Florida Senate - 2010                             CS for SB 1862
       
       
       
       By the Committee on Criminal and Civil Justice Appropriations;
       and Senator Sobel
       
       
       
       604-04278-10                                          20101862c1
    1                        A bill to be entitled                      
    2         An act relating to child abduction prevention;
    3         providing a short title; amending s. 61.45, F.S.;
    4         authorizing additional persons to move to have certain
    5         restrictions placed in parenting plans upon showing of
    6         a risk that one party may violate the court’s
    7         parenting plan by removing a child from this state or
    8         country or by concealing the child’s whereabouts;
    9         authorizing courts to impose certain restrictions in
   10         parenting plans upon a specified finding; authorizing
   11         a court to impose certain restrictions in addition to
   12         or in lieu of a requirement that a child’s passport be
   13         surrendered; authorizing a court to impose specified
   14         restrictions upon entry of an order to prevent removal
   15         of a child from this state or country; providing
   16         additional factors that may be considered in assessing
   17         the risk that a party may violate a parenting plan by
   18         removing a child from this state or country or by
   19         concealing the child’s whereabouts; providing that
   20         violations may subject a violator to specified
   21         penalties or other consequences; providing an
   22         effective date.
   23  
   24  Be It Enacted by the Legislature of the State of Florida:
   25  
   26         Section 1. This act may be cited as the “Child Abduction
   27  Prevention Act.”
   28         Section 2. Section 61.45, Florida Statutes, is amended to
   29  read:
   30         61.45 Court-ordered parenting plan; risk of violation;
   31  bond.—
   32         (1) In any proceeding in which the court enters a parenting
   33  plan, including a time-sharing schedule, including in a
   34  modification proceeding, upon the presentation of competent
   35  substantial evidence that there is a risk that one party may
   36  violate the court’s parenting plan by removing a child from this
   37  state or country or by concealing the whereabouts of a child, or
   38  upon stipulation of the parties, upon the motion of another
   39  individual or entity having a right under the law of this state,
   40  or if the court finds evidence that establishes credible risk of
   41  removal of the child, the court may:
   42         (a) Order that a parent may not remove the child from this
   43  state without the notarized written permission of both parents
   44  or further court order;
   45         (b) Order that a parent may not remove the child from this
   46  country without the notarized written permission of both parents
   47  or further court order;
   48         (c) Order that a parent may not take the child to a country
   49  that has not ratified or acceded to the Hague Convention on the
   50  Civil Aspects of International Child Abduction unless the other
   51  parent agrees in writing that the child may be taken to the
   52  country;
   53         (d) Require a parent to surrender the passport of the child
   54  or require that:
   55         1. The petitioner place the child’s name in the Children’s
   56  Passport Issuance Alert Program of the United States Department
   57  of State;
   58         2. The respondent surrender to the court or the
   59  petitioner’s attorney any United States or foreign passport
   60  issued in the child’s name, including a passport issued in the
   61  name of both the parent and the child; and
   62         3. The respondent not apply on behalf of the child for a
   63  new or replacement passport or visa; or
   64         (e) Require that a party to post bond or other security in
   65  an amount sufficient to serve as a financial deterrent to
   66  abduction, the proceeds of which may be used to pay the
   67  reasonable expenses of recovery of the child, including
   68  reasonable attorney’s fees and costs, if the child is abducted.
   69         (2) If the court enters a parenting plan, including a time
   70  sharing schedule, including in a modification proceeding, that
   71  includes a provision entered under paragraph (1)(b) or paragraph
   72  (1)(c), a certified copy of the order should be sent by the
   73  parent who requested the restriction to the Passport Services
   74  Office of the United States Department of State requesting that
   75  they not issue a passport to the child without their signature
   76  or further court order.
   77         (3) If the court enters an order under paragraph (1)(a) or
   78  paragraph (1)(b) to prevent the removal of the child from this
   79  state or country, the order may include one or more of the
   80  following:
   81         (a) An imposition of travel restrictions that require that
   82  a party traveling with the child outside a designated geographic
   83  area provide the other party with the following:
   84         1. The travel itinerary of the child.
   85         2. A list of physical addresses and telephone numbers at
   86  which the child can be reached at specified times.
   87         3. Copies of all travel documents.
   88         (b) A prohibition of the respondent directly or indirectly:
   89         1. Removing the child from this state or country or another
   90  specified geographic area without permission of the court or the
   91  petitioner’s written consent;
   92         2. Removing or retaining the child in violation of a child
   93  custody determination;
   94         3. Removing the child from school or a child care or
   95  similar facility; or
   96         4. Approaching the child at any location other than a site
   97  designated for supervised visitation.
