Skip to main content

What steps does a custodial parent need to take to have children quickly returned to custodial parent, NY?

Staten Island, NY |

NY Father, non-custodial parent, has alternate weekend visitation with children, ages 8 and 4, from Fri 5:30 pm to Sun at 7 pm. Father picked up children Fri at 5:30 from custodial parent, Mother, and now sends email that he has taken children to Delaware and is keeping the children until the following Sat. Father refuses to provide address where children are located. There was NO AGREEMENT for Father to have extended visitation, which is stated would have to be agreed upon in Divorce Settlement Agreement. Mother has primary physical custody, and there is joint legal custody between parties.

There is a divorce decree. In the past the non-custodial parent, the father, has twice lost overnight visitation and there was an order of protection put in place due to father's inability to comply with court documents and divorce agreement. Parties met for the first time with a Parenting Coordinator earlier this week, who confirmed father had weekend visitation only. There were many opportunities for parties to work cooperatively as per agreement. Father refused to do so, and decided for himself after picking up children that he would be keeping them the whole week. Children left home anticipating being home tonight. Father refuses to give address where children are as he is aware he is in violation of agreement once again.

+ Read More

Attorney answers 4

Posted

Focusing on your use of the word "quickly", I am not sure that is possible. Your statement about "primary physical custody" implies there is a court order from a Family Court or divorce decree that prescribes a visitation schedule which you claim "NY Father" is violating by unilaterally extending visitation without your permission (would you have given it if he had asked?).

You could call the police, claiming "kidnapping" and "interstate" transportation of kids, etc. But since there is a family relationship and some parental rights, and you don't know where "NY Father" and the kids are (Delaware is a small state, but still, it's a needle in a haystack to find someone there), I can see the police not exactly considering this "Amber Alert" material and declining to get involved.

You could file a petition for violation of a Custody/Visitation Order in Family Court by Order to Show Cause, but the father has to be served and a hearing scheduled, and I'd expect that won't happen by next Saturday, let alone September or October. Then you can hash out the violation in court and maybe the "NY Father" can have his visitation supervised or be found to be in violation or something.

But I suspect that the Court is going to find that this one week extension is not so egregious and disruptive during summer vacation as it would be during the school year. Does "NY Father's" parenting schedule provide for some normally extended visitation during the summer like most custodial orders? Is there some good reason not to do do?

Your parenting schedule and interparent communications sound like they could use some work: like it or not, NY Father is a parent and should have REASONABLE access to his kids and the parents should work it out like adults in the best interests of their kids, most kids wanting relationships with both parents. Many NY Family courts offer free mediation. You and NY Father might benefit from this.

This answer is provided under the Avvo.com “Terms and Conditions of Use” (“ToU”), particularly ¶9 which states that any information provided is not intended as legal advice or to create an attorney-client relationship between you and me or any other attorney. Such information is intended for general informational purposes only and should be used only as a starting point for addressing your legal issues. In particular, my answers and those of others are not a substitute for an in-person or telephone consultation with an attorney licensed to practice in your jurisdiction about your specific legal issue, and you should not rely solely upon Legal Information you obtain from this website or other resources which may be linked to an answer for informational purposes. You understand that questions and answers or other postings to the Site are not confidential and are not subject to attorney-client privilege. The full Avvo ToU are set forth at http://www.avvo.com/support/terms . In addition, while similar legal principles often apply in many states, I am only licensed to practice in the State of New York and Federal Courts. Any general information I provide about non-New York laws should be checked with an attorney licensed to practice in your State. Lastly, New York State Court rules (22 NYCRR Part 1200, Rule 7.1) also require me to inform you that my answers and attorney profile posted on the Avvo.com site may be considered "attorney advertising" and that "prior results do not guarantee a similar outcome".

Asker

Posted

There is a divorce decree. In the past the non-custodial parent, the father, has twice lost overnight visitation and there was an order of protection put in place due to father's inability to comply with court documents and divorce agreement. Parties met for the first time with a Parenting Coordinator earlier this week, who confirmed father had weekend visitation only. There were many opportunities for parties to work cooperatively as per agreement. Father refused to do so, and decided for himself after picking up children that he would be keeping them the whole week. Children left home anticipating being home tonight. Father refuses to give address where children are as he is aware he is in violation of agreement once again.

Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

Well, maybe as Mr. Lomtevas says you go to cops, but it's more to build up a record that NY Father is violating parenting schedule. Perhaps these multiple violations will result in a Court determining he is in violation again and holding him in contempt if he does it again with a jail sentence. It's a tough situation. Good luck to you.

Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

p.s. Asker: what does the Attorney for the Child think about this whole situation? What did he/she say in court the last time you tussled with NY Father about violations of parenting schedule?

Posted

Cops. You go to cops. On Monday when you are supposed to have them, you file a complaint for custodial interference along with a ciolation petition in family court.

Otherwise, there may be a custodial "freeze" taking place. This is a process where the NCP usurps custody by these little deorivations until they become bigger and bigger.

This is a by-product of child support. There is no way to eliminate support payments unless a flup takes place, and this week in DE sounds like the NCP is commencing the freeze.

Be sure you are represented and ensure that you act decisively or else you'll be paying support and enduring "visitation" and being humiliated in family court everytime you appear there.

Good luck.

Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

I'm not following you, Peter. Are you saying that if the CP doesn't make a big stink in Family Court over violations of the parenting schedule, she can lose custody and have to become the NCP? I'm not getting the connection between parenting schedule violations, custody and support you're suggesting.

