HB 211

1	A bill to be entitled
2	An act relating to child abduction prevention; creating
3	pt. III of ch. 61, F.S.; creating s. 61.601, F.S.;
4	providing a short title; creating s. 61.602, F.S.;
5	providing definitions; creating s. 61.603, F.S.;
6	authorizing a court to order abduction prevention
7	measures; providing conditions under which certain parties
8	may file a petition seeking abduction prevention measures;
9	authorizing a state attorney to take custody of a child
10	under certain circumstances; creating s. 61.604, F.S.;
11	providing for jurisdiction and temporary emergency
12	jurisdiction for filing a petition seeking child abduction
13	prevention measures; creating s. 61.605, F.S.; specifying
14	contents and requiring verification of the petition;
15	creating s. 61.606, F.S.; requiring a court to consider
16	specified factors in determinations relating to child
17	abduction; creating s. 61.607, F.S.; requiring certain
18	information to be included in a court order regarding
19	prevention of child abduction; authorizing the court to
20	enter a child abduction prevention order and specifying
21	contents thereof; authorizing the court to impose
22	conditions on the exercise of custody and visitation;
23	creating s. 61.608, F.S.; providing conditions under which
24	a court may issue and enforce a warrant to take physical
25	custody of a child; specifying contents of the warrant;
26	providing a respondent to be granted a hearing within a
27	specified time period; authorizing the court to order a
28	search of specified databases under certain circumstances;
29	providing conditions for service of a petition or warrant;
30	providing for law enforcement officers to forcibly enter
31	private property under certain circumstances; authorizing
32	the court to award certain fees and costs to the
33	respondent; creating s. 61.609, F.S.; providing for
34	duration of an abduction prevention order; creating s.
35	61.610, F.S.; providing for application and construction
36	of pt. III of ch. 61, F.S.; creating s. 61.611, F.S.;
37	providing for cooperation between courts and the
38	preservation of records; amending s. 61.612, F.S.;
39	providing for applicability of the federal Electronic
40	Signatures in Global and National Commerce Act; providing
41	an effective date.
42
43	Be It Enacted by the Legislature of the State of Florida:
44
45	Section 1.  Part III of chapter 61, Florida Statutes,
46	consisting of sections 61.601, 61.602, 61.603, 61.604, 61.605,
47	61.606, 61.607, 61.608, 61.609, 61.610, 61.611, and 61.612, is
48	created to read:
49	PART III
50	UNIFORM CHILD ABDUCTION PREVENTION ACT
51	61.601  Short title.--This part may be cited as the
52	"Uniform Child Abduction Prevention Act."
53	61.602  Definitions.--As used in this part, the term:
54	(1)  "Abduction" means the wrongful removal or wrongful
55	retention of a child.
56	(2)  "Child" means an unemancipated individual who is less
57	than 18 years of age.
58	(3)  "Child custody determination" means a judgment,
59	decree, or other order of a court providing for the legal
60	custody, physical custody, or visitation with respect to a
61	child. The term includes a permanent, temporary, initial, and
62	modification order.
63	(4)  "Child custody proceeding" means a proceeding in which
64	legal custody, physical custody, or visitation with respect to a
65	child is at issue. The term includes a proceeding for divorce,
66	dissolution of marriage, separation, neglect, abuse, dependency,
67	guardianship, paternity, termination of parental rights, and
68	protection from domestic violence.
69	(5)  "Court" means an entity authorized under the laws of a
70	state to establish, enforce, or modify a child custody
71	determination.
72	(6)  "Petition" includes a motion or its equivalent.
73	(7)  "Record" means information that is inscribed on a
74	tangible medium or that is stored in an electronic or other
75	medium and is retrievable in perceivable form.
76	(8)  "State" means a state of the United States, the
77	District of Columbia, Puerto Rico, the United States Virgin
78	Islands, or any territory or insular possession subject to the
79	jurisdiction of the United States. The term includes a federally
80	recognized Indian tribe or nation.
81	(9)  "Travel document" means records relating to a travel
82	itinerary, including travel tickets, passes, reservations for
83	transportation, or reservations for accommodations. The term
84	does not include a passport or visa.
85	(10)  "Wrongful removal" means the taking of a child that
86	breaches rights of custody or visitation given or recognized
87	under the laws of this state.
88	(11)  "Wrongful retention" means the keeping or concealing
89	of a child that breaches rights of custody or visitation given
90	or recognized under the laws of this state.
91	61.603  Actions for abduction prevention measures.--
92	(1)  A court on its own motion may order abduction
93	prevention measures in a child custody proceeding if the court
94	finds that the evidence establishes a credible risk of abduction
95	of the child.
