USA – FLORIDA Law and Practice Contributed by: Raymond J. Rafool, II, Seth J. Rutman, Kaylin R. Cohen and Melissa L. Kanoff, Rafool, PLLC
side the country with intent to interfere with someone else’s parental rights. A conviction can mean a fine, up to three years in prison, or both. The takeaway: before a parent books a flight, espe - cially if there is any custody dispute in the picture, they must call a family law attorney. The rules shift quickly once a case is filed, and the criminal exposure is real. 3.2 Steps Taken to Return Abducted Children Steps taken to return abducted children depend on where the child is being taken. If the country is one of the roughly 100 nations that have signed the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the parent left behind has a real tool available: the Convention’s return remedy. In the United States, that remedy is carried out through a law called ICARA, the Interna - tional Child Abduction Remedies Act, found at 22 U.S.C. § 9001 and following. To use it, the left-behind parent can either file an appli - cation with the US Central Authority or go straight to court, filing a petition wherever the child is located. Both state courts and federal district courts can hear these cases; Congress gave them concurrent jurisdic - tion under 22 U.S.C. § 9003 (a). To win, the parent has to show, by a preponderance of the evidence, that the child was “wrongfully removed or retained” as the Convention defines that term. In practice, that means proving three things: the child was living in another signatory country as their habitu - al home right before the removal, the removal or reten - tion broke that country’s custody laws, and the left- behind parent was actually exercising custody rights at the time, or would have been if not for the wrongful removal. Courts deciding these cases apply the Con - vention itself, and can order provisional measures, such as steps to protect the child or prevent them from being moved again, under 22 U.S.C. § 9004. It is worth knowing that establishing wrongful removal does not automatically end the case. The parent who took the child can still raise defences built into the Convention itself, such as a grave risk of harm to the child, a mature child’s own objection to returning, or
the case having gone unaddressed for so long that the child is now settled in the new country. Those defenc - es are often where these cases are actually won or lost, and that nuance is worth including if readers are to understand this is not a rubber stamp. 3.3 Hague Convention on the Civil Aspects of International Child Abduction Florida is a state within the United States, and it is a contracting state to the 1980 Hague Convention, implemented by the International Child Abduction Remedies Act. International child abduction cases are inherently complex and emotional. It is important to seek experienced legal assistance and to do so quickly. What follows is the position in Florida courts. Hague Convention Articles 7 (g) and 25 Article 7 (g) of the Convention requires Central Author - ities to provide or facilitate the provision of legal aid and advice. Article 25 requires Contracting States to provide applicants with the same legal aid available to their own nationals. In practice, referrals to pro bono attorneys and to organisations such as the National Center for Missing & Exploited Children (NCMEC), which maintains a network of pro bono attorneys for Hague cases, exist. Florida does not have a dedicated state-funded Hague legal aid programme, but parents may access pro bono networks through the Florida Bar’s referral services and NCMEC. Hague Convention cases are designed to be resolved quickly, typically within weeks to a few months in US federal courts, which prioritise these cases. The Con - vention anticipates that cases will be resolved within six weeks. Specifically, Article 11 of the Convention says that the central authority of either country or the parent who is requesting return of the child may request a statement for the reasons of the delay if not done within six weeks. ICARA cases are bench trials (no jury), and courts are expected to act expeditiously given the Convention’s prompt return mandate. See the Travel State website for detail. As the Supreme Court stated in Abbott v Abbott , 560 U.S. 1 (2010), the Convention’s primary function is to provide a process for the prompt return of a child wrongfully removed to or retained in another country.
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