Family Law

Family Law Questions? Ask a Family Lawyer Online.

Ask a Lawyer,
Get an Answer ASAP!

Family Law
This answer was rated:

what can be done when a spouse moves out of state and decides

to not bring the kids...
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?
Show More
Show Less
Ask Your Own Family Law Question
Answered in 2 minutes by:
7/28/2013
Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12,620
Experience: Attorney experienced in all aspects of family law
Verified

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.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12,620
Experience: Attorney experienced in all aspects of family law
Verified
Brandon M. and 87 other Family Law Specialists are ready to help you
Ask your own question now
Ask Brandon M. Your Own Question
Brandon M.
Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12,620
12,620 Satisfied Customers
Experience: Attorney experienced in all aspects of family law

Brandon M. is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it.

LeeMichigan

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

< Previous | Next >

Meet the Experts:

Ely

Ely

Counselor at Law

11,844 satisfied customers

Private practice with focus on family, criminal, PI, consumer protection, and business consultation.

LawTalk

LawTalk

Attorney and Counselor at Law

9,025 satisfied customers

30 years legal experience. I remain current in Family Law through regular continuing education.

Dimitry K., Esq.

Dimitry K., Esq.

Attorney

7,856 satisfied customers

I provide family and divorce law advice to my clients in my firm.

Tina

Tina

Lawyer

6,562 satisfied customers

JD, 17 years legal experience including family law

P. Simmons

P. Simmons

Lawyer

3,360 satisfied customers

16 yrs. of experience including family law.

Barrister

Barrister

Lawyer

3,346 satisfied customers

Attorney with 17 years experience

RobertJDFL

RobertJDFL

Lawyer

2,754 satisfied customers

Experienced in multiple areas of the law.

< Previous | Next >

Related Family Law Questions
What are my rights since my wife left me and took all the
What are my rights since my wife left me and took all the money … read more
RobertJDFL
RobertJDFL
Lawyer
Juris Doctorate
2,754 satisfied customers
Im in California...have sole legal and physical custody of
Hello.....im in California...have sole legal and physical custody of child...father just got out of prison ..did a 5 year term ...immediatly wants ,visitation...what are his rights ..… read more
LegalKnowledge
LegalKnowledge
Juris Doctor
27,495 satisfied customers
I want to know if I can file a FL form 12.960 before final
I want to know if I can file a FL form 12.960 before final judgement based on verbal orders not being followed by spouse. … read more
Roger
Roger
Litigation Attorney
Doctoral Degree
26,807 satisfied customers
A 61 year old Asian women a month ago got kick out of her
A 61 year old Asian women a month ago got kick out of her husband home ... been married for 14 years ... she has no job ... does she have to wait 180 days to get a divorce? She is in Montana … read more
Gerald, Esq
Gerald, Esq
Juris Doctor
3,039 satisfied customers
A little complicated but I will do my best to explain. My
Hello, a little complicated but I will do my best to explain. … read more
Ray
Ray
Lawyer
Doctoral Degree
30,244 satisfied customers
I'm filling out a Petition for Allocation of Parental
I'm filling out a Petition for Allocation of Parental Responsibilities. I'm trying to accurately answer the question on the form: The best interests of the child would be served by allocating parental… read more
Sue
Sue
Juris Doctorate
192 satisfied customers
My ex and I divorced 3 years ago. I was ordered to pay $371
My ex and I divorced 3 years ago. I was ordered to pay $371 per week in alimony to her for 10 years, unless one of us dies, she re-marries, or is co-habitating. She has been living with her boyfriend … read more
Roger
Roger
Litigation Attorney
Doctoral Degree
26,807 satisfied customers
I will need to sue to get back an engagement ring from my ex
I will need to sue to get back an engagement ring from my ex fiancé the ring value is under the 6000 limit. Can my Attonery appear in my absence for me in small claims. She is from Ohio and I live in … read more
INFOLAWYER
INFOLAWYER
Partner
Doctoral Degree
55,474 satisfied customers
A worker at my child's daycare center has a founded CPS case
A worker at my child's daycare center has a founded CPS case against her due to an action at the daycare center. Can she still work in child care? Licensing says no. The local department of social ser… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
In 2007 I was only 22 years old. I was manipulated into
Hi,In 2007 I was only 22 years old. I was manipulated into signing a Power of Attorney that essentially signed away my rights to make sizable financial decisions for myself. Now I am in my thirties an… read more
Barrister
Barrister
Lawyer
Doctoral Degree
3,346 satisfied customers
Thanks for taking my question. I'm in Cali. My divorce is
Thanks for taking my question. I'm in Cali. My divorce is ongoing. I'm paying temporary support. The kids are out of the house. Usual story. One of us worked (me) and the other only kind of did (she's… read more
Legal Expert Justin
Legal Expert Justin
Law Degree
200 satisfied customers
Can CPS remove your kids for neglect if you admitted drug
Can CPS remove your kids for neglect if you admitted drug use to a cop even if the drug use didn't occur around your children and you did not care for your children while you were under the influence… read more
Roger
Roger
Litigation Attorney
Doctoral Degree
26,807 satisfied customers
Can I add my child to my wife's medical Insurance without my
Can I add my child to my wife's medical Insurance without my ex girlfriends permission? She says her concern is she doesn't want anyone outside of his parents to have access to his SSN and medical rec… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
5,959 satisfied customers
I just messaged on my phone but i needed to switch to my
i just messaged on my phone but i needed to switch to my computer. I have divorce questions about spousal support for someone who would be married 3 years in april. My husband was having an affair. I … read more
Olivia Kent
Olivia Kent
Managing Partner
Doctoral Degree
1,451 satisfied customers
My niece brought a lawyer to the bed of my stepfather in the
My niece brought a lawyer to the bed of my stepfather in the nursing home and have him signed power of attorney and quit claim deed to transfer the title to her father in Taiwan. The trust deed was in… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
Follow up query to previous question...please make private.
follow up query to previous question...please make private. My relatives who are helping my aunt don't want to retain lawyer to represent her at guardianship hearing. They are trying to get thy state … read more
Legal Expert Justin
Legal Expert Justin
Law Degree
200 satisfied customers
Can a 16 year old boy get served a law suit in New York for
Can a 16 year old boy get served a law suit in New York for his father he hadn't spoken to in years and divorced from his mom… read more
LawGuy
LawGuy
Juris Doctor
123 satisfied customers
I have been detector father to my now ex-fiancee's son since
I have been detector father to my now ex-fiancee's son since his biological father committed suicide over 5 years ago. He is now 7 about to turn 8. After we ended our engagement (almost 2 years ago) s… read more
Barrister
Barrister
Lawyer
Doctoral Degree
3,346 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x