   98         (c) A requirement that a party register the order in
   99  another state as a prerequisite to allowing the child to travel
  100  to that state.
  101         (d) As a prerequisite to exercising custody or visitation,
  102  a requirement that the respondent provide the following:
  103         1. An authenticated copy of the order detailing passport
  104  and travel restrictions for the child to the Office of
  105  Children’s Issues within the Bureau of Consular Affairs of the
  106  United States Department of State and the relevant foreign
  107  consulate or embassy.
  108         2. Proof to the court that the respondent has provided the
  109  information in subparagraph 1.
  110         3. An acknowledgment to the court in a record from the
  111  relevant foreign consulate or embassy that no passport
  112  application has been made, or passport issued, on behalf of the
  113  child.
  114         4. Proof to the petitioner and court of registration with
  115  the United States embassy or other United States diplomatic
  116  presence in the destination country and with the destination
  117  country’s central authority for the Hague Convention on the
  118  Civil Aspects of International Child Abduction, if that
  119  convention is in effect between this country and the destination
  120  country, unless one of the parties objects.
  121         5. A written waiver under the Privacy Act, 5 U.S.C. s.
  122  552a, as amended, with respect to any document, application, or
  123  other information pertaining to the child or the respondent
  124  authorizing its disclosure to the court.
  125         6. A written waiver with respect to any document,
  126  application, or other information pertaining to the child or the
  127  respondent in records held by the United States Bureau of
  128  Citizenship and Immigration Services authorizing its disclosure
  129  to the court.
  130         7. Upon the court’s request, a requirement that the
  131  respondent obtain an order from the relevant foreign country
  132  containing terms identical to the child custody determination
  133  issued in this country.
  134         8. Upon the court’s request, a requirement that the
  135  respondent be entered in the Prevent Departure Program of the
  136  United States Department of State or a similar federal program
  137  designed to prevent unauthorized departures to foreign
  138  countries.
  139         (e) The court may impose conditions on the exercise of
  140  custody or visitation that limit visitation or require that
  141  visitation with the child by the respondent be supervised until
  142  the court finds that supervision is no longer necessary and
  143  orders the respondent to pay the costs of supervision.
  144         (4)(3) In assessing the need for a bond or other security,
  145  the court may consider any reasonable factor bearing upon the
  146  risk that a party may violate a parenting plan by removing a
  147  child from this state or country or by concealing the
  148  whereabouts of a child, including but not limited to whether:
  149         (a) A court has previously found that a party previously
  150  removed a child from Florida or another state in violation of a
  151  parenting plan, or whether a court had found that a party has
  152  threatened to take a child out of Florida or another state in
  153  violation of a parenting plan;
  154         (b) The party has strong family and community ties to
  155  Florida or to other states or countries, including whether the
  156  party or child is a citizen of another country;
  157         (c) The party has strong financial reasons to remain in
  158  Florida or to relocate to another state or country;
  159         (d) The party has engaged in activities that suggest plans
  160  to leave Florida, such as quitting employment; sale of a
  161  residence or termination of a lease on a residence, without
  162  efforts to acquire an alternative residence in the state;
  163  closing bank accounts or otherwise liquidating assets; or
  164  applying for a passport or visa; or obtaining travel documents
  165  for the respondent or the child;
  166         (e) Either party has had a history of domestic violence as
  167  either a victim or perpetrator, child abuse or child neglect
  168  evidenced by criminal history, including but not limited to,
  169  arrest, an injunction for protection against domestic violence
  170  issued after notice and hearing under s. 741.30, medical
  171  records, affidavits, or any other relevant information; or
  172         (f) The party has a criminal record;.