96	(2)  A party to a child custody determination or another
97	individual or entity having a right under the law of this state
98	or any other state to seek a child custody determination for the
99	child may file a petition seeking abduction prevention measures
100	to protect the child under this part.
101	(3)  A state attorney designated under s. 61.538 may seek a
102	warrant to take physical custody of a child under s. 61.608.
103	61.604  Jurisdiction.--
104	(1)  A petition under this part may be filed only in a
105	court that has jurisdiction to make a child custody
106	determination with respect to the child at issue under s.
107	61.514.
108	(2)  A court of this state has temporary emergency
109	jurisdiction under s. 61.517 if the court finds a credible risk
110	of abduction.
111	61.605  Contents of petition.--A petition filed under this
112	part must be verified and include a copy of any existing child
113	custody determination, if available. The petition must specify
114	the risk factors for abduction, including the relevant factors
115	described in s. 61.606. In accordance with s. 61.522, the
116	petition shall contain all of the following:
117	(1)  The name, date of birth, and gender of the child.
118	(2)  The last known address and current physical location
119	of the child.
120	(3)  The identity, last known address, and current physical
121	location of the respondent.
122	(4)  A statement of whether a prior action to prevent
123	abduction or domestic violence has been filed by a party or
124	other individual or entity having custody of the child and the
125	date, location, and disposition of the action.
126	(5)  A statement of whether a party to the proceeding has
127	been arrested for a crime related to domestic violence,
128	stalking, or child abuse or neglect and the date, location, and
129	disposition of the case.
130	(6)  Any other information required to be submitted to the
131	court for a child custody determination under s. 61.522.
132	61.606  Factors to determine risk of abduction.--
133	(1)  In determining whether there is a credible risk of
134	abduction of a child, the court shall consider any evidence that
135	the petitioner or respondent:
136	(a)  Has previously abducted or attempted to abduct the
137	child;
138	(b)  Has threatened to abduct the child;
139	(c)  Has recently engaged in activities that may indicate a
140	planned abduction, including:
141	1.  Abandoning employment;
142	2.  Selling a primary residence;
143	3.  Terminating a lease;
144	4.  Closing bank or other financial management accounts,
145	liquidating assets, hiding or destroying financial documents, or
146	conducting any unusual financial activities;
147	5.  Applying for a passport or visa or obtaining travel
148	documents for the respondent, a family member, or the child; or
149	6.  Seeking to obtain the child's birth certificate or
150	school or medical records;
151	(d)  Has engaged in domestic violence, stalking, or child
152	abuse or neglect;
153	(e)  Has refused to follow a child custody determination;
154	(f)  Lacks strong familial, financial, emotional, or
155	cultural ties to this state or the United States;
156	(g)  Has strong familial, financial, emotional, or cultural
157	ties to another state or country;
158	(h)  Is likely to take the child to a country that:
159	1.  Is not a party to the Hague Convention on the Civil
160	Aspects of International Child Abduction and does not provide
161	for the extradition of an abducting parent or for the return of
162	an abducted child;
163	2.  Is a party to the Hague Convention on the Civil Aspects
164	of International Child Abduction, but:
165	a.  The Hague Convention on the Civil Aspects of
166	International Child Abduction is not in force between the United
167	States and that country;
168	b.  Is noncompliant according to the most recent compliance
169	report issued by the United States Department of State; or
170	c.  Lacks legal mechanisms for immediately and effectively
171	enforcing a return order under the Hague Convention on the Civil
172	Aspects of International Child Abduction;
173	3.  Poses a risk that the child's physical or emotional
174	health or safety would be endangered in the country because of
175	specific circumstances relating to the child or because of human
176	rights violations committed against children;
177	4.  Has laws or practices that would:
178	a.  Enable the respondent, without due cause, to prevent
179	the petitioner from contacting the child;
180	b.  Restrict the petitioner from freely traveling to or
181	exiting from the country because of the petitioner's gender,
182	nationality, marital status, or religion; or
183	c.  Restrict the child's ability to legally leave the
184	country after the child reaches the age of majority because of
185	the child's gender, nationality, or religion;
186	5.  Is included by the United States Department of State on
187	a current list of state sponsors of terrorism;
188	6.  Does not have an official United States diplomatic
189	presence in the country; or
190	7.  Is engaged in active military action or war, including
191	a civil war, to which the child may be exposed;
192	(i)  Is undergoing a change in immigration or citizenship
193	status that would adversely affect the respondent's ability to
194	legally remain in the United States;
195	(j)  Has had an application for United States citizenship
196	denied;
197	(k)  Has forged or presented misleading or false evidence
198	on government forms or supporting documents to obtain or attempt
199	to obtain a passport, a visa, travel documents, a social
200	security card, a driver's license, or other government-issued
201	identification card or has made a misrepresentation to the
202	United States Government;
203	(l)  Has used multiple names to attempt to mislead or
204	defraud; or
205	(m)  Has engaged in any other conduct the court considers
206	relevant to the risk of abduction.
