An order determining the temporary care and

24  control of any minor child of the endangered person and the

25  person against whom the order is sought.

26         (c)  An order determining the temporary care and

27  control of any minor child who is in danger of being abducted.

28         (7)  An emergency protective order must include:

29         (a)  A statement of the grounds asserted for the order;

30         (b)  The date and time the order expires;

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  1         (c)  The address of the court for the district or

  2  county in which the endangered person or child in danger of

  3  being abducted resides; and

  4         (d)1.  The following statements, printed in English and

  5  Spanish:

  6         a.  "To the Protected Person: This order will last only

  7  until the date and time noted above. If you wish to seek

  8  continuing protection, you will have to apply for an order

  9  from the court, at the address noted above. You may seek the

10  advice of an attorney as to any matter connected with your

11  application for any future court orders. The attorney should

12  be consulted promptly so that the attorney may assist you in

13  making your application."

14         b.  "To the Restrained Person: This order will last

15  until the date and time noted above. The protected party may,

16  however, obtain a more permanent restraining order from the

17  court. You may seek the advice of an attorney as to any matter

18  connected with the application. The attorney should be

19  consulted promptly so that the attorney may assist you in

20  responding to the application."

21         2.  The following statement in the case of a child in

22  danger of being abducted, which must be printed in English and

23  Spanish: "This order will last only until the date and time

24  noted above. You may apply for a child custody order from the

25  court, at the address noted above. You may seek the advice of

26  an attorney as to any matter connected with the application.

27  The attorney should be consulted promptly so that the attorney

28  may assist you in responding to the application."

29         Section 2.  Child abduction.--

30         (1)  As used in this section, the term:

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  1         (a)  "Abduct" means take, entice away, keep, withhold,

  2  or conceal.

  3         (b)  "Child" means a person under 18 years of age.

  4         (c)  "Court order" or "custody order" means a decree,

  5  judgment, or order issued by a court of competent

  6  jurisdiction, whether permanent or temporary, initial or

  7  modified, which affects the custody or visitation of a child

  8  and is issued in the context of a custody proceeding. An

  9  order, once made, continues in effect until it expires, is

10  modified, is rescinded, or terminates by operation of law.

11         (d)  "Custody proceeding" means a proceeding in which a

12  custody determination is an issue, including, but not limited

13  to, an action for dissolution or separation, dependency,

14  guardianship, termination of parental rights, adoption,

15  paternity, or protection from domestic violence, including an

16  emergency protective order issued under sections

17  741.28-741.31, Florida Statutes.

18         (e)  "Domestic violence" means any assault, aggravated

19  assault, battery, aggravated battery, sexual assault, sexual

20  battery, stalking, aggravated stalking, kidnapping, false

21  imprisonment, or any criminal offense resulting in physical

22  injury or death of one family or household member by another

23  who is or was residing in the same single dwelling unit.

24         (f)  "Keeps" or "withholds" means to retain physical

25  possession of a child regardless of whether the child resists

26  or objects.

27         (g)  "Lawful custodian" means a person, guardian, or

28  public agency having a right to custody of a child.

29         (h)  "Person" includes, but is not limited to, a parent

30  or an agent of a parent.

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  1         (i)  "Visitation" means the time for access to the

  2  child allotted to any person by court order.

  3         (2)(a)  Whenever a public agency takes protective

  4  custody or jurisdiction of the care, custody, control, or

  5  conduct of a child by law or court order, that agency is a

  6  lawful custodian of the child and has a right to physical

  7  custody of the child. In any subsequent placement of the

  8  child, the public agency continues to be a lawful custodian

  9  with a right to physical custody of the child until the public

10  agency's right of custody is terminated by an order of a court

11  of competent jurisdiction or by operation of law.

12         (b)  In the absence of a court order to the contrary, a

13  parent loses his or her right to custody of the child to the

14  other parent if the parent having the right to custody is

15  dead, is unable or refuses to take the custody, or has

16  abandoned his or her family. A natural parent whose parental

17  rights have been terminated by court order is not a lawful

18  custodian of the child and does not have a right to physical

19  custody of the child.

20         (3)(a)  Any person, not having a right to custody, who

21  maliciously takes, entices away, keeps, withholds, or conceals

22  any child with the intent to detain or conceal that child from

23  a lawful custodian commits a felony of the third degree,

24  punishable as provided in section 775.082, section 775.083, or

25  section 775.084, Florida Statutes.

