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xavierjd
xavierjd, Lawyer
Category: Family Law
Satisfied Customers: 3400
Experience:  20 yrs exp. in divorce, custody, visitation & support .
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I am married, with 3 children, we have 3 kids but have lived

Customer Question

I am married, with 3 children, we have 3 kids but have lived separately for over 10 years. There is no divorce pending, no custody pending, I have always had the children in my care exclusively. I live in Missouri & want to move to another state for better schooling for my autistic child. Can I legally leave without getting into trouble for parental kidnapping?
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 discussed the move with your wife?

Do you have a legal separation in place?

Thanks
Customer: replied 1 year ago.

I am the wife, and no. He rarely see's the children, & there is no legal separation. We just have not lived together in over 10 years.

Expert:  xavierjd replied 1 year ago.
Hi,

Thanks for the information. I want to look up a few things for you. It may take several minutes, but I will be back with an answer for you asap. I am currently finishing up with another customer. Again, I will be back with your answer shortly.

Thanks for your patience.
Customer: replied 1 year ago.

One more bit of information, he was involved in an accident abut 6 years ago, and had a brain injury. He lives in assisted care & cannot in any way care for the children. He is nearly normal functioning in most ways, but stays where he is.

Expert:  xavierjd replied 1 year ago.
Hi,

The answer to your question is "yes." You COULD possibly be charged with parental kidnapping if you take the children out of state.

Below please find the language of the Parental Kidnapping Statute 565.153:

Parental kidnapping--penalty.

565.153. 1. In the absence of a court order determining rights of custody or visitation to a child, a person having a right of custody of the child commits the crime of parental kidnapping if he removes, takes, detains, conceals, or entices away that child within or without the state, without good cause, and with the intent to deprive the custody right of another person or a public agency also having a custody right to that child.

2. Parental kidnapping is a class D felony, unless committed by detaining or concealing the whereabouts of the child for:

(1) Not less than sixty days but not longer than one hundred nineteen days, in which case, the crime is a class C felony;

(2) Not less than one hundred twenty days, in which case, the crime is a class B felony.

3. A subsequently obtained court order for custody or visitation shall not affect the application of this section.

 

You may request that your spouse agrees to allowing you to leave the state. If your spouse agrees, then even if you are not in divorce proceedings, then you should file a Stipulation and Order for Custody of the Children and to Allow you to Leave the State.

If there is nothing in writing that has been entered with the Court, your spouse MAY file a report with the police department for parental kidnapping. The allegations of the report would be investigated. Once the police finished with it's investigation, the evidence would be presented to the prosecutor. The prosecutor would review the evidence and, if there was enough evidence, a warrant could be issued for your arrest for parental kidnapping.

Since your husband has had virtually no contact with your children, it may be easy to get an Order of Sole Custody of the Children and an Order allowing you to leave the state. However, in order to do so, you will have to open a case in the Family Court and file a Petition for Sole Custody of the Minor Children and Permission to leave the state. You would file the original Petition with the Court, and you must serve your spouse with the Petition. You may wish to hire a process server to serve your spouse with the documents. Once served, the process server would file a Proof of Service with the Court that indicates the date, time and place that your spouse was served.

You must also request a date for hearing at the time you file your Petition. The Court will provide you with a date.

If your spouse fails to Answer your Petition IN WRITING within 30 days, you can file for a Default and Default Judgment for Custody and Permission to Leave the State. If your spouse doesn't respond.

Below please find a link to the form for Petition for Custody of the Minor Children

http://www.courts.mo.gov/sup/index.nsf/9f4cd5a463e4c22386256ac4004a490f/ebf5c010f4c6a7bf86257695006d6b3e/$FILE/Petition%20for%20Child%20Custody%2012-23-09.pdf


I hope you find this information useful.

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions.

Thank you for your business!

Xavierjd

Many customers have asked how they can specifically direct a question to me in the future. If you specifically want me to assist you in your legal matter, just put "xavierjd” in the subject line and I will gladly pick up the question as soon as I am on-line.

***Answers given are for informational purposes only and are not meant to replace the advice or assistance of an attorney licensed to practice law in your state. If you need any more information, please do not hesitate to ask. Thank you!

