Business Law 101 / KIDNAPPING AND INTERFERING WITH CHILD CUSTODY

By Albert Kelley

Often in television shows you will see a character grab another character by arm and restrain them from walking away.  Technically, that is a crime. In Florida, any time you restrain or confine another person by force or threat against their will, it is considered false imprisonment.  By itself, false imprisonment is a third-degree felony.  However, if the purpose of the false imprisonment is to hold the person for ransom or reward, or to commit a felony or to inflict harm on the victim or terrorize the victim or another person or to interfere with any government or political function, the charge is kidnapping and becomes a first degree felony.

There is also a difference based on the age of the victim.  If the victim is under the age of 13 and during the false imprisonment the offender commits specific offenses, including sexual battery, aggravated child abuse, molestation, exploitation, or forces the child into prostitution, the crime becomes a first-degree felony.   In addition, the court is allowed to issue separate judgments for the false imprisonment charge and the specific offense. If the offender commits the charge of kidnapping on a person under the age of 13 and commits one of the enumerated specific offenses, the charge becomes a life felony.

But there doesn’t have to be an actual restraint when dealing with children.  If an adult entices, lures, or attempts to entice of lure a child under the age of 12 into a building or vehicle for anything other than a lawful reason, they have committed a first-degree misdemeanor. If the offender has previously been convicted of luring or attempting to lure a child into a building or vehicle, the penalty increases to a third-degree felony. There are defenses to this action, however.  If the offender reasonably believes their actions are necessary to prevent the child from being injured, if the person lures or entices the child into the building or vehicle for a lawful reason (such as a store owner inviting a child into the store to shop or a bus driver enticing a child onto a school bus), or if the persons actions were reasonable and the person did not have any intent to harm the health, safety or welfare of the child.  These are absolute defenses and will defeat the charge of luring or enticing.

A related charge is interfering with child custody. If a person takes a child away from their parent, guardian or public agency, or helps another person take the child away, they have committed a third-degree felony.  This applies even if there is no order of custody.  If one parent interferes with the other parent’s right to custody, it is again a third-degree felony.  However, it is a defense if the offender believes their actions are necessary to protect the child, if the offender is the victim of domestic violence or about to become the victim of domestic violence and believes their actions are necessary to escape the violence or protect the minor from exposure to domestic violence, or if the child instigates the removal without enticement and the offender reasonably relied on that instigation.

A parent who has legal custody and is the victim of domestic violence, believes they are about to become the victim of domestic violence or believes they must protect the child a danger to their welfare may lawfully seek shelter, however, within 10 days they must file a report with the sheriff or state attorney, provide the sheriff or state attorney with any change of address and within a reasonable time must commence custody proceedings.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University.  He is also the author of four law books: (“Basics of Business Law” “Basics of Florida’s Small Claims Court”, “Basics of Florida’s Landlord/Tenant Law” and “Basics of Starting a Florida Business” (Absolutely Amazing e-Books)). This article is being offered as a public service and is not intended to provide specific legal advice.  If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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