Can he tell me I can’t take the kids?

Posted on May 27, 2020 by Katie Carter

We’re seeing a LOT of custody disputes right now. I’ve talked about it a bit before, of course; there are very few things that we deal with that are as serious or as terrifying as a dad taking the children and threatening to not allow them to return.

We have several cases like this. It’s not a new thing by any stretch of the imagination, but the pandemic has definitely made holding these people accountable a little more difficult. In some ways, I understand. Everyone is scared. We’ve never experienced anything like this. And when we’re scared, we sometimes act irrationally, or do things that we wouldn’t otherwise do. When you combine it with the fact that people are furloughed, essential workers are bringing all sorts of risks home to their families and children (and the families of their exes, too, if they’re sharing custody in any form or fashion), it’s understandable that people are acting a little crazy.

Can he just do that? Can he just take the kids and refuse to return them?

So, this is normally a pretty uncomplicated issue. Either you have a court order, and you must follow that court order, or you don’t. if you don’t have a court order, either parent has complete, 100%, unfettered rights to take the children. If he has taken them, or is refusing to return them, and you don’t have a court order, it’s probably a good idea to file something with the court and get it in place – FAST. Especially if he has gone to another state, he may be trying to keep them there long enough to enroll them in school or to establish jurisdiction for custody and visitation disputes in that new state. In general, I feel that judges prefer their state over other states, and will avoid making major disruptive changes if at all possible – so that’s something you DO NOT want to happen. File for custody and visitation – and quickly – in your home state, or where the children have been living for the last six months.

If you have a court order, he can’t take the kids and violate that court order. Anything outside of what parenting time is allowed for him in that order is violating the order – which gives you ammunition for a show cause (and, eventually, if he’s terrible enough, for a potential change in custody entirely!) and allows law enforcement to intervene and enforce the court order.

With COVID-19 and the court closure during Virginia’s judicial emergency, though, these custody disputes are more complicated.
It’s probably safe to say that it’s a bad idea to take the kids and run, pandemic or no, court order or no. You can’t just do that, and the child’s other parent has rights.

Unilateral decisions are generally frowned upon. When parents have joint legal custody (which will be presumed if you don’t have a court order, and will likely be explicitly spelled out if you do), both parents have a vote and neither has ultimate tiebreaking authority (unless your order says otherwise). So, if he’s saying you’re an essential worker and you can’t care for the kids, he’s really not entitled to make that decision on his own.

In normal circumstances, the proper procedure would be to file something with the court, and let the judge decide. With a judicial emergency, though, that’s easier said than done. And I think that’s the reason why we have so many truly dramatic scenarios right now. There’s not really an opportunity for relief. And there’s not an opportunity for punishment – or, at least, not right this very moment. So, parents who are willing to manipulate the system and look for opportunities to exploit the child’s other parent are finding plenty of time and opportunity to do that.

That’s what’s so frustrating. Moms are saying things to me like, “He doesn’t really care about corona, he just wants to control me.” Or, “He’s using this pandemic to do exactly what he always wanted to do.” It’s terrible. It’s frustrating. And there’s not a lot I can do – without judicial intervention – to force him to comply if he’s determined to do his own thing.

If you’re totally at an impasse, court order or no, you’ll have to wait until the court opens back up to have a chance to air your grievances and let the judge’s ruling fall where it may.

Will judges be forgiving about things like this?

It’s so hard to say! I think a lot will depend on the reasonableness of the concerns, and the estimation of the actual risk. We’ve never experienced something quite like this before, so there’s no real precedent for these types of decisions.

Will the judge see the risk, and think dad was right? Maybe. If you’re an ER nurse, there’s already at least one case I’ve seen (from a court in Florida, I think) that took custody of the woman’s daughter on a temporary emergency basis because of the risk of coronavirus. Do I think that’s what’ll happen here? Honestly, I don’t know what to think! I haven’t heard of a case like that here.

But I do think that, even if something terrible happens, the judge will be inclined to grant makeup time. The judge will also look at reasonableness, and what other accommodations were made to allow the child’s other parent to participate. If dad took the kid and didn’t allow, for example, Skype or FaceTime calls, didn’t offer any alternatives, didn’t participate in any discussions, it will look worse than if he seemed to really try to keep you involved.

The coronavirus pandemic is a good example of a case where reasonable minds may differ – we’re all willing to take different levels of risk for different things, and this is really no different. I, for one, have always felt that I was willing to take the risk for my immediate family. My sister and her children live next door to me, and I never wanted to socially isolate from them. My sister though? She thought we needed to, so we did. Is she unreasonable? I had moments where I certainly thought so. But she’s also pregnant, and, well, like I said, reasonable minds may differ.

If you’re worried about the choices your child’s father is making, it’s a good idea to get your ducks in a row sooner rather than later. Talk to a Virginia custody attorney, and get a plan in place. The courts are taking some matters on an emergency basis, and, in some places, they’re even taking some non emergency petitions. I’m not saying that the flood gates will be open; social distancing will still be a thing, and the courts will be trying to minimize the number of people in the courtroom at any given time.