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Ely, Counselor at Law
Category: Legal
Satisfied Customers: 102184
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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my separated husband took our girls (9 & 10) somewhere sine

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my separated husband took our girls (9 & 10) somewhere sine Sunday morning. Sunday & Monday are his days. The problem here is that I don't know where my girls are. Even as of now, Tuesday, he did not answer my call. Yesterday, I texted him and called his sister-in-law. He texted me back saying that they are at beaches wit him and kids are fine. I taxed him back saying that he has to be back by yesterday and today girls should be in boys & girls club until I pick them up (normally late afternoon). He taxed me back saying they should be at boys & girls club this morning. As of now, I still could not ge t hold of him and they are not at boys & girls club . Should I call cops? He took our kids away w/o each others permission and invaded my day camping somewhere I don't know. Obviously his family know where they are. this is not acceptable taking our kids away where their mother could not even locate them. Please advice
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation.

Should I call cops?

You can, if you believe that he intends to continue keeping them away. Under Cal. Penal Code §278.5(a), what he is doing is unlawful:

Every person who takes, entices away, keeps, withholds,
or conceals a child and maliciously deprives a lawful custodian of a
right to custody, or a person of a right to visitation, shall be
punished by imprisonment in a county jail not exceeding one year, a
fine not exceeding one thousand dollars ($1,000), or both that fine
and imprisonment, or by imprisonment pursuant to subdivision (h) of
Section 1170 for 16 months, or two or three years, a fine not
exceeding ten thousand dollars ($10,000), or both that fine and
(b) Nothing contained in this section limits the court's contempt
(c) A custody order obtained after the taking, enticing away,
keeping, withholding, or concealing of a child does not constitute a
defense to a crime charged under this section.

Whether the police see a one-day late of return as actionable is up to them, of course.

In addition, you have civil remedy in one of two ways:

Writ of Habeas Corpus - normally used for prisoners, this is also used by parents to ask the Court to have someone who has your children return the children to them.

Show Cause for Contempt - see here. A contempt motion would hold the parent in contempt for not following orders. Ca. Civ. Pro. § 1218 et seq. Punishment may range from admonishment to civil fines, community hours, and/or imprisonment.

Threatening any/all three, or, actually going through with one of them may be a way to resolve the issue.

I hope this helps and clarifies. Good luck.

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Customer: replied 3 years ago.

Could you explain me easier way? Right now, he has a legal custody of our two children. Still what he is doing is unlawful not to let me contact our kids?


Could you explain me easier way?

Apologies, sure. Let me ask this - when is/was he supposed to give the children back to you per the custody order?
Customer: replied 3 years ago.

by this morning. There is no custody order but our mutual agreement. Tuesday is my day. Normally he drop them to school/child care early in the morning . That what I have been doing.

Thank you.

My apologies. I thought that the two of you had a custody agreement in place through the court. If there is no custody agreement, then both parents have rights to the children naturally, and are expected to share them amicably. Of course, this does not always work out - as is evident here. The problem is that the parent is also free to keep the child away from the other parent. So as much as you can not let him have custody, he can do the same. The oral agreement is not enforceable, I am afraid.

So if he has your children, if you feel that he means to flee jurisdiction, then one can call the police. If not, one may be better off going to court and setting down a standard custody order to avoid this happening again.

The Court decides on custody based on the rule of thumb of "best interest of the child." This includes, but is not limited to, general stability of the parent, financial stability, indoctrination of the child in the current school and environment, household condition and living condition of the child, other persons living in the house, etc. The courts generally do not like to split the custody 50/50 since this is hard on the child unless both parents agree and as for this.

One parent usually becomes the custodian and the other parent becomes the "visiting" parent which is generally one day a week, every other weekend, and alternating holidays. The nuanced points of the custody can either be decided by the parties or the Court, if the parties cannot come to an agreement.

Even if a parent does not get managing custody, they are almost guaranteed visitation unless they have a drug problem, alcohol dependency, or an unsafe home environment. Abuse and or neglect of the child or previous children are an almost automatic bar for even visitation, although supervised visitation may be granted by the Court.

Of course, that is the standard order of possession. That order can be modified if both parties agree or if the Court finds that it is an extraordinary situation.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

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