Peter Christopher Lomtevas

Peter Christopher Lomtevas

Posted

The custodial freeze occurs when the CP takes no action against an NCP's violations of the parenting order. One variation can be the walk-away freeze where the NCP simply takes over as the CP. In others, the NCP can call cops and chase away the CP. An unscrupulous lawyer can advise the NCP to commence this conduct. The slow thinking CP, who is occupied with rearing the child(ren), doesn't notice at first. Over time, more and more time is lost as the children grow into the new environment. If the CP starts family court action, the NCP can come in and allege he is the actual CP and by then have the kid(s) convinced to remain with him. Hence the danger of inaction is this freeze. That's pretty ballsy to just take away the child(ren) to another state. There could be an alienation already taking place. Do you see what I mean?

Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

Yes, I guess I can see something like that playing out if the CP continually lets the goalposts be moved, but around here at least, they want to see some "changed circumstances" to justify changing custodial arrangements, not just bickering about violations of visitation arrangements....usually meaning a few years have gone by and the kids are bigger and want to live more with dad than mom or vice versa for some reason. I agree taking the kids to another state is ballsy and that the mother should be filing violation petitions in Family Court but it still seems a stretch that she could lose custody if she didn't do so. Like Mr. Weinmann said, the lawyers for the parties and the Attorney for the Children probably have a much better idea of what's going on here.

Peter Christopher Lomtevas

Peter Christopher Lomtevas

Posted

A freeze does not culminate in a decision by a court. It ends when the child(ren) are so turned against the CP that there is no choice but a flip to the NCP - usually consented to the CP.

Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

I defer to your much greater experience here, but in the few cases I've recently been involved with, I can see what you're saying ---except that the children are not being "turned against" the CP by the "disparagement" and "pressure" as it's usually perceived by the CP as some kind of nefarious plot, but because the children rightly feel that the CP/* is inflexible, treats them as chattel or property to be argued over, and is much more involved in the same old retaliatory "tit for tat" haggling with the NCP that ended the relationship (after all, most of these parent's "loved" each other at some point), and the kids just want a more normal relationship with both mom and dad. Kids, even little kids, aren't as dumb or without influence in the situation as they are assumed to be. Without casting aspersions on Asker's situation, I wonder why, even with the past claimed violations and bad blood, he can't have more than a weekend visitation during the summer....most parenting plans provide for at least a week's vacation during the summer, and this whole situation sadly sounds like a power play and gamesmanship by both parents or their lawyers than what is good for the kids. Violating pickup or dropoff times is not like being an ax murderer, especially if poor slob NCP "NY Father" is paying child support, which I suppose he is per the somewhat harsh (IMHO) and inflexible standards of the NY CSSA "percentage" formulas. */or the lawyers for the parents, who have to show "zealous advocacy" in a zero sum fashion to be seen to be doing "their jobs" in an adversarial justice system) that ended the relationship (after all, most of these parent's "loved" each other at some point)

Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

sorry for the sloppy editing...hey, Avvo, can we have a five minute edit window like Facebook or a preview of answers and comments????? And a "lawyers only" blog where we can discuss these kinds of issues with the site generally?

Peter Christopher Lomtevas

Peter Christopher Lomtevas

Posted

Part of the freeze is to not ask for a vacation period but rather to take it. This is a way to test out the CP for when the real sh*t hits the fan. I guess I would enjoy a lawyers-only section but there is so much here for the public to know about. Americans are in the dark over these tricks which arise out of child support. Here is a link to an article I commented on: http://www.huffingtonpost.com/social/lomtevas/childsupport-paying-your-_b_3756920_277835216.html

Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

Thanks for the cite; I'll read your article, looks interesting. There is a certainly a lot of gamesmanship in NYS support cases that doesn't benefit the children, that's for sure. When I first started getting into this area of the law, I read Professor Tippin's treatise on the Child Support Standards Act history and how it was being pushed in the '80s by the first and second wave feminists because the assumption was that, even though the laws were gender neutral, the typical situation 99% of the time was rich dad running off with younger trophy wife/secretary, etc. and leaving single, poverty stricken mom, so they didn't want the matrimonial bar and male judges to be able to wriggle out of "someone must pay" to support the child and tied the judge's hands to this strict "mother/custodial parent" biased formula to tilt the process towards that outcome and lessen the influence of the lawyers and the court, who (NYSBA Matrimonial Law Section) were uniformly against the proposal. Now fast forward 30 years and mom is possibly either not the custodial parent ("Mr. Mom" or "Kramer v. Kramer" is no longer a novel situation) and, more importantly, with higher female academic attainment, two income families, diversity and "lean forward" advocates like Sheryl Sandberg, often mom is the higher earner and NCP dad is basically impoverished by the CSSA "formula" while mom is getting a free ride with both non-taxable income and money she doesn't necessarily have to account for or actually spend on the kids. And dad doesn't even get a tax exemption, because that's supposedly baked into the CSSA formula.

Posted

The lawyer representing you in the divorce and subsequent visits to court is the best person to answer these questions as she is the one most familiar with both parties and the information/documentation that led up to the current state of affairs. I agree with what Mr. Lebowitz & Mr. Lomtevas have both said, but obviously we are looking at this from the outside and are not familiar with the inner workings of this matter. Good luck.

I may be guessing or not licensed in your state. No atty/client relationship exists. I earn my living collecting points for "helpful" answers.

Posted

The quickest mechanism for getting the children returned is a Writ. In this case, I doubt that it will help. He will bring them back before you can have it served on him. However, if you file the Writ as well as a violation petition, you are establishing a record of his violations with the court. Should such behavior continue, you may be able to get a restriction or suspension of his visits. The question is, is that in the children's best interest? The two of you should work on resolving these issues. The children should have some extended visitation with their father during the Summer.

Child custody topics

Recommended articles about Child custody

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer