“I don’t trust my ex to send my child back at the end of the summer."
This is a common fear amongst divorced parents. If the non-primary parent is not trustworthy, there are several things you can do to ease this fear. First, re-read your divorce decree or custody agreement. Refresh your knowledge about the specific terms of summer possession including notice provisions, dates of possession, surrender and delivery. Confirm in writing or by e-mail with the other parent the dates of the summer visitation and the surrender and delivery terms. If the child is flying, ask for the round-trip ticket and confirm where the child will be.
If your ex is stable with a home, job and perhaps a new family, he/she will not easily disappear from the radar screen. That is a fact. If you can locate the other parent, the hard part of having to recover your child through legal process is done. Remember, in today’s electronic world, it is truly difficult to disappear. If the other parent lives in your state, the job is easier. If not, it is just a little more cumbersome, but can still be accomplished.
As soon as your ex communicates his/her intention not to return the child or fails to return the child when visitation is over, contact an experienced family lawyer immediately. Furnish the lawyer a copy of the divorce decree/visitation order and any communications between you and the other parent.
The law has several available remedies for you. These remedies are hard to defend against and will allow you to recover the costs and attorneys’ fees from your ex.
You may file an application for writ of habeas corpus commanding the ex to appear with the child before the judge with continuing jurisdiction of the custody matter. The writ is easily granted. The ex must show up with the child and show cause why he/she has possession of the child. It possession is outside the visitation period, the court will order the child returned to you and give you your attorney’s fees. If the parent lives out of state, file the application where the ex lives using a local attorney. You will still get the writ plus your attorney’s fees and expenses.
You may also, along with the application for writ of habeas corpus, file a petition for enforcement separate from the writ asking the court to hold the miscreant parent in contempt of court, jailing him/her for violating the court’s order, placing him/her on probation contingent upon no more violations of the court’s order, requiring the other parent to post a cash bond, and paying your attorney’s fees and costs. If the other parent lives out of state, then you may seek to file an application for enforcement under the UCCJEA in the state where the other parent lives. Don’t worry about what the letters mean, just remember “UCCJEA".
The state in which you reside may also have statutes which allow create civil and criminal liability for interference with a possessory interest in a child. Texas, for example, has both a civil provision and a penal statute. These statutes apply not only to a parent but a person who aids or abets another in violation of a right to possession of a child.
If you fear the other parent will flee the country with the child, immediately contact an experienced family lawyer when the fear arises. There are means available through the United States Department of State to try to prevent the abduction as well as criminal penalties under federal law. There is also an international treaty called the Hague Convention on International Aspects of Child Abduction which may apply if the child is taken to a country which is a signatory to the treaty. The list of member nations is available on the internet. Be advised, that Russia and most all Moslem countries are NOT signatories to this treaty.
Most importantly, don’t dispair if the other parent wrongfully retains possession of your child. Take action, get the child back, and teach the other parent a lesson about the law. Courts take a dim view of parents ignoring lawful custody orders. The remedies exist for the protection of your child and your rights.
Lawsuit / Dispute Attorney