26         (b)  Any person who takes, entices away, keeps,

27  withholds, or conceals a child and maliciously deprives a

28  lawful custodian of a right to custody, or a person of a right

29  to visitation, commits a felony of the third degree,

30  punishable as provided in section 775.082, section 775.083, or

31  section 775.084, Florida Statutes.

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  1         (c)  This section does not limit the court's contempt

  2  power.

  3         (d)  A custody order obtained after the taking,

  4  enticing away, keeping, withholding, or concealing of a child

  5  is not a defense to a crime charged under this section.

  6         (4)(a)  At the sentencing hearing following a

  7  conviction for a violation of paragraph (3)(a) or paragraph

  8  (3)(b), the court shall consider any relevant factors and

  9  circumstances in aggravation, including, but not limited to:

10         1.  The child was exposed to a substantial risk of

11  physical injury or illness.

12         2.  The defendant inflicted or threatened to inflict

13  physical harm on a parent or lawful custodian of the child or

14  on the child at the time of or during the abduction.

15         3.  The defendant harmed or abandoned the child during

16  the abduction.

17         4.  The child was taken, enticed away, kept, withheld,

18  or concealed outside the United States.

19         5.  The child has not been returned to the lawful

20  custodian.

21         6.  The defendant previously abducted or threatened to

22  abduct the child.

23         7.  The defendant substantially altered the appearance

24  or the name of the child.

25         8.  The defendant denied the child appropriate

26  education during the abduction.

27         9.  The length of the abduction.

28         10.  The age of the child.

29         (b)  At a sentencing hearing following a conviction for

30  a violation of paragraph (3)(a) or paragraph (3)(b), the court

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  1  shall consider any relevant factors and circumstances in

  2  mitigation, including, but not limited to:

  3         1.  The defendant returned the child unharmed and

  4  before arrest or issuance of a warrant for arrest.

  5         2.  The defendant provided information and assistance

  6  leading to the child's safe return.

  7         (c)  In addition to any other penalties, the court

  8  shall order the defendant to pay restitution to the state

  9  attorney for any costs incurred in locating and returning the

10  child to the lawful custodian and for any expenses and costs

11  reasonably incurred by, or on behalf of, the victim in

12  locating and recovering the child. An award made under this

13  section constitutes a final judgment and is enforceable as

14  such.

15         (5)(a)  This section does not apply to a person with a

16  right to custody of a child who, with a good-faith and

17  reasonable belief that the child, if left with the other

18  person, will suffer immediate bodily injury or emotional harm,

19  takes, entices away, keeps, withholds, or conceals that child.

20         (b)  This section does not apply to a person with a

21  right to custody of a child who has been a victim of domestic

22  violence who, with a good-faith and reasonable belief that the

23  child, if left with the other person, will suffer immediate

24  bodily injury or emotional harm, takes, entices away, keeps,

25  withholds, or conceals that child. As used in this paragraph,

26  the term "emotional harm" includes having a parent who has

27  committed domestic violence against the parent who is taking,

28  enticing away, keeping, withholding, or concealing the child.

29         (c)  Any person who takes, entices away, keeps,

30  withholds, or conceals a child must:

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  1         1.  Within a reasonable time after the taking, enticing

  2  away, keeping, withholding, or concealing, make a report to

  3  the office of the state attorney of the county where the child

  4  resided before the action. The report must include the name of

  5  the person, the current address and telephone number of the

  6  child and the person, and the reasons the child was taken,

  7  enticed away, kept, withheld, or concealed.

  8         2.  Within a reasonable time after the taking, enticing

  9  away, keeping, withholding, or concealing, commence a custody

10  proceeding in a court of competent jurisdiction consistent

11  with the federal Parental Kidnapping Prevention Act, Section

12  1738A, Title 28, United States Code, or the Uniform Child

13  Custody Jurisdiction Act, sections 61.1302-61.1348, Florida

14  Statutes.

15         3.  Inform the state attorney's office of any change of

16  address or telephone number of the person and the child.

17         (d)  For the purposes of this section, a reasonable

18  time within which to make a report to the state attorney's

19  office is at least 10 days and a reasonable time to commence a

20  custody proceeding is at least 30 days. This section does not

21  preclude a person from making a report to the state attorney's

22  office or commencing custody proceedings earlier than those

23  specified times.

24         (6)(a)  A violation of paragraph (3)(a) or paragraph

25  (3)(b) by a person who was not a resident of, or present in,

26  this state at the time of the alleged offense is punishable in

27  this state, regardless of whether the intent to commit the

28  offense is formed within or outside this state, if:

29         1.  The child was a resident of, or present in, this

30  state at the time the child was taken, enticed away, kept,

31  withheld, or concealed.