207	(2)  In the hearing on a petition filed under this part,
208	the court shall consider any evidence that the respondent
209	believed in good faith that the respondent's conduct was
210	necessary to avoid imminent harm to the child or the respondent
211	and any other evidence that may be relevant to whether the
212	respondent may be permitted to remove or retain the child.
213	61.607  Provisions and measures to prevent abduction.--
214	(1)  If a petition is filed under this part, the court may
215	enter an order that shall include all of the following:
216	(a)  The basis for the court's exercise of jurisdiction.
217	(b)  The manner in which notice and opportunity to be heard
218	were given to the persons entitled to notice of the proceeding.
219	(c)  A detailed description of each party's custody and
220	visitation rights and residential arrangements for the child.
221	(d)  A provision stating that a violation of the order may
222	subject the party in violation to civil and criminal penalties.
223	(e)  Identification of the child's country of habitual
224	residence at the time of the issuance of the order.
225	(2)  If, at a hearing on a petition filed under this part
226	or on the court's own motion, the court after reviewing the
227	evidence finds a credible risk of abduction of the child, the
228	court shall enter an abduction prevention order. The order must
229	include the provisions required under subsection (1) and
230	measures and conditions, including those provided in subsections
231	(3), (4), and (5), that are reasonably calculated to prevent
232	abduction of the child, giving due consideration to the custody
233	and visitation rights of the parties. The court shall consider
234	the age of the child, the potential harm to the child from an
235	abduction, the legal and practical difficulties of returning the
236	child to the jurisdiction of the court if abducted, and the
237	reasons for the potential abduction, including evidence of
238	domestic violence, stalking, or child abuse or neglect.
239	(3)  An abduction prevention order may include one or more
240	of the following:
241	(a)  An imposition of travel restrictions that require a
242	party traveling with the child outside a designated geographical
243	area to provide the other party with the following:
244	1.  The travel itinerary of the child;
245	2.  A list of physical addresses and telephone numbers at
246	which the child may be reached at specified times; and
247	3.  Copies of all travel documents;
248	(b)  A prohibition upon the respondent directly or
249	indirectly:
250	1.  Removing the child from this state, the United States,
251	or another geographic area without permission of the court or
252	the petitioner's written consent;
253	2.  Removing or retaining the child in violation of a child
254	custody determination;
255	3.  Removing the child from a school or a child care
256	facility or similar facility; or
257	4.  Approaching the child at any location other than a site
258	designated for supervised visitation;
259	(c)  A requirement that a party register the order in
260	another state before the child is allowed to travel to that
261	state;
262	(d)  With regard to the child's passport:
263	1.  A direction that the petitioner place the child's name
264	in the United States Department of State's Children's Passport
265	Issuance Alert Program;
266	2.  A requirement that the respondent surrender to the
267	court or the petitioner's attorney any United States or foreign
268	passport issued in the child's name, including a passport issued
269	in the name of both the parent and the child; and
270	3.  A prohibition upon the respondent from applying on
271	behalf of the child for a new or replacement passport or visa;
272	(e)  As a prerequisite to exercising custody or visitation,
273	a requirement that the respondent provide:
274	1.  To the United States Department of State's Office of
275	Children's Issues and the relevant foreign consulate or embassy,
276	an authenticated copy of the order detailing passport and travel
277	restrictions for the child;
278	2.  To the court:
279	a.  Proof that the respondent has provided the information
280	in subparagraph 1.; and
281	b.  An acknowledgement in a record from the relevant
282	foreign consulate or embassy that no passport application has
283	been made nor has a passport been issued on behalf of the child;
284	3.  To the petitioner, proof of registration with the
285	United States Embassy or other United States diplomatic presence
286	in the destination country and with the Central Authority for
287	the Hague Convention on the Civil Aspects of International Child
288	Abduction, if that convention is in effect between the United
289	States and the destination country, unless one of the parties
290	objects; and
291	4.  A written waiver under the Federal Privacy Act, 5
292	U.S.C. s. 552(a), as amended, with respect to any document,
293	application, or other information pertaining to the child
294	authorizing the disclosure of such document, application, or
295	other information to the court and the petitioner; or
296	(f)  Upon the petitioner's request, a requirement that the
297	respondent obtain an order from the relevant foreign country
298	containing terms identical to the child custody determination
299	issued in the United States.
