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

Asked over 1 year ago - 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.

Additional information

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.

Attorney answers (4)

  1. 4

    Lawyers agree

    Answered . 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.

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  2. 4

    Lawyers agree

    Answered . 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.

  3. 4

    Lawyers agree

    Answered . 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... more
  4. 1

    Lawyer agrees

    Answered . 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.

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