How to Enforce Child Custody and Visitation
My Ex Won't Return My Child!
Child custody and visitation can be one of the hardest aspects of parenting. One attorney, our tenth, told my ex-husband and me, "Your case is one of the most complex I've ever dealt with. It's more involved than the murder case I'm working in Ft. Riley."
I believed him. Our custody battle had begun nearly eight years earlier. Courts and police agencies from five different states had been involved at one point or another. I'd compiled thousands of pages of court orders, interrogatories, IRS audits, transcripts of recorded conversations, and more.
The case involved my husband's daughter, but it affected my children, too, who often stood by helplessly waving at their stepsister, who wasn't allowed to walk out the door to talk to them, or who had to stand guard at school and report if my husband's first wife was in the parking lot to try kidnapping her daughter back.
They contrasted what they saw her go through to their own experiences with their dad and me: a cooperation on matters affecting them. (There wasn't much cooperation, to tell the truth, but they didn't see what really happened - which was me surrendering many important aspects of their childhood in order to prevent them from being traumatized.)
Unfortunately, my oldest girl's perceptions of "go along to get along" resulted in her losing her son briefly when his dad refused to return him from visitation...for the second time! (Learn about what she should have done to prevent him from doing this in the first place at "Child Custody When You Were Not Married.")
I was able to share with her important things I'd learned so that she did get him back in a matter of days, and now I'll share them with others who might find themselves in the same kind of tragic situation.
Difference Between Civil and Criminal Law Explained
It's a Civil Matter
When it comes to enforcing custody and visitation, police agencies nearly always say, "Sorry, that's a civil matter," even though the behavior of the difficult parent is distinctly uncivil! What they're really saying is that the civil courts, not the criminal justice system, is the method for handling family matters because they do not see a crime as having taken place.
Even if you have full custody and the court order to prove it, they will not interfere in most circumstances, especially if the court order came from another state. It can be darned near impossible to convince them to assist you even when your ex is in violation of a court order, because this would be classified as "contempt of court," which only a judge can punish.
When your ex has your children, there are just a few ways to get your child back:
- Take the child yourself. This can put you in the hot seat. Be certain you aren't violating any laws or court orders if you don't want this method to backfire on you! This is NOT a method I would recommend except in very rare circumstances. It can have unexpected consequences for you and your child - consequences that may affect many years of your lives.
- Convince your ex to turn over your child. If you can persuade your ex that his or her behavior is harmful to your children and not in their best interests, you may be able to avoid costly litigation, but you will need to take appropriate legal action to ensure it doesn't happen again.
- Your child may "run away" and return to you. Runaways are typically considered "status offenders," meaning they're doing something that would not be illegal if they were an adult. This is not given very high priority unless your child is considered missing or endangered. Let the police know where your child is, but do not let your child out of the house if the police or your ex want to talk to them until you have sound legal advice.
- You can get the civil court to authorize police involvement. While this is the most expensive option, it's the one with teeth. Court orders are essentially laws that are enforceable. When you have valid court orders, you have a durable set of boundaries that you and your ex are supposed to stay within, and by making sure they're followed, you and your children will be safer from one visit to the next.
I'll be discussing how to bridge the gap between the civil courts and the law enforcement agencies you'll want to have on your side.
Is Parental Alienation Happening to You?
Although parental kidnappings may not involve parental alienation, they often go hand-in-hand. This video shows how traumatic visitation can become for a child who is expected to hate one of their parents and refuse visitation. In this video, it may appear that the mother is "supporting" her daughter because the teen says her father doesn't care about her feelings and "always do(es) this" to her, but it's very possible that the girl will face emotional abuse and withdrawal of her mother's affections if the girl does not behave in a way that alienates her father.
Parental alienation syndrome is inherently abusive, but very hard to discern because the targeted parent may be seen as demanding and unreasonable by the violating parent, who has coached the child to dislike and avoid the targeted parent.
Parental Alienation Harms Children and Targeted Parents
Understand the Legal System
State laws govern what rights and duties both the custodial and non-custodial parent have. Even if you were never married, the law will consider one parent as a primary custodian in most states. However, in some states, like Texas, neither parent is granted custodial status unless there is a court order specifying which parent has this particular status.
This happened to be where my grandson was held by his father, who said he would not be returning the pre-schooler home to my daughter. They'd never married, so they never divorced, and no custody agreements had been drafted.
"You'll need to get a habeus corpus and a writ of attachment if you want the sheriff's department to help," said the deputy I spoke with. "We don't recognize orders from out-of-state."