Customer: replied 1 year ago.
Would another state extradite if I have justified reason for leaving? He has a court appointed guardian, he has seen the children twice in 6 months, and missed the last time (middle child's birthday party).
Expert:  xavierjd replied 1 year ago.
Hi,

It is possible that if you were charged with parental kidnapping, and a warrant for your arrest was issued, you could be extradited back to Missouri to face the charges. HOWEVER, Missouri must pay for the costs associated with your extradition from the other state. Since most states are currently facing "budget restraints/crunches," it is quite possible that you won't be extradited. But, if you return to Missouri, you open yourself up to being picked up and held in jail until an arraignment on the charges and a bond is set and you post the bond.

Missouri Statute 565.160 provides absolute defenses to parental kidnapping. The statute states as follows:

Defenses to parental kidnapping and child abduction.

565.160. It shall be an absolute defense to the crimes of parental kidnapping and child abduction that:

(1) The person had custody of the child pursuant to a valid court order granting legal custody or visitation rights which existed at the time of the alleged violation, except that this defense is not available to persons charged with child abduction under subdivision (5) of subsection 1 of section 565.156;

(2) The person had physical custody of the child pursuant to a court order granting legal custody or visitation rights and failed to return the child as a result of circumstances beyond his or her control, and the person notified or made a reasonable attempt to notify the other parent or legal custodian of the child of such circumstances within twenty-four hours after the visitation period had expired and returned the child as soon as possible; or

(3) The person was fleeing an incident or pattern of domestic violence.

 

Given the circumstances in your case, you may wish to contact your husband's legal guardian to discuss whether you can make an agreement with your husband regarding your move, as well as a potential parenting time agreement. If you come to an agreement, then it can be entered as a Stipulation and Order with the Court. If you can't agree, then you have to make the decision as to whether to file a Petition for Custody and to Leave the State, or leave without a court order.


I cannot tell you to violate the law. All I can give you is information. What you choose to do is your decision. Again, it is possible that you may be extradited if you leave without a Court Order of Custody and to Leave the State. However, the police agency will have to decide whether it can expend the resources (men/women and money) to extradite you.

 

I hope you find this information useful.

 

 

 

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions.

Thank you for your business!

Xavierjd

Many customers have asked how they can specifically direct a question to me in the future. If you specifically want me to assist you in your legal matter, just put "xavierjd” in the subject line and I will gladly pick up the question as soon as I am on-line.

***Answers given are for informational purposes only and are not meant to replace the advice or assistance of an attorney licensed to practice law in your state. If you need any more information, please do not hesitate to ask. Thank you!

 

xavierjd, Lawyer
Category: Family Law
Satisfied Customers: 3400
Experience: 20 yrs exp. in divorce, custody, visitation & support .
xavierjd and 4 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.

He was never arrested or convicted, but he was caught with child porn on his computer, after the accident and before, before I and several people caught him, he refused counseling, I threatened to turn him in, he burned his computer hard drive. the incident after it was covered up by his guardian. Even though he is my husband, she will not give me any information. I am trying to get an affidavit from the man (a minister) who found it (the child porn) and deleted it, would that be enough to keep them from extraditing?

Customer: replied 1 year ago.

He was never arrested or convicted, but he was caught with child porn on his computer, after the accident and before, before I and several people caught him, he refused counseling, I threatened to turn him in, he burned his computer hard drive. the incident after it was covered up by his guardian. Even though he is my husband, she will not give me any information. I am trying to get an affidavit from the man (a minister) who found it (the child porn) and deleted it, would that be enough to keep them from extraditing? Plus, there is a good school for children with disabilities there, my son is only allowed to o to school for 1 1/2 hours a month here, I have to home school him the rest of the time. He is learning nothing about social skills, or personal interaction with his peers this way. I want a better life for my children, and they have much better opportunities in Oklahoma. Do I have ANY legal standing? The fact that my husband is mentally unstable?

Customer: replied 1 year ago.

I haven't gotten a reply to the last post/question...I really need to know what legal standing I have as per his child porn addiction & mental instability?

Expert:  xavierjd replied 1 year ago.

Hi!

Thank you so much for the "excellent service" rating! It is greatly appreciated and I am glad that you found the information useful.

If you have future questions, you can specifically request me by name as the expert.

Thanks again,

xavierjd

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