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What are my legal rights for bringing my daughter to live…

Customer Question
What are my legal...

What are my legal rights for bringing my daughter to live with me. My husband and I separated a year ago but have not divorced. 5 days ago I received a text that he would be out of town for 30 days. I have discovered that he has admitted to drug rehab and left my daughter with a family (without my knowledge). I want to bring my daughter from Louisiana to Florida so she is with family. What are my legal rights to do so. I’ve heard that it may be considered abduction if done improperly.

Lawyer's Assistant: Because family law varies from place to place, can you tell me what state this is in?

Louisiana

Lawyer's Assistant: Has anything been filed or reported?

No, I don’t want it to be something tramedic for daughter.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

No I know it being in Louisiana makes it complicated

Submitted: 4 months ago.Category: Family Law
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Answered in 1 minute by:
1/4/2018
Family Lawyer: LegalGems, Lawyer replied 4 months ago
LegalGems
LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 12,962
Experience: Experienced Family Law Attorney
Verified

Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

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Family Lawyer: LegalGems, Lawyer replied 4 months ago

Hello; I am sorry to hear this; can you tell me if there are any court orders in place regarding child custody? And to clarify daughter and father live in Louisiana and mother lives in FL?

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Customer reply replied 4 months ago
There is no custody agreement. I had to move to Florida a year ago but my husband and I have not divorced. My daughter stayed with him in Louisiana.
Family Lawyer: LegalGems, Lawyer replied 4 months ago

Thank you;

if there is no valid court order re: custody or visitation then both parents are entitled to equal access to the child.

This right preempts third party rights.

However, under the UCCJEA, a federal child custody act that addresses jurisdiction, the court that has authority to determine child custody issues is the child's home state-where the child has resided for the past 6 months. So if the child is removed from their home state and the other parent files a custody petition, the out of state parent may be ordered to return the child to the state in order to adjudicate the issue.

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Family Lawyer: LegalGems, Lawyer replied 4 months ago

Many resources are here:

https://louisianalawhelp.org/issues/family-children/custody

A parent can petition the child's home state for an emergency custody order if the other parent is incapable of caring for the child, and simultaneously seek permission to remove the child to the parent's residence, to establish a legal precedence that this was in the child's best interests and to document the event, which may help in regards ***** ***** of permanent custody and visitation.

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Customer reply replied 4 months ago
But it is my legal right to bring her with me while he is in rehab? Even across state lines? I’m not trying to create a custody battle but she should be with her parent not a family I don’t know.
Family Lawyer: LegalGems, Lawyer replied 4 months ago

There is no statute that governs this; the courts have determined that during marriage, no party has a superior right to custody as both parents are equally entitled to custody absent a court order to the contrary.

That means neither party may take action that prevents another parent from exercising parenting time with the child; so if a parent wishes to remove the child from the home state, the prudent course of action is to file for court authorization; otherwise the other parent can allege that the action was done to deprive them of their right of access to the child.

Here is the simple kidnapping statute with relevant portion highlighted:

45. Simple kidnapping

A. Simple kidnapping is:

(1) The intentional and forcible seizing and carrying of any person from one place to another without his consent.

(2) The intentional taking, enticing or decoying away, for an unlawful purpose, of any child not his own and under the age of fourteen years, without the consent of its parent or the person charged with its custody.

(3) The intentional taking, enticing or decoying away, without the consent of the proper authority, of any person who has been lawfully committed to any institution for orphans, persons with mental illness, persons with intellectual disabilities, or other similar institution.

(4) The intentional taking, enticing or decoying away and removing from the state, by any parent of his or her child, from the custody of any person to whom custody has been awarded by any court of competent jurisdiction of any state, without the consent of the legal custodian, with intent to defeat the jurisdiction of the said court over the custody of the child.

(5) The taking, enticing or decoying away and removing from the state, by any person, other than the parent, of a child temporarily placed in his custody by any court of competent jurisdiction in the state, with intent to defeat the jurisdiction of said court over the custody of the child.

B. Whoever commits the crime of simple kidnapping shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than five years, or both.

So the court will look to see if there is a court order or if the move was designed to deprive the home state of its jurisdiction.

The following statute is similar:

45.1. Interference with the custody of a child

A. Interference with the custody of a child is the intentional taking, enticing, or decoying away of a minor child by a parent not having a right of custody, with intent to detain or conceal such child from a parent having a right of custody pursuant to a court order or from a person entrusted with the care of the child by a parent having custody pursuant to a court order.

It shall be an affirmative defense that the offender reasonably believed his actions were necessary to protect the welfare of the child.

B. Whoever commits the crime of interference with the custody of a child shall be fined not more than five hundred dollars or be imprisoned for not more than six months, or both. Costs of returning a child to the jurisdiction of the court shall be assessed against any defendant convicted of a violation of this Section, as court costs as provided by the Louisiana Code of Criminal Procedure.

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Family Lawyer: LegalGems, Lawyer replied 4 months ago

Hello again; just checking in to see how things worked out;

If you have no further questions a positive rating is most appreciated (at no additional cost to you) and allows the site to credit my account for the time spent assisting you!

if you have further questions please don't hesitate to reach out to me here on Just Answerand I will do my best to get you the requested information.
Thanks!

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