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Brandon M.
Brandon M., Family Law Attorney
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Experience:  Attorney experienced in all aspects of family law
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I am afraid my wife will be taking our daughter and leaving

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I am afraid my wife will be taking our daughter and leaving Texas with her to go to aother state where she has relatives. She has left like this before when she gets mad at various issues here. Last time she was gone for almost 5 months. She already told me her parents got her a ticket and she is leaving next week..Everyone who knows her here says she is probably bipolar, even her own family in other state has said she needs help. While I am filing for divorce, what can I file in the meantime to keep her from leaving the state with our child?
Submitted: 1 year ago.
Category: Family Law
Expert:  xavierjd replied 1 year ago.
Thank you for using JustAnswer.com It will be my pleasure to assist you today.

Have you filed for divorce yet?

If not, can you have it filed before she leaves?
Customer: replied 1 year ago.

No I have not, I am going monday to courthouse to file if I can find correct paperwork online to file.


 


I don't know what day she is leaving, last time I didn't find out about it until the day she left.

Customer: replied 1 year ago.
Relist: Answer came too late.
have waited over 1/2 hour, needed the info now.
Expert:  Brandon M. replied 1 year ago.
Hello there.

Thank you for your question. First, I should be clear that because the nuances of every situation are different, this information should not be construed as complete or advice without consulting with counsel in person. That said, there are a few things that you should know.

First, if a parent takes their child out of state, jurisdiction over child custody does not automatically and immediately move with the child. When a child's home state is Texas, Texas may retain jurisdiction over custody of the child for up to six months after the child leaves. This means that a child who's home state is Texas could be moved out of Texas in May 2013 by one parent, and the other parent could generally file for custody in the Texas courts as late as November 2013. So if "mom" decides to pick up and leave the state of Texas with her child, nothing would generally prevent "dad" from turning around a day, a week, or a month later and filing in the Texas courts for an order to move the child back to Texas. So it is fortunately not like the days of the wild west. There is a uniform set of laws called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) that is basically designed to protect against the very concern that you have.

That said, I can understand wanting to get an order preventing a child from lawfully being taken from the state in the first place.

I'm guessing that the other attorney asked about whether you are planning to divorce because child custody is automatically addressed when a party files for divorce. If the intention is to divorce, it usually just makes sense to file for divorce and resolve the issues in one fell swoop. However, if the desire is to not immediately file for divorce, a child custody order that keeps the child in state can still be requested through a "Suit Affecting the Parent-Child Relationship" (SAPCR). I will direct you generally to the following website:

http://texaslawhelp.org/resource/sapcr-contested

Because it is difficult to anticipate what sort of details would and would not be helpful to you, and because of the volume of information that could be potentially needed, I would like to explain the process generally, direct you to the aforementioned website for details, and then invite you to let me know if you have any remaining questions.

Generally, an order cannot be made without due process. Due process means adequate notice of a hearing, and the right to be heard. "Adequate notice" usually means several weeks. However, the court understands that it sometimes needs to shoot first and ask questions later. In those instances, the court may make a temporary order (sometimes called an "ex parte" [pronounced "ex-par-tay"] order). The rationale is that there is an urgent need for an order, so the court will suspend the other party's right to due process temporarily in order to protect the status quo.

To get a temporary order, the party would file their Petition for SAPCR, and also an affidavit explaining why the temporary order is necessary. Generally, to maximize the chance of success, the requested temporary order should be as non-restrictive as possible. The party would then, at the time of filing, need to set a temporary orders hearing at the court of filing.

The process for setting a temporary orders hearing is different in each of Texas' 254 counties, so there is no way to avoid checking with the court's local rules or family law clerk for instructions. The court's website sometimes has the specific process for asking for a temporary orders hearing posted, but not always. Oftentimes, the process is as simple as giving the other party 24 hours notice by telephone and then filling out a form given to you by the court saying that you gave the other party 24 hours notice.

I hope that gets you off on the right foot. Let me know if further clarification is needed, and please feel free to leave a positive rating for me once you are completely finished; it does not cost anything extra to do so, and it is the only way I may be compensated for my time. Thanks.
Customer: replied 1 year ago.

The info you gave is a great start but if she takes the child out of state before I file, and is required by law to come back to this state for the hearing, what happens if she claims she can't afford to come back or flat out refuses or comes and doesn't bring the child back? How does that help me get my child back?

Expert:  Brandon M. replied 1 year ago.
Those are great questions.

I feel that I need to first address your last question. You asked "how does that help me get my child back". I should point out that you could get an order mandating that the child stay in the state and the mother could ignore the order and relocate the child anyway. The piece of paper on which the order is written isn't going to throw itself in front of her car and physically prevent her from leaving the state. So regardless of whether you get the order before she leaves, or whether you get the order to return after she leaves, it's always a possibility that you are going to have to take steps after an order is broken in order to enforce it. People are typically smart enough to know to obey a court's order once it is issued, but the courts are backed by the full weight of the law and its law enforcement powers.

"Contempt of court" refers to the willful, knowing disobedience of a court's order. It is a criminal charge that is punishable by fine and incarceration. When a parent willingly and knowingly violates a child custody order, it is also deemed not in the best interests of the child and grounds for modifying the custody order against that parent's favor.

So one possible outcome if the mother in a custody situation "flat out refuses" to return the child to the state when ordered to do so by the court is that the sheriff's office local to where she is located goes to her home, arrests her, and extradites her back to Texas where she would face criminal prosecution and potentially have her custodial rights completely taken away. Ideally, the father would coordinate with law enforcement so he could receive the child before or contemporaneous with the mother's arrest.

I've handled hundreds if not thousands of custody cases, and I don't recall a parent ever arguing that they failed to return a child because they can't afford it as ordered by the court. That said, if it did hypothetically happen, there would typically be two options. The first would be for the father to just pay for the transportation of the child back to the home state and seek an order of reimbursement thereafter. The second would be to go ahead and ask for law enforcement's intervention; when the mother is thereafter prosecuted for contempt of court, she can raise the defense that her failure to obey the court's order was not "willful" because she truly lacked the ability to return the child as ordered by the court. If she produces sufficient evidence of her inability to return the child, she would not be convicted, but the child would still be in the father's custody at that point.

Does that make sense?
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12237
Experience: Attorney experienced in all aspects of family law
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