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What if he took our son and is refusing to bring him back?

July 1, 2018

When going through a divorce, one of the most emotionally trying things can be unauthorized takings of children. Emotions can run high in divorce, leaving some partners to use their children as leverage. The worst situations occur when your estranged husband takes your son and refuses to bring him back. Maybe it happens in a dramatic way, like him putting the boy in the car and ripping out of the driveway. Maybe it’s subtle, like him refusing the bring your son back after a baseball game. What are your options when this happens? While there’s nothing easy about this, the good news is that you have some legal options.

Your legal options will largely depend upon the legal status between you and the father. There are many potential outcomes depending on whether the two of you are still legally married, whether there has been a court order and whether one party has sole custody.

You’re still married and there is no court order
If you’re still married and he takes your son with him, then you have no immediate legal rights. As the son’s parent, your husband has the right to custody over the child. However, there is a legal preference for keeping children with their mother, especially if the child is young. Beyond that, you can use this move as evidence that the father is unfit to parent the child.

When you get into a custody battle during the course of divorce, the court will often look to see what is in the best interest of the child. The goal will be to ensure that the child is placed in the best possible situation. Evidence that your husband absconded with the child as a power play during a messy breakup is good evidence that your child is not well off with the father. As you speak to an attorney about your options, you’ll likely learn that though you may have trouble getting the child back immediately, this can help you retain custody in the long run.

When you’re divorced or separated and there’s a court order
Most cases where men take their child and leave will involve a court order of some kind. Perhaps you have been granted full custody for some reason related to your divorce. Perhaps the court has placed the child in your custody during the course of your legal separation. In some cases, you may have a joint custody agreement where the father gets to spend a few days every month with the child. If there is a court order, then the father is likely in violation of it when he decides to make this power move.

When this happens, your lawyer can help you file an action against the father for violating a court order. He can be hauled into court to answer for this. Depending on the action, it may constitute a crime. At the very least, you can ask a court to compel the father to return the child.

Gaining a temporary restraining order or protective order
If your husband or ex-husband does something that puts you or your child in danger, the good news is that you may be able to use that action to bring about a temporary restraining order or even a temporary protective order. In these instances, a father who is showing erratic or abusive behavior will often find himself bumping up against the law. Courts favor issuing these protective orders because they don’t want to take a chance that the father will do something crazy and harm the child.

While you will need to give the father an opportunity to fight a more permanent protective order, you can generally get a short-term protective order without the requirement of due process. To do so, you will need to show that danger or harm exists. Your divorce lawyer can help walk you through the steps. Assuming the father has taken the child and put that child in danger, you may be able to compel the court to help you in these circumstances.

Once you have a protective order in place, it becomes much easier to get your child back and keep the father from taking him again. Violating a protective order is a crime, so the father can be arrested.In many of these orders, he will be commanded to stay a certain distance away from you, your children, your home and even your place of work. If you notice him encroaching on that particular zone, then you have the right to call the police and have him arrested. Violating a protective order is also good evidence that can be used when going through a divorce proceeding or fighting a tough custody battle down the road.

What is parental kidnapping?
It is possible for a parent to be charged with parental kidnapping. In order for this crime to have taken place, there needs to be a showing that the father had no legal right to custody of the child. Assuming you have gone through the proper procedures and the father has no custody, you should be able to fairly easily raise a charge of parental kidnapping against the father if he refuses at any point to return the child.

If you’re facing serious custody issues of this kind, it’s important to enlist a good attorney. These issues are serious, and your child may be in danger. In most situations, you can get relief from a court. It just requires an intentional approach and the help of a good lawyer to make it happen.

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