  173         (g) The party is likely to take the child to a country
  174  that:
  175         1. Is not a party to the Hague Convention on the Civil
  176  Aspects of International Child Abduction and does not provide
  177  for the extradition of an abducting parent or for the return of
  178  an abducted child;
  179         2. Is a party to the Hague Convention on the Civil Aspects
  180  of International Child Abduction, but:
  181         a. The Hague Convention on the Civil Aspects of
  182  International Child Abduction is not in force between this
  183  country and that country;
  184         b. Is noncompliant or demonstrating patterns of
  185  noncompliance according to the most recent compliance report
  186  issued by the United States Department of State; or
  187         c. Lacks legal mechanisms for immediately and effectively
  188  enforcing a return order under the Hague Convention on the Civil
  189  Aspects of International Child Abduction;
  190         3. Poses a risk that the child’s physical or emotional
  191  health or safety would be endangered in the country because of
  192  specific circumstances relating to the child or because of human
  193  rights violations committed against children;
  194         4. Has laws or practices that would:
  195         a. Enable the respondent, without due cause, to prevent the
  196  petitioner from contacting the child;
  197         b. Restrict the petitioner from freely traveling to or
  198  exiting from the country because of the petitioner’s gender,
  199  nationality, marital status, or religion; or
  200         c. Restrict the child’s ability to legally leave the
  201  country after the child reaches the age of majority because of a
  202  child’s gender, nationality, or religion;
  203         5. Is included by the United States Department of State on
  204  a current list of state sponsors of terrorism;
  205         6. Does not have an official United States diplomatic
  206  presence in the country; or
  207         7. Is engaged in active military action or war, including a
  208  civil war, to which the child may be exposed;
  209         (h) The party is undergoing a change in immigration or
  210  citizenship status that would adversely affect the respondent’s
  211  ability to remain in this country legally;
  212         (i) The party has had an application for United States
  213  citizenship denied;
  214         (j) The party has forged or presented misleading or false
  215  evidence on government forms or supporting documents to obtain
  216  or attempt to obtain a passport, a visa, travel documents, a
  217  social security card, a driver’s license, or other government
  218  issued identification card or has made a misrepresentation to
  219  the United States government;
  220         (k) The party has used multiple names to attempt to mislead
  221  or defraud;
  222         (l) The party has been diagnosed with a mental health
  223  disorder that the court considers relevant to the risk of
  224  abduction; or
  225         (m) The party has engaged in any other conduct that the
  226  court considers relevant to the risk of abduction.
  227         (5)(4) The court must consider the party’s financial
  228  resources prior to setting the bond amount under this section.
  229  Under no circumstances may the court set a bond that is
  230  unreasonable.
  231         (6)(5) Any deficiency of bond or security does shall not
  232  absolve the violating party of responsibility to pay the full
  233  amount of damages determined by the court.
  234         (7)(6)(a) Upon a material violation of any parenting plan
  235  by removing a child from this state or this country or by
  236  concealing the whereabouts of a child, the court may order the
  237  bond or other security forfeited in whole or in part.
  238         (b) This section, including the requirement to post a bond
  239  or other security, does not apply to a parent who, in a
  240  proceeding to order or modify a parenting plan or time-sharing
  241  schedule, is determined by the court to be a victim of an act of
  242  domestic violence or provides the court with reasonable cause to
  243  believe that he or she is about to become the victim of an act
  244  of domestic violence, as defined in s. 741.28. An injunction for
  245  protection against domestic violence issued pursuant to s.
  246  741.30 for a parent as the petitioner which is in effect at the
  247  time of the court proceeding shall be one means of demonstrating
  248  sufficient evidence that the parent is a victim of domestic
  249  violence or is about to become the victim of an act of domestic
  250  violence, as defined in s. 741.28, and shall exempt the parent
  251  from this section, including the requirement to post a bond or
  252  other security. A parent who is determined by the court to be
  253  exempt from the requirements of this section must meet the
  254  requirements of s. 787.03(6) if an offense of interference with
  255  the parenting plan or time-sharing schedule is committed.
  256         (8)(7)(a) Upon an order of forfeiture, the proceeds of any
  257  bond or other security posted pursuant to this subsection may
  258  only be used to:
  259         1. Reimburse the nonviolating party for actual costs or
  260  damages incurred in upholding the court’s parenting plan.
  261         2. Locate and return the child to the residence as set
  262  forth in the parenting plan.
  263         3. Reimburse reasonable fees and costs as determined by the
  264  court.
  265         (b) Any remaining proceeds shall be held as further
  266  security if deemed necessary by the court, and if further
  267  security is not found to be necessary; applied to any child
  268  support arrears owed by the parent against whom the bond was
  269  required, and if no arrears exists; all remaining proceeds will
  270  be allocated by the court in the best interest of the child.
  271         (9)(8) At any time after the forfeiture of the bond or
  272  other security, the party who posted the bond or other security,
  273  or the court on its own motion may request that the party
  274  provide documentation substantiating that the proceeds received
  275  as a result of the forfeiture have been used solely in
  276  accordance with this subsection. Any party using such proceeds
  277  for purposes not in accordance with this section may be found in
  278  contempt of court.
  279         (10) A violation of this section may subject the party
  280  committing the violation to civil or criminal penalties or a
  281  federal or state warrant under federal or state laws, including
  282  the International Parental Kidnapping Crime Act, and may subject
  283  the violating parent to apprehension by a law enforcement
  284  officer.
  285         Section 3. This act shall take effect January 1, 2011.