When it comes to breakups and divorce, one of the biggest challenges for parents is dealing with child custody and visitation. In an ideal world, parents would get along well and they would work together to arrange a child custody schedule that benefits everyone, especially the kids. While that does happen to the fortunate ones, there is a segment of the population that has fears over child custody and what the other parent would do if the children were in their care.
We do have clients who are worried that if their ex had the children, given the opportunity they would flee the county, state, or even the country. This is especially the case when their spouses are from a foreign country and they have family there. Since Canada and Mexico are so close, it’s common for our clients in LA County to be afraid the other parent will flee with their children to one of those countries, but it can be any country really.
Are You Afraid of Your Ex Fleeing?
Are you afraid that your ex will flee LA with your children? Maybe you’re not afraid of them fleeing to Canada or Mexico, but maybe you’re afraid they’ll take your kids and they’ll just disappear for a while, if not permanently. Maybe your ex has the financial resources to do this, or maybe their parents do, or maybe they have the connections to vanish without a trace. If you have these fears, you’re certainly not the first and our legal team has encountered this before.
Here are some common questions and answers in this scenario:
What if I have sole physical custody?
If you have sole physical custody, the other parent cannot legally take your child away from you or run away with your child. If the other parent takes your child without your express consent, it could be a crime, which is known as “parental kidnapping.”
What if we are still legally married?
If you are still married and you are not legally separated or divorced and there are no temporary child custody orders in place, then it is legal for your husband or wife to take your child.
What if we have joint physical custody?
If you are divorced or paternity was established and you have joint legal custody, it’s more complicated. Our advice is to read your current custody order very carefully and see if it’s legal for the other parent to take your son or daughter.
What if we have joint legal custody?
Joint legal and physical custody are two different things. Legal custody refers to decision-making power while physical custody refers to who has the child and when. If you have sole physical custody, it’s illegal for the other parent to take your son or daughter away from you.
What if the other parent has parenting time (visitation)?
If you are the custodial parent and the other parent has visitation, he or she is required to bring your child back to you or they must let you pick your child up when the court order says you’re supposed to. If the other parent does not bring your child back or if they refuse to let you come get your child, even if you have joint physical custody, they are in violation of the custody order. In this case, it’s possible for them to be found guilty of a crime, such as “parental kidnapping.”
Do You Have Sole Physical Custody?
As we mentioned above, if you have sole physical custody, the other parent cannot legally take your child away from you. You have sole physical custody if:
- You are an unmarried mother and paternity was never legally established.
- You are an unmarried mother and paternity was established, but a court never issued a child custody order.
- You are an unmarried mother or father and you have a court order that says you have sole physical custody of your child.
- You are married or divorced and you have a court order that awards sole physical custody to you.
- You have a domestic violence restraining order in force against the other parent and it awards you sole physical custody.
“What do I do if the other parent kidnaps my child? What legal recourse do I have?” It is illegal for the other parent to take your child away from you or keep your child away from you when they are supposed to return your child. They have NO legal right to do this unless they have sole physical custody of your child, which we assume they don’t.
Your ex has no right to keep your child from you if you have been awarded sole physical custody. If the other parent is awarded visitation, they must return the child when the court order says they’re supposed to. Even if they have joint physical custody, they’re still supposed to return your child to you when the court order says they have to. Also, your ex has no right to take your child or keep your child from you without your permission outside what’s written in the court order and signed off by a judge.
If your ex takes your child or keeps them when they are not supposed to, you should:
- Call the police
- Contact a family law attorney
- Contact the National Center for Missing and Exploited Children
- File criminal charges against the other parent
- Have your attorney file a complaint in the family court
- If your child was taken abroad, contact the U.S. State Department
If you’re worried about your ex fleeing with your child, please contact our firm at once for legal advice. We’re here to help!