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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 16213
Experience:  Licensed Texas General Practice Attorney
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My ex-wife, the custodial parent as per the divorce decree,

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My ex-wife, the custodial parent as per the divorce decree, refuses to accept our 14 year old daughter Nicole into her home. Nicole is currently in a temporary home for adolescents in Minneapolis. Nicole has been diagnosed with depression and reactive attachment disorder, self mutilates and has other behavioral issues. I agreed to take temporary custody of Nicole from March 8th to May 8th. I returned Nicole to her mother on May 6th, at which time she refused Nicole into her home. She stayed at a friends house that night. The next day Nicole informed her school counselor that she had no home to go to. The school placed her into the temporary housing. IS THIS CONSIDERED CHILD ABANDONMENT? I will accept Nicole into my home AFTER her abusive mother is charged with this crime.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

Even if it is considered abandonment, that is not a crime. "Neglect or endangerment of child" is a crime:

ScottyMacEsq :

609.378 NEGLECT OR ENDANGERMENT OF CHILD.
Subdivision 1.Persons guilty of neglect or endangerment.


(a)(1) A parent, legal guardian, or caretaker who willfully deprives a child of necessary food, clothing, shelter, health care, or supervision appropriate to the child's age, when the parent, guardian, or caretaker is reasonably able to make the necessary provisions and the deprivation harms or is likely to substantially harm the child's physical, mental, or emotional health is guilty of neglect of a child and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both. If the deprivation results in substantial harm to the child's physical, mental, or emotional health, the person may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both. If a parent, guardian, or caretaker responsible for the child's care in good faith selects and depends upon spiritual means or prayer for treatment or care of disease or remedial care of the child, this treatment or care is "health care," for purposes of this clause.


(2) A parent, legal guardian, or caretaker who knowingly permits the continuing physical or sexual abuse of a child is guilty of neglect of a child and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.


(b) A parent, legal guardian, or caretaker who endangers the child's person or health by:


(1) intentionally or recklessly causing or permitting a child to be placed in a situation likely to substantially harm the child's physical, mental, or emotional health or cause the child's death; or


(2) knowingly causing or permitting the child to be present where any person is selling, manufacturing, possessing immediate precursors or chemical substances with intent to manufacture, or possessing a controlled substance, as defined in section 152.01, subdivision 4, in violation of section 152.021, 152.022, 152.023, 152.024, or(NNN) NNN-NNNN is guilty of child endangerment and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.


If the endangerment results in substantial harm to the child's physical, mental, or emotional health, the person may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.


This paragraph does not prevent a parent, legal guardian, or caretaker from causing or permitting a child to engage in activities that are appropriate to the child's age, stage of development, and experience, or from selecting health care as defined in subdivision 1, paragraph (a).


(c) A person who intentionally or recklessly causes a child under 14 years of age to be placed in a situation likely to substantially harm the child's physical health or cause the child's death as a result of the child's access to a loaded firearm is guilty of child endangerment and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.


If the endangerment results in substantial harm to the child's physical health, the person may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.
Subd. 2.Defenses.


It is a defense to a prosecution under subdivision 1, paragraph (a), clause (2), or paragraph (b), that at the time of the neglect or endangerment there was a reasonable apprehension in the mind of the defendant that acting to stop or prevent the neglect or endangerment would result in substantial bodily harm to the defendant or the child in retaliation.

ScottyMacEsq :

Child abandonment is a basis to have a parents rights terminated, but abandonment merely means not being involved in the child's life with the intent to abandon. That, in and of itself, is not a crime, however neglect or endangerment of a child is.

ScottyMacEsq :

Intentionally or recklessly causing or permitting a child to be placed in a situation likely to substantially harm the child's physical, mental, or emotional health or cause the child's death is endangerment and can be prosecuted as a crime.


 

ScottyMacEsq :

Even if she is not prosecuted for this crime, you can still petition the courts for a modification of the custody order due to the material change in circumstances present here.

ScottyMacEsq :

I would say that refusing her a place to stay, such that she would not have anywhere to go, would be endangerment, and could absolutely lead to her being charged with a crime.

ScottyMacEsq :

But ultimately whether or not she is actually charged with a crime is up to the police, but I do think that it is something that the police have the ability to do, and would have probable cause to do so (such that a charge could survive a motion to dismiss).

ScottyMacEsq :

Once this happens, it would be easier to get custody of the child, but the fact that she has refused the child entry into her home would be sufficient a "change in circumstances" that would allow a court to change the custody order, regardless of being charged with or convicted of a crime.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

Melanie (ex-wife) has allowed and encouraged (paid for transportation) Nicole to stay with her boyfriend Dan in Rochester, MN for five days during the Christmas break of this year. Would this be considered endangerment?

ScottyMacEsq :

That's hard to say. If there was adult supervision, probably not.

ScottyMacEsq :

But if it was unsupervised, and she knew it, then it probably would be.

ScottyMacEsq :

Did you have any other questions before you rate this answer?

ScottyMacEsq :

Are you there? Please note that I am still here, awaiting your response.

ScottyMacEsq :

Did you see my response to your follow up question?

Customer:

I hit the return button prematurely. The botXXXXX XXXXXne is that after years of emotional abuse, Nicole is exhibiting self-mutilating behaviors. As stated above, emotional well being is considered in in endangerment cases. Melanie (ex-wife) has repeatedly not included Nicole from family activities I.E. Taking a month long vacation to visit grandma and auntie Claire in Canada and most recently a trip to Captive Island Fla. Both trips with ONLY our biological daughter Montana. Nicole in my niece, we have legal guardianship as Nicoles biological mother had passed. In a nut shell, Melanie has favored her biological daughter over our "adopted" daughter to the point where she requires extreme therapy. I have many examples of emotional abuse. Is there any chance that I could get a judge to see this abuse?

ScottyMacEsq : Yes, certainly in a motion to modify custody (in that the fact that your ex has favored the biological child over your niece, etc...) can absolutely be considered, as well as the emotional consequences of this favoritism.
ScottyMacEsq : As for a crime, that can be considered, but would have to be presented by the prosecutor (in that "you" could not get a judge to see this abuse...)
ScottyMacEsq :

Did you have any other questions before you rate this answer?

Customer:

What should be my first step? Police report? Go to the child protection services?

ScottyMacEsq :

You could actually do both, although a police report would probably be forwarded to CPS.

ScottyMacEsq :

(and this is assuming that the school counselor has not done so already)

Customer:

Thank you.

ScottyMacEsq :

My pleasure.If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX good luck to you!

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