Although she used phrases that sound like mumbo jumbo to most of us, the process proved to be largely the same as it is elsewhere. Before I describe it, though, let me encourage you to become familiar with the Uniform Child Custody Jurisdiction and Enforcement Act, because it will almost certainly form the foundation of your court case. (As of this writing, every state and territory of the United States have adopted the UCCJEA except Massachusetts and Puerto Rico.)
If you understand the UCCJEA, you'll be miles ahead of the battle when it comes to getting your child returned to you.
You should also become familiar with Parental Alienation Syndrome (PAS) and determine if this may be present and affecting your child. PAS happens when one parent targets the other parent as if they're undesirable and unworthy to be in the child's life, poisoning the child against that parent and potentially developing into a sense of inferiority in the child who now believes he or she is the product of someone who's defective.
In-Depth Help for Targeted Parents
Further Reading on Parental Alienation Syndrome (PAS)
- Putting an End to PAS (Parental Alienation Syndrome) - Divorce, Second Marriages & Stepparenting
Divorce often brings out the worst in two people that at one time may have felt deep feelings of love for one another. It's only human nature to want to find some outlet for those feelings of loss, disappointment, regret, or even failure that general
- PAS Help - Parental Alienation Syndrome (PAS): Its Causes, Cures, Costs, and Controversies - Parenti
- PAS Help - Parents Who Have Successfully Fought Parental Alienation Syndrome - by Jayne A. Major, Ph
Save your children in difficult PAS cases.
Have You Known Someone Affected by a Parental Kidnapping?
Have you known someone whose ex did not kidnap the child, but did not return the child from visitation?
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
The UCCJEA was designed to cut down on parental kidnapping and "forum shopping," a term that means a parent moves to a state where they can obtain a favorable custody change by filing for a new case.
Under the UCCJEA, the courts must examine which state has jurisdiction over the child. Even if you live in the same state as your ex, you should become familiar with this law because many parents go to extreme measures when it comes to their children!
One woman in Arizona thought she couldn't file for custody after her ex snatched their son from a bus stop and removed him to another state. She did not know where her child was, so she assumed she couldn't file a lawsuit. Her ex kept his location in Oregon a secret for many months, then filed for custody. When he did, she discovered that because of the UCCJEA, she not only was able to file for custody in Arizona, she was able to prevent the Oregon courts from accepting the custody case at all.
This is one of several examples discussed in the Office of Juvenile Detention and Delinquency bulletin's review of the UCCJEA. This is the best overall guide I've found for the average person to get a great overview of the law.
Reading the bulletin will help you understand:
- How and why the law was developed to prevent parental kidnappings.
- What a court considers when deciding whether it has jurisdiction.
- What happens when two states are involved, and both parties want to use the court in the state where they're located.
- What grounds are allowed for contesting a jurisdiction decision.
- What is necessary for police agencies to act on court orders.
- Additional laws, agencies, and further reading related to custody, visitation, and law enforcement.
Attorney David A. Blumberg specializes in interstate custody cases. His website offers a thorough flow chart series that will help you apply the UCCJEA's principles to your specific circumstances.
How to Get Your Child Back Right Now
First, let me advise you that "right now" probably won't happen without a lot of stress and drama, if it happens at all. But you can definitely take steps right now toward resolving these matters.
1. Can you get a restraining order?
If you believe your child (or you) is in danger, contact an attorney and file for an order of protection. In Texas, the sheriff's deputy said my daughter would have to file a "habeus corpus." Basically, this just means "body of evidence." No matter what state you are in, the courts will have a procedure to hold an emergency hearing to determine if you or your child needs protection. If you do, the judge will issue an order of protection, also known as a restraining order. If you are granted a restraining order, your attorney should specifically include language that specifies that the police have the authority to pick up and return your child to you.
To seek a restraining order, you'll need to document that a risk exists. Locate and report any previous incidents of physical or emotional abuse, illegal drug use or excessive drinking, or psychologically disturbed or risky behaviors that you want the judge to consider. You should bring any photos, doctor's reports, or other documents that support your claims, like old e-mails or text messages that discuss any of these things.
2. Do you have proof of custody?
If no custody orders exist, you will need to seek a temporary order of custody. The court will consider what is in the best interests of your child. A good overview of the specific things they look at is included in the guide I mentioned earlier, but here's a brief recap:
- Where the child has lived the longest.
- Where the child has the most friends, family, or social networks like school.
- Whether either parent has a criminal history or is concealing the child.
- Whether the child is in danger.
- Which environment is healthier for the child emotionally and physically.
If you already have custody orders, you'll want to look up parental interference laws for the state where your ex resides or is holding your child. In most states, a parent who willingly violates custody orders may be found guilty of a felony. However, it can be hard to enforce this until you register your custody orders.
