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Ely
Ely, Counselor at Law
Category: Family Law
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My brother lived in South Dakota and has his two children,

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My brother lived in South Dakota and has his two children, the mother of the children left for 5 days out of the blue, he got up and left south dakota believing that she was not going to return and came to california with both children, one of the children is a member of their tribe, we know they have no jurisdiction here in california, but what are the consequences since one of the children is a member, but not the other? Mother always leaves for days and comes back, but this time he thought she would not returned, my brother is very scared because we know that they can file federal charges, but we are not sure what that means.
Submitted: 1 year ago.
Category: Family Law
Expert:  Ely replied 1 year ago.
Hello, my name is Ely. Welcome to JustAnswer. Please note: (1) this is general information only, not legal advice; and (2) my function is to give you honest information and not necessarily to tell you what you wish to hear. There may be a slight delay between your follow ups and my replies as I reply.

I am very sorry for your brother's situation. What you are asking about is essentially the custodial interference laws of the states involved - can what he did be called custodial interference?

SOUTH DAKOTA
In SD, this is codified under S.C. Code Ann. §16-17-495(A)(2). You can find this here.

Custodial interference only applies when there is a court order and the parent takes the child out of state, disregarding it, or, the parent flees the state knowing that there is litigation pending.

This was not the case here. So no custodial interference in SD, arguably.

CALIFORNIA
This is handled under Cal. Penal Code §278.5 See here. Again, notice that there is a key towards malicious behavior and intent for depriving the other parent of custody. This was not the case here, so CA also should not see this was custodial interference.

FEDERAL ISSUE & TRIBAL COURT
Federal custodial interference laws are under the Federal Parental Kidnapping Prevention Act. You can see it here. They do not apply either. I am not sure who told you that your brother is liable for federal charges, but this is simply not true.

The fact that one child belongs to a tribe complicates the matter in that that child's custody matters may be in tribal court. However, your brother has the option of trying to lock jurisdiction where he is now using emergency reasons under the Uniform Child Custody Jurisdiction And Enforcement Act. Read more about it here.

Ergo, your brother is not in criminal danger here, but, should want to act quick to lock custody in the state where he is in now, possibly.

Good luck!

IMPORTANT: I hope this finds you well. Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating.
Customer: replied 1 year ago.

a day after he filed for emergency custody, we got a court paper stating that mom had given tempporary custody of the children and the courts granted it. so what happens to the petition he filed since they got to the courts first? mom has threatened, me, his sister where he resides at the moment and the person who gave him a ride to the bus station, which i believe is just talk, but i am not easily intimidated by threats, but i want to do my home work to protect the children from an unstable home. When my brother called the cheyenne river sioux tribal court, a clerk told him he needed to return them immediately.

Expert:  Ely replied 1 year ago.
L,

You did not tell me that there were orders in place already. Just to clarify, the mother had already filed for custody and RECEIVED IT, before he tried to file for custody in a different state, correct?
Customer: replied 1 year ago.

there was no orders in place, my brother left SD on feb 18, then we got papers dated on feb 19, and it does state that dad can have visitation, but cannot take chidren off the crst reservation, but he had already left.

Expert:  Ely replied 1 year ago.
L,

Okay, thank you. This changes the dynamic, then.

What has happened here is that she filed in Court at the time or right after the children had left. In accordance with UCCJEA, the Court where the children have lived for 6+ months has the original jurisdiction, so she is correct.

Now, he is not at criminal risk if he obliges the Court and brings the kids back. He may also file to modify the current order - in that Court. But if he continues to not provide the kids, then this would be custodial interference, I am afraid.

So he can still battle for the custody, but he has to do so in that Court. The decision for custody will be made "in the best interest" of the children.

Surely, you prefer that I tell the truth rather than what you wish to hear. Because it reflects very poorly on me unless you press one of the top three faces, keep this in mind when rating my and please do not punish me for being honest. I understand that this may not be easy to hear, and I empathize.

IMPORTANT: I hope this finds you well. Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating.
Customer: replied 1 year ago.

No worries, i need to know the truth and not hot air. what if they verbally come to an agreement, to let them stay here until he can get money to get back, again, a verbal agreement. Can I get in trouble(sister)?

Expert:  Ely replied 1 year ago.
L,

Thank you.

what if they verbally come to an agreement, to let them stay here until he can get money to get back, again, a verbal agreement.

It has to be in WRITING. No verbal agreement is enough, and she can always claim that it never took place. Even if the agreement is in writing, it is still "trumped" by the order of the court and she can always fall back on it instead.

You - yourself - cannot get into trouble if the mother provides a WRITTEN permission for them to stay here for a certain duration. This is proof that the mother cannot claim custodial interference. It needs to be in writing.

IMPORTANT: I hope this finds you well. Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating.
Customer: replied 1 year ago.

what happens to the emergency petition that he submitted? how does it work since they submitted the other one first?

Expert:  Ely replied 1 year ago.
Since the Court back where she is already has jurisdiction, this one he filed in should be dismiss his petition pursuant to UCCJEA as soon as the Court realizes the court where she is already has jurisdiction.

IMPORTANT: I hope this finds you well. Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating.
Customer: replied 1 year ago.

if they get back together and he returns to SD, what can he do to prepare himself, as far a court papers, so that he does not have to return the children because of jurisdiction?

Expert:  Ely replied 1 year ago.
if they get back together and he returns to SD, what can he do to prepare himself, as far a court papers, so that he does not have to return the children because of jurisdiction

Then once this matter is dropped - assuming it is - in the future:

The state where the children have lived for 6+ months always holds the initial custody dispute jurisdiction. If they begin arguing again, he may wish to:

1) file there, or
2) come to CA but file FIRST before her, and argue that CA should take jurisdiction because the tribal court is not competent.

Of course, in either scenario, coordinating with an attorney has the best chance of being successful.

IMPORTANT: I hope this finds you well. Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating.
Customer: replied 1 year ago.

thank you, XXXXX XXXXX question, what are his consequences if he does not return the children?

Expert:  Ely replied 1 year ago.
Hello,

You are quite welcome.

what are his consequences if he does not return the children?

He may be charged with custodial interference. In SC, this is a felony that can lead up to five years in jail and fined.

In CA, this is also a felony and he can be imprisoned for up to three years and fined.

IMPORTANT: I hope this finds you well. Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating.
Customer: replied 1 year ago.

did you mean SD not SC?

Expert:  Ely replied 1 year ago.
L,

Apologies, I did mean SD. Under S.D. Codified Laws §22-19-9, the punishment for a first time is a misdemeanor, up to a year in jail. The rest of the answer stays as is.

Again, my apologies.

IMPORTANT: I hope this finds you well. Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating.
Customer: replied 1 year ago.

I want to thank you for your tremendous help and expertise, I am most satisfied with the valuable information you provided to me, definitely worth the money.

Expert:  Ely replied 1 year ago.
You are very welcome and thank you very much for you kind words – they make my day. Good luck, and please don't forget to rate my answer in one of top three faces and then SUBMIT – it is the only way I get credit for my time with you.
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 86685
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and other Family Law Specialists are ready to help you
Expert:  Ely replied 1 year ago.
Thank you for your generosity.

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