Senate Bill sb7040pb

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7040

    FOR CONSIDERATION By the Committee on Judiciary





    590-597B-06

  1                      A bill to be entitled

  2         An act relating to interference with custody;

  3         amending s. 787.03, F.S.; specifying that the

  4         offense of interference with custody applies to

  5         the taking of a minor; revising a defense for a

  6         person who is a victim of domestic violence to

  7         require that interference with custody is

  8         necessary to escape the violence or to preserve

  9         the minor or incompetent person from exposure

10         to the violence; revising a defense when a

11         minor or incompetent person instigates his or

12         her taking to require a showing that it was

13         reasonable for the defendant to rely upon the

14         instigating acts; broadening an exception from

15         the statute beyond a spouse to include certain

16         other persons who take a minor or incompetent

17         person and follow prescribed procedures;

18         including the taking of an incompetent person

19         within those procedures required under the

20         statutory exception; providing an effective

21         date.

22  

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

24  

25         Section 1.  Subsections (1), (2), (3), (4), and (5),

26  and paragraphs (a) and (b) of subsection (6) of section

27  787.03, Florida Statutes, are amended to read:

28         787.03  Interference with custody.--

29         (1)  Whoever, without lawful authority, knowingly or

30  recklessly takes or entices, or aids, abets, hires, or

31  otherwise procures another to take or entice, any minor child

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7040
    590-597B-06




 1  17 years of age or under or any incompetent person from the

 2  custody of the minor's child or incompetent person's parent,

 3  his or her guardian, a public agency having the lawful charge

 4  of the minor child or incompetent person, or any other lawful

 5  custodian commits the offense of interference with custody and

 6  commits a felony of the third degree, punishable as provided

 7  in s. 775.082, s. 775.083, or s. 775.084.

 8         (2)  In the absence of a court order determining rights

 9  to custody or visitation with any minor child 17 years of age

10  or under or with any incompetent person, any parent of the

11  minor child or incompetent person, whether natural or

12  adoptive, stepparent, legal guardian, or relative of the minor

13  such child or incompetent person who has custody thereof and

14  who takes, detains, conceals, or entices away that minor child

15  or incompetent person within or without the state, with

16  malicious intent to deprive another person of his or her right

17  to custody of the minor child or incompetent person, commits a

18  felony of the third degree, punishable as provided in s.

19  775.082, s. 775.083, or s. 775.084.

20         (3)  A subsequently obtained court order for custody or

21  visitation does not affect application of this section.

22         (4)  It is a defense that:

23         (a)  The defendant had reasonable cause to believe

24  reasonably believes that his or her action was necessary to

25  preserve the minor child or the incompetent person from danger

26  to his or her welfare.

27         (b)  The defendant was the victim of an act of domestic

28  violence or had reasonable cause to believe that he or she was

29  about to become the victim of his or her action was necessary

30  to protect himself or herself from an act of domestic violence

31  as defined in s. 741.28, and the defendant had reasonable

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7040
    590-597B-06




 1  cause to believe that the action was necessary in order for

 2  the defendant to escape from, or protect himself or herself

 3  from, the domestic violence or to preserve the minor or

 4  incompetent person from exposure to the domestic violence.

 5         (c)  The minor child or incompetent person was taken

 6  away at his or her own instigation without enticement and

 7  without purpose to commit a criminal offense with or against

 8  the minor child or incompetent person, and the defendant

 9  establishes that it was reasonable to rely on the instigating

10  acts of the minor or incompetent person.

11         (5)  Proof that a person has not attained the age of 18

12  years child was 17 years of age or under creates the

13  presumption that the defendant knew the minor's child's age or

14  acted in reckless disregard thereof.

15         (6)(a)  This section does not apply in cases in which

16  where a person having a legal right to custody of a minor or

17  incompetent person spouse who is the victim of any act of

18  domestic violence, or who has reasonable cause to believe he

19  or she is about to become the victim of any act of domestic

20  violence, as defined in s. 741.28, or believes that his or her

21  action was necessary to preserve the minor child or the

22  incompetent person from danger to his or her welfare and seeks

23  shelter from such acts or possible acts and takes with him or

24  her the minor or incompetent person any child 17 years of age

25  or younger.

26         (b)  In order to gain the exception exemption conferred

27  by paragraph (a), a person who takes a minor or incompetent

28  person under child pursuant to this subsection must:

29         1.  Within 10 days after taking the minor or

30  incompetent person child, make a report to the sheriff's

31  office or state attorney's office for the county in which the

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7040
    590-597B-06




 1  minor or incompetent person child resided at the time he or

 2  she was taken, which report must include the name of the

 3  person taking the minor or incompetent person child, the

 4  current address and telephone number of the person and minor

 5  or incompetent person child, and the reasons the minor or

 6  incompetent person child was taken.

 7         2.  Within a reasonable time after taking a minor the

 8  child, commence a custody proceeding that is consistent with

 9  the federal Parental Kidnapping Prevention Act, 28 U.S.C. s.

10  1738A, or the Uniform Child Custody Jurisdiction and

11  Enforcement Act, ss. 61.501-61.542.

12         3.  Inform the sheriff's office or state attorney's

13  office for the county in which the minor or incompetent person

14  child resided at the time he or she was taken of any change of

15  address or telephone number of the person and the minor or

16  incompetent person child.

17         Section 2.  This act shall take effect October 1, 2006.

18  

19            *****************************************

20                          SENATE SUMMARY

21    Revises various elements of the offense of interference
      with custody to clarify that the offense applies to the
22    taking of a minor as well as an incompetent person.
      Provides that domestic violence, the threat of domestic
23    violence, and a reasonable reliance upon an instigating
      act of the minor or incompetent person are defenses to
24    the offense of interference with custody. Provides that a
      taking by a person having the legal right to custody of
25    the minor or incompetent person does not constitute
      interference with custody. Requires that a person
26    lawfully taking an incompetent person follow the same
      procedures required following the lawful taking of a
27    minor.

28  

29  

30  

31  

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