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AlexiaEsq., Managing Attorney
Category: Family Law
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Experience:  19+ Years of Legal Practice in Family law matters.
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My 2-year old daughter was taking out of the state of Delaware

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My 2-year old daughter was taking out of the state of Delaware to Neveda by her father who is currenlty in the Air Force Reserve. I had gave permission for her father's aunt to keep her for the weekend. During her stay she was suppose to spend time with her father who came from Neveda to visit her. However instead of my daughter being returned to me she was taking out of the state without my consent. The next day i filed a petition for custody and was given a preliminary injuction order but she was already gone. I also filed an Ex Parte but was denied because of insufficient evidence of immediate risk of harm to my daughter. Although he was paying child support, there was not custody order in place. Since then he won't let me talk to my daughter and i can't go see her due to me being 39 weeks pregnant with our second child. What are my rights? Can i get her back now or do i have to wait until we go to court.

Dear keaton,


It sounds like your Ex Parte was an Emergent Motion for Custody, but denied to lack of that immediate risk you refer to. This is the problem we are in danger of when we don't have an official custody order in place, delineating the parental custody rights, when 2 parents split. You don't mention what 'preliminary injunction order' you did successfully obtain? Was it to deny him the right to take her out of state? If you haven't already done so, you absolutely have to file a Motion for Custody (since your Emergent Motion for temp custody was denied) in your state, since that should still retain jurisdiction over your daughter since NV has not had her for 6 months. Of course you can not leave in your condition, I fully understand, having had 2 babies in the last few years (I hope you are otherwise feeling OK, this was terribly cruel of him). In any event, try to get some evidence of the understanding that your husband used deception, involving family members, and your good faith attempt to keep everyone in the loop with open visitation, to get her away from you. Also, use all the other reasonings as to why you should be the parent with residential custody - a you facilitate open visitation and relationship building with the father, while he has denied you even the opportunity to speak with her....if you have extended family in DE that is tight with your daughter, that is also an important consideration in custody, particularly if the dad has no one out in NV and will need stranger child care when he goes on his reserve weekends, etc. Do some research on which schools are better, showing that your upcoming pre-school and kindergarten, plus, are better than those in NV, if that is the case (if it is not, perhaps don't use that as a point)....


This custody hearing will be crucial. The fact that she has been with you in DE for 2+ years will be somewhat important, in terms of status quo, which courts generally prefer, but given her tender years, it may not be as strong as it would be if she were, say 10.


Hope this helps to clarify. And let me know if you need some follow up. I know this must be a terrible time for you.

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