This is the second post in my series on the handling of cases when a Melbourne, Florida parent’s child is being withheld by their counterpart. My last post provided an overview of topics which this series will be addressing and it stressed the need to speak with an attorney if you find yourself in such a situation. It is vital that you speak with counsel and that you do not try to take matters into your own hands. In this post I will discuss another important topic – the first steps one should take when they feel their child has been kidnapped by the other parent. If you require assistance then call my office to speak with a lawyer.
Parental abduction may have occurred if a Melbourne parent is holding the child in violation of the current custody order
A Florida parent can only be considered as abducting or unlawfully withholding the child if they are doing so in violation of a Court order. Our state’s child custody laws presume that each parent has equal rights to the child. This means that if no custody or timeshare order is in place then the parent who currently has the child is not obligated to allow their counterpart to see him or her. Likewise, when the other parent has the child then they will be under no obligation to grant visitation or to turn him or her over to their counterpart. This means that if a parent is refusing to follow a schedule which the parties have traditionally utilized, but there is no court order in place, then it is irrelevant that the parties have traditionally had a schedule. Not turning the child over would not constitute abduction, kidnapping, or illegal withholding under such circumstances.
If a Court order is in place then the parents are required to follow it. This means that if a parent is required to return the child on Friday night then they may be illegally withholding the child if they fail to do so. Holding the child in violation of the Court’s schedule, and refusing to return them, will potentially be considered as illegally withholding the child and the other parent may be able to take legal action.
Melbourne area Family Law Judges will not typically find minor delays to be “child abduction”
It is important to understand that parents must be reasonable with one another. Say, for example, that the Court’s order says that the child is to be returned at 5pm on Friday night. Now say that the returning parent has car problems or some other one time issue and, as a result, they do not return the child until the next morning. The Court would be unlikely to view such circumstances as an intentional effort to deprive the other parent of time with the child. Courts will typically look at such matters in a larger context and small delays or one-time problems will typically not be found to constitute illegally withholding the child.
If your counterpart is refusing to follow your child custody order then it is important that you speak to a Melbourne lawyer for assistance. My office has handled many parental abduction cases and we are ready to assist you. Call today to speak with an attorney. My office also services clients in the cities of Titusville, Cocoa, Palm Bay, Grant, Valkaria, and Rockledge, as well as in the Indian River County areas of Fellsmere, Sebastian, Vero Beach, Indian River Shores, and Orchid.