300	(4)  In an abduction prevention order, the court may impose
301	conditions on the exercise of custody or visitation that:
302	(a)  Limit visitation or require that visitation with the
303	child by the respondent be supervised until the court finds that
304	supervision is no longer necessary and order the respondent to
305	pay the costs of supervision.
306	(b)  Require the respondent to post a bond or provide other
307	security in an amount sufficient to serve as a financial
308	deterrent to abduction, the proceeds of which may be used to pay
309	for the reasonable expenses of recovery of the child, including
310	reasonable attorney's fees and costs if the child is abducted.
311	(c)  Require the respondent to obtain education on the
312	potentially harmful effects to the child from abduction.
313	(5)  To prevent imminent abduction of a child, a court may:
314	(a)  Issue a warrant to take physical custody of the child
315	under s. 61.608 or the laws of this state other than this part;
316	(b)  Direct the use of law enforcement to take any action
317	reasonably necessary to locate the child, obtain return of the
318	child, or enforce a custody determination under this part or the
319	laws of this state other than this part; or
320	(c)  Grant any other relief allowed under the laws of this
321	state other than this part.
322	(6)  The remedies provided in this part are cumulative and
323	do not affect the availability of other remedies to prevent
324	abduction.
325	61.608  Warrant to take physical custody of a child.--
326	(1)  If a petition under this part contains allegations and
327	the court finds that there is a credible risk that the child is
328	imminently likely to be wrongfully removed, the court may issue
329	an ex parte warrant to take physical custody of the child.
330	(2)  The respondent on a petition under subsection (1) must
331	be afforded an opportunity to be heard at the earliest possible
332	time after the ex parte warrant is executed, but not later than
333	the next judicial day unless a hearing on that date is
334	impossible. In that event, the court shall hold the hearing on
335	the first judicial day possible.
336	(3)  An ex parte warrant under subsection (1) to take
337	physical custody of a child must:
338	(a)  Recite the facts upon which a determination of a
339	credible risk of imminent wrongful removal of the child is
340	based.
341	(b)  Direct law enforcement officers to immediately take
342	physical custody of the child.
343	(c)  State the date and time for the hearing on the
344	petition.
345	(d)  Provide for the safe interim placement of the child
346	pending further order of the court.
347	(4)  If feasible, before issuing a warrant and before
348	determining the placement of the child after the warrant is
349	executed, the court may order a search of the relevant databases
350	of the National Crime Information Center system and similar
351	state databases to determine if either the petitioner or the
352	respondent has a history of domestic violence, stalking, or
353	child abuse or neglect.
354	(5)  The petition and warrant must be served on the
355	respondent when or immediately after the child is taken into
356	physical custody.
357	(6)  A warrant to take physical custody of a child, issued
358	by this state or another state, is enforceable throughout this
359	state. If the court finds that a less intrusive remedy is not
360	effective, it may authorize law enforcement officers to enter
361	private property to take physical custody of the child. If
362	required by exigent circumstances of the case, the court may
363	authorize law enforcement officers to make a forcible entry at
364	any hour.
365	(7)  If the court finds, after a hearing, that a petitioner
366	sought an ex parte warrant under subsection (1) for the purpose
367	of harassment or in bad faith, the court may award the
368	respondent reasonable attorney's fees, costs, and expenses.
369	61.609  Duration of abduction prevention order.--An
370	abduction prevention order remains in effect until the earliest
371	of:
372	(1)  The time stated in the order;
373	(2)  The emancipation of the child;
374	(3)  The child's attaining 18 years of age; or
375	(4)  The time the order is modified, revoked, vacated, or
376	superseded by a court with jurisdiction under ss. 61.514-61.516.
377	61.610  Application and construction.--In applying and
378	construing this part, consideration must be given to the need to
379	promote uniformity of the law with respect to its subject matter
380	among states that enact the Uniform Child Abduction Prevention
381	Act.
382	61.611  Cooperation between courts; preservation of
383	records.--Sections 61.511-61.513 apply to cooperation and
384	communications among courts in proceedings under this part.
385	61.612  Applicability of federal Electronic Signatures in
386	Global and National Commerce Act.--This part modifies, limits,
387	and supersedes the federal Electronic Signatures in Global and
388	National Commerce Act, 15 U.S.C. ss. 7001 et seq., but does not
389	modify, limit, or supersede s. 101(c) of the act, 15 U.S.C. s.
390	7001(c), or authorize electronic delivery of any of the notices
391	described in s. 103(b) of the act, 15 U.S.C. s. 7003(b).
392	Section 2.  This act shall take effect July 1, 2009.

CODING: Words stricken are deletions; words underlined are additions.