3. Have you registered your judgments?
Once you have legal judgments like custody orders and/or protection orders, they will normally have to be on file with the county where you want enforcement. If your ex lives in a different county or state, you will have to call that county's clerk of the court or county recorder to inquire about how to register your orders. In some cases, it's as simple as providing a copy and paying a small fee, while in others the process can take longer because it gives the parties involved a chance to contest the order.
Once the county has accepted and recorded a legal court order, it becomes a local order. The county's police agencies are then able to enforce it. If you do not complete this step, you can expect to be turned away when you seek help.
About Remaining Calm When You're Not Calm at All
As an example, when a deputy showed up to take my stepdaughter and turn her over to the girl's mother, I knew that the court order authorizing him to do so was obtained illegally. I was calm when I informed him that I would not allow the young lady to step outside the house, but agreed that he could speak to her through the door. He told me, "Ma'am, we're not fixin' to have a problem here."
I replied, "Yes, sir, we are, because that's not a valid court order." Again, understanding the law helped, because I went on to explain, "I know you don't know the details, but we weren't served notice of any hearing, and therefore, our constitutional rights have been violated if she is taken from here. I assure you that I will take action to the fullest extent of the law if this child is removed from us illegally." He called the judge, who checked whether we had been served with a notice of the hearing. After finding that we had not been, the judge ordered the deputy to leave my stepdaughter until the case was heard again with proper notice to all parties.
If I had been over-emotional or offensive, I might have ended up in jail instead, and my stepdaughter would have been six states away by the time I got out.
Befriend the Legal Community - And Other Important Tips
Hopefully your situation will resolve quickly and never crop up again. My experience and my daughter's has shown me that too often, the problem parent will find every possible loophole and excuse to make life hard on you and your child.
Here are tips I learned to make things easier (not that they are ever easy!)
1. Keep thorough records. Three ring binders are absolutely necessary for this process. I used one for court orders; one for e-mail records, police reports, and notes I made about conversations; and one for receipts and financial data that affected our case. Eventually, all three of my three-inch thick binders were full, all starting with a single episode of my step-daughter's mother deciding she didn't want her daughter to visit for the full five weeks she'd planned to spend one summer.
2. Know the laws that apply to your case. The UCCJEA applies to virtually every custody case. Parental interference with custody laws may also apply. Understanding the registration process thoroughly will help you guide police officials who may not be up-to-date on the processes (in my experience, few of them were!)
3. Always remain calm, polite, and rational when dealing with the police agencies or courts. There are multiple reasons for this. You want their reports to reflect that they see you as a rational, reasonable person, and if they empathize with you it's likely to come across in their reports, which you may want to use at future hearings. You do not want them to feel like you're telling them how to do their jobs or trying to dictate to them, so offer understanding about the limitations they're working with and show a cooperative attitude in all your interactions with them, even if you must disagree with them.
4. Build your own case. Don't expect your attorney to provide your evidence for you.
5. When hiring an attorney, look for one that is very experienced in family matters and comfortable going to trial. Many attorneys dislike trials, and can drag your case on and charge a lot of money doing it, when a more expensive, aggressive one can save you thousands.
6. Never violate state laws or court orders yourself.
7. Do not make statements you can't prove. Just because you think the court will award you custody because your ex drinks too much, it's an empty threat until a judge signs on the dotted line. Empty threats and mistaken assumptions about what the law says can make you look foolish and hurt your case.
8. Pay your attorney in a timely manner. You may need his or her help again.
About Getting Your Child Back
I'm sorry you're going through something like this. I can relate too well to the kind of intense stress it puts on everyone in your family. Looking back, I wonder if we did the right thing when we fought against the parental alienation syndrome that led to so many years and dollars spent in courtrooms around the country.
In our case, my stepdaughter lived with her mother, but we were awarded custody because of how extensively she was emotionally abused when she did not reject her dad. As she became a teenager, however, the young lady in question became convinced that she would lose her mother's love entirely if she didn't comply with what the mother wanted. Then the mother added an incentive of a free car as long as the young woman would agree to date boys. Crazy, yes, but also effective - my stepdaughter complied with her mother's plan to disappear to another state when she was sixteen.
Today, she has a good relationship with her father. I don't know if she would have one at all if he hadn't fought so hard to keep her in his life. On the other hand, I also see her low confidence and poor self-esteem and I understand exactly how it came about it. She now has children of her own and may be alienating her oldest child from his own father, but I am not in touch with her enough to know for certain. I certainly hope that's not the case, but PAS does tend to repeat in later generations.
There aren't any easy solutions, but I wish you the very best in getting your child back and helping him or her have happy, harmonious relationships with both of the people who are most important in your child's life.