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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 102506
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My son, Matt is married with children. He and s wife, April,

Customer Question

My son, Matt is married with children. He and his wife, April, have 3 boys, ages 2 and 7.
April's mom stayed with them for 2 months to help babysit the 2 year old. April is doing an unpaid internship to complete her degree, so they depend only on Matt's income.
I live 7 miles away and work from home with flexible hours. April and her mom plotted against Matt to take the 2 year old across the country to stay with April's mom for 2 months. They kept the plan from him, knowing he would object, until Friday morning. When April told Matt of the plan, they had a blow-out fight, and April would not relent. April's mom joined in the fight and they called the police on Matt as he was quite upset and there was no peace to be found in the matter. The police negotiated and April promised to have the 2 year old come home in 2 weeks. The police arrested Matt and April asked for a 72 hour NO-Contact order - which would last until Monday morning. Matt was released that day.
April's mom flew out with the 2 year old on Sunday, but they would not divulge the time to Matt. Matt tried to contact emergency family services and the police to find out if there was anything he could do to prevent his son from being kidnapped, without his consent, to a far-away place. They told him no. He would have to wait till Monday to file a petition to have his son returned to him.
So now it's Tuesday. April is trying to have her husband back home but threatens to divorce him if he files any petition. And is insistant that the 2 year old stay away for 2 months. Her excuse is that they can't afford a babysitter. But they can. I even set up a babysitting situation to cover all the hours needed. I would watch him half a day, then their babysitter they were using would watch him the other half of the day. They would only need to pay the sitter half a day, 3 days a week. I presented this to April on Friday evening. She said no, and threatened to call the police on me for harassing her.
Is there anything we can do to...
1. force that the child be returned home?
2. make it illegal for April or her mom to take the child away from home for longer than 24 hours without the father's consent?
Submitted: 1 year ago.
Category: Family Law
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note:This is general information and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this. Can you please tell me what state this is in?

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Customer: replied 1 year ago.
Expert:  Ely replied 1 year ago.

Thank you.

At this point, there are not court orders for custody. That means either parent has a "right" to the child. They have to share the child. This does not always work and this is why custody is filed for sometimes, often as part of a divorce, but not always.

There is no way to demand that she return the child without filing for formal custody. Once/if he does, he can request temporary orders while the suit is pending and ask for the child's return. And as part of this, he can also request a geographical restriction, asking that when she has the child, she or any of her agents (example: mom) would not take the child out of the city, county, state, etc.

However, I am afraid that until/unless he engages the Court, she has as much rights to the child as he does.

Let me know if you need a link to the petitions for custody in Wisconsin.

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Customer: replied 1 year ago.
how long will it take to get an order to have the child returned?
Expert:  Ely replied 1 year ago.

If he requests ex-parte emergency orders along with the petition and they are granted, then one the same day that the whole thing is filed.

If he requests temporary orders, then within days or a few weeks - as soon as the other party is served and can appear before the Court.

Finally months later, the final decision for final custody will be made at trial.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

Customer: replied 1 year ago.
what forms would you suggest he file (links are great, with a note to the specific form, please)? And does this means he has to be legally separated from her to get a custody order?
Customer: replied 1 year ago.
please can you give me the means of requesting ex-parte emergency orders?
Expert:  Ely replied 1 year ago.

See HERE for a list of the forms available.

However, I cannot say which exactly to file, because every situation is different - it all depends on what he wants to accomplish, etc. He is better off using an attorney, but even without one, he will have to go through and make the proper selections.

He does not have to be legally separated to get custody. While unusual, technically, it is possible to request formal custody while still marries and not separated.

Ex-parte means emergency orders. This is a motion filed when the whole thing is filed originally, asking the Court to put an emergency order in place even before the other party is served and has a chance to reply. The emergency order is then revisited and upheld/modified/voided once the other party is served and can appear in Court.

This is most common in custody situations when the other party is threatening to leave the jurisdiction.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

Customer: replied 1 year ago.
THANK YOU! ok, I found this:
INSTRUCTIONS FOR FILING EX PARTE MOTION... (I have inserted my comment inside brackets -->> { }. IT STATES:
An ex parte motion asks for a court order before the other party has an opportunity to be heard on your request. The need for an ex parte order might exist in circumstances when: you have a good faith belief that you or the child(ren)'s safety is in immediate danger, a parent threatens to flee the jurisdiction with the child(ren), {SHE DID MORE THAN THREATEN, SHE DID IT} to transfer marital assets, or to take actions which will cause immediate or irreparable injury to you, your child(ren) or your property. Time of Filing:-->> An ex parte motion may be filed together with the initial petition for {CUSTODY} divorce, petition for legal separation, parenting petition, or other petition. It may also be filed by either party in an action already pending or one which has been closed and is being brought forward. You can file this motion anytime during court hours. Your request will be acted on as soon as possible.Pasted fromQuestion - I have done alot of do-it-yourself legal filings. So in the document, at the top, do we call it "PETITION FOR CUSTODY" or "PARENTING PETITION", or does it matter?
Expert:  Ely replied 1 year ago.

It does not really matter. But it is best to call it "Petition for Custody."

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

Customer: replied 1 year ago.
OK THANKS. I have to admit, that I can't afford to pay you the full fee now. but if I give you a positive rating now, it will deduct the payment. I would like to postpone rating you for a week or 2 until I get paid again. Is that ok? I thought my son would help pay for this, but he says he can't afford it now, either.
Expert:  Ely replied 1 year ago.

The payment has already been deducted. It is in your JustAnswer account now. However, I am not credited until you rate me.