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  1         2.  The child thereafter is found in this state.

  2         3.  A lawful custodian or a person with a right to

  3  visitation is a resident of this state at the time the child

  4  was taken, enticed away, kept, withheld, or concealed.

  5         (b)  The offenses enumerated in paragraphs (3)(a) and

  6  (3)(b) are continuous in nature, and continue for as long as

  7  the minor child is concealed or detained.

  8         (7)  When a person is arrested for an alleged violation

  9  of paragraph (3)(a) or paragraph (3)(b), the court, in setting

10  bail, shall take into consideration whether the child has been

11  returned to the lawful custodian, and if not, shall consider

12  whether there is an increased risk that the child may not be

13  returned or the defendant may flee the jurisdiction of the

14  court, or, by flight or concealment, may evade the authority

15  of the court.

16         (a)  A law enforcement officer may take a child into

17  protective custody if:

18         1.  It reasonably appears to the officer that a person

19  is likely to conceal the child, flee the jurisdiction of the

20  court with the child, or, by flight or concealment, evaded the

21  authority of the court.

22         2.  There is no lawful custodian available to take

23  custody of the child.

24         3.  There are conflicting custody orders or conflicting

25  claims to custody and the parties are unable to agree which

26  party should take custody of the child.

27         4.  The child is an abducted child.

28         (b)  When a law enforcement officer takes a child into

29  protective custody under this subsection, the officer must:

30         1.  Release the child to the lawful custodian of the

31  child, unless it reasonably appears that the release would

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  1  cause the child to be endangered, abducted, or removed from

  2  the jurisdiction of the court.

  3         2.  Obtain an emergency protective order ordering

  4  placement of the child with an interim custodian who agrees in

  5  writing to accept interim custody.

  6         3.  Release the child to the social services agency

  7  responsible for arranging shelter or foster care.

  8         4.  Return the child as ordered by a court of competent

  9  jurisdiction.

10         (c)  Upon the arrest of a person for a violation of

11  paragraph (3)(a) or paragraph (3)(b), a law enforcement

12  officer shall take possession of an abducted child who is

13  found in the company of, or under the control of, the arrested

14  person and deliver the child as directed in paragraph (b).

15         (d)  Notwithstanding any other law, when a person is

16  arrested for an alleged violation of paragraph (3)(a) or

17  paragraph (3)(b), the court shall, at the time of the

18  arraignment or thereafter, order that the child be returned to

19  the lawful custodian by or on a specific date, or that the

20  person show cause on that date why the child has not been

21  returned as ordered. If conflicting custodial orders exist

22  within this state, or between this state and another state,

23  the court shall set a hearing within 5 business days to

24  determine which court has jurisdiction under the laws of this

25  state and determine which state has subject matter

26  jurisdiction to issue a custodial order under the laws of this

27  state, the Uniform Child Custody Jurisdiction Act, or federal

28  law, if applicable. At the conclusion of the hearing, or if

29  the child has not been returned as ordered by the court at the

30  time of arraignment, the court shall enter an order as to

31  which custody order is valid and is to be enforced. If the

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  1  child has not been returned at the conclusion of the hearing,

  2  the court shall set a date within a reasonable time by which

  3  the child must be returned to the lawful custodian, and order

  4  the defendant to comply by that date or show cause on that

  5  date why he or she has not returned the child as directed. The

  6  court shall enforce its order, or any subsequent order, for

  7  the return of the child to ensure that the child is promptly

  8  placed with the lawful custodian. An order is reviewable by a

  9  writ of mandate or prohibition addressed to the appropriate

10  court.

11         Section 3.  This act shall take effect October 1, 2002.

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13            *****************************************

14                          SENATE SUMMARY

15    Creates the "Vivian Trout Parental Kidnapping Prevention
      Act." Authorizes the court to issue a protective custody
16    warrant to secure the recovery of an unlawfully detained
      child. Authorizes the court to issue an emergency
17    protective order when a child is in immediate and present
      danger. Provides that detaining or concealing a child
18    from the lawful custodian or a person with a right to
      visitation is a third-degree felony. Provides
19    circumstances under which a law enforcement officer may
      take a child into protective custody. Provides for the
20    court to issue orders resolving conflicting custodial
      orders and determining jurisdiction. (See bill for
21    details.)

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