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Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12237
Experience:  Attorney experienced in all aspects of family law
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what can be done when a spouse moves out of state and decides

Resolved Question:

what can be done when a spouse moves out of state and decides to not bring the kids back to the parent that they reside with?
Submitted: 1 year ago.
Category: Family Law
Expert:  Brandon M. replied 1 year ago.

Brandon M. :

Hello there.

Brandon M. :

Thank you for your question. The answer can depend on several factors. To start, how old are the kids?

Customer:

11 turning 12 on 8/8/13 they are twins

Brandon M. :

How long ago were the children taken out of state?

Customer:

they went to visit with mother for the summer. she picked them up may 31. was suppossed to meet tomorrow to return the girls. she called tonight and said she wasnt bringing them back.

Brandon M. :

In which state are the children located?

Customer:

presently located in tennessee. but live in louisiana.

Brandon M. :

Is there a custody order currently in effect?

Customer:

yes. 50/50 custody. it was done while we both lived in this state. she moved after the custody papers were done.

Brandon M. :

Parents sometimes make agreements between themselves that are outside the letter of the court's order. Under the court's order, are the children suppose to be returned to you tomorrow? In other words, if the mother fails to return the children to you tomorrow as scheduled, would that be a violation of the court's custody order?

Customer:

we both agreed that they would return tomorrow because school will be starting in a week.

Customer:

they are enrolled in school here in mandeville, louisiana and have been for the last 3-4 years.

Brandon M. :

It would clearly violate your agreement if the kids were not returned tomorrow, but would it violate the court's order?

Customer:

no domicle was put on paperwork. yet 2 years ago she moved and left them to live with me. so im confused if it is against the courts orders or not.

Brandon M. :

That's ok, I understand that these things can be confusing.

Customer:

was also a flight risk added to the papers that she couldnt move the girl more than a 150 miles away withouit my consent and she agreed to it.

Brandon M. :

I have good news and bad news. I should start by saying that because the nuances of every situation are different, this information should not be construed as complete or advice without consulting in person with counsel. That said, the bad news is that when one parent refuses to return a child to the other parent, immediate action can only be taken if the parent is in actual and certain violation of the court's custody order. If the order is ambiguous, no immediate action can be taken. If, for example, the order says that the father shall have custody from August 1 through October 1 of each year, the mother's refusal to return the children to the father on August 1 could be enforced. However, if a custody order (for example) merely states that the parents shall share custody 50/50 with no specific dates for an exchange, no immediate action can typically be taken due to the ambiguity. The willful, knowing violation of a court's custody order is a criminal offense called "contempt of court"--it is punishable by a fine and/or jail time. However, there cannot be reasonable doubt that the parent willfully and knowingly violated the order, so ambiguity in the language of the order usually makes it unenforceable. That's the bad news. Please allow me a moment to explain why there is good news as well...

Brandon M. :

The good news is that the court is more than happy to clear up custody order ambiguities, and to do so quickly. The situation arises rather frequently because most people want to obey the court's order and the parents, for the good of the children, can settle any problems that may arise like two adults. However, you do occasionally have a parent who simply does not care to play nice, and the court will gladly get involved at that point. 11 year old children need stability, so it rarely makes sense to allow 11 year old children to be removed from their primary residence, their friends, their school, their community, and the primary parent simply because the other parent has decided to move away. Furthermore, such a move will obviously have a tremendous impact on a child, and the courts don't appreciate it when a parent acts unilaterally and in defiance of the other parent's wishes. In other words, it's one thing when a parent goes to the court and asks for an order specifically allowing the kids' primary residence to be changed out of state, but it is another thing entirely when a parent just does it without asking permission and over the objection of the other parent. It's offensive to the court...

Brandon M. :

Such a unilateral move, especially one that threatens to disrupt the kids' school arrangements, will typically present an immediate and significant threat of irreparable injury to the child. In those instances, the parent wanting the kids returned has two options...

Brandon M. :

The first option is to just file for a modification of the existing custody order that specifically orders the return of the children. As mentioned, an offensive unilateral move tends to suggest that a parent acting so erratically does not have the kids' best interests in mind, and that tends to suggest that their custodial rights should be reduced. The down side of such a filing is that it will usually take several weeks or more to get into court...

Brandon M. :

The second option is to file an application for an ex parte (pronounced "ex-par-tay") temporary custody order. This is basically saying to the court that there is an emergency situation, and the court needs to shoot first and ask questions later. An application for an ex parte temporary custody order can be filed at the same time as a regular modification request. The court can order the kids back immediately on a temporary basis, and make a long-term order after both sides have the opportunity to be heard...

Brandon M. :

Forms for an ex parte temporary custody order and for a modification to the existing custody order can be obtained from the family court. Forms can be court-specific, so the requesting party would need to get them from their specific court house. Once there is a clear, unambiguous order, any subsequent failure of a parent to comply would expose them to criminal prosecution for contempt of court.

Brandon M. :

Naturally, if the existing order is unambiguous and if the parent is in clear violation of the order, then a complaint for contempt of court could be filed immediately. However, that would need to be determined by an attorney who could see the order in person. That said, if it's unclear to the parent, it's probably going to be ambiguous to the attorney as well.

Customer:

thats what i thought but this being drop on me at 11 at night and a weekend has my nerves fried and sick.

Brandon M. :

I should also point out that even if the order would be violated, it wouldn't be contempt until the deadline actually passed. If a parent says that they won't return the child next week according to the court's order, it isn't a violation of the court's order until next week comes and the parent hasn't returned the child.

Brandon M. :

That's a normal reaction, and I would just encourage you to keep in mind that the law and the courts do not favor this sort of chaos. The system is designed to protect the best interests of the children, so have faith in the law's priorities but be prepared to jump through the hoops.

Brandon M. :

You clearly didn't ask for this situation, but this is the hand that you have been dealt, so you have to do the best that you can under the circumstances.

Brandon M. :

I realize that this was a lot of information. Has all of this made sense?

Customer:

should i attempt to try and get them with all my papers or is that not going to work? I also have a text of when we spoke agreeing of when to pick them up. does that matter?

Customer:

it has made sense and i thank you greatly

Brandon M. :

Nothing would prevent from parent from filing for contempt based on their existing order alone if it can be shown that the other parent is willfully and knowingly violating that order beyond a reasonable doubt, but I would worry about any case where it isn't clear that the order has been violated. It could just be a waste of time. Unfortunately, this is probably where the limitations of answering questions online gets in the way of giving a perfect answer since I can't see the order. But if you're not sure that she has violated the order beyond a reasonable doubt, there's usually a good chance that anyone else would also be unsure. If there is ambiguity, then there would ordinarily have to be a new order (such as the ex parte order previously discussed).

Text messages can show an informal agreement, and can clearly demonstrate to the court that the parent violating the informal agreement can't be trusted and will act contrary to the best interests of the child. That can be used to get a favorable custody order. However, a text message agreement by itself cannot be enforced. Only a court's order can be enforced.

Customer:

ok i thank you and will have to start jumping through hoops.

Brandon M. :

Just take a deep breath--you'll see the kids again soon. Ok?

Customer:

ok thank you once again.

Brandon M. :

It was my pleasure. Take care.

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