Parents can get very territorial about their children in a divorce case, even after the divorce is final. Some can be so acrimonious that one parent doesn’t want the other to have any access to the children at all. In some cases, a parent may simply decide that he or she is best equipped to take care of the children. In any of these scenarios, there’s the potential for a parent to take extreme action: Moving with the children out of the region in which both parents live separately, sometimes even out of the state or out of the country.
So, on the occasions when this does happen, what recourse does the parent left behind have? It depends on how far away the children have been taken and whether the divorce has finalized or not-and a family lawyer with a firm dealing with these cases, as the Law Office of Lisa Vance is, can tell you what your options are.
The courts are generally very clear about ruling in the best interest of the children when it comes to divorce. Unless there’s some compelling reason that a parent shouldn’t see a child, such as abuse, the courts will typically rule that children have time with each parent, and the divorce decree will include the details of the parenting schedule.
Because of this, decrees are written with parenting time in mind, based on where parents live. In a previous article, we covered how it typically works if parents live more than 100 miles apart. If parents live in closer proximity to each other, there may be language in the decree stating what counties they can live in while the children are under age 18, to help preserve the continuity of their parenting time.
(For Bexar County divorces, it might include countries contiguous to Bexar County, or even up the I-35 corridor to Austin, but it would be designed so one parent couldn’t just up and move to Dallas or Houston on a whim.)
If a parent moves a child out of state, and a divorce decree is in effect, not complying with the parenting schedule within that decree will constitute a violation of a court order. That would most likely need to be enforced in the state where the court order exists.
If the divorce is still in process, it may be a little more complicated since no court order officially exists. In a number of these cases, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)-adopted in all states but Massachusetts-may be utilized to help get both states on the same page over which court has jurisdiction.
These cases require coordination with law enforcement and lawyers in the two states involved, and typically require a telephonic hearing and orders filed in both states to ultimately determine which state’s courts will move forward in resolving the case. These are not always easy cases to resolve.
If children are taken to another country, even a neighboring country like Canada or Mexico, guidelines in the Hague Convention on the Civil Aspects of International Child Abduction can be utilized by the lawyer for the parent remaining in the United States. As with interstate cases, these will involve law enforcement and lawyer interactions in each country in order to try to reconcile the situation.
The visitation time lost in such a scenario is most likely irreparably gone. However, the parent who lost parenting time can petition the court for makeup possession time – whether that request is granted depends on the judge that hears the case and how compelling he or she finds the arguments of the parties. The judge can consider the mitigating circumstances involved. Consulting with an experienced family lawyer is the best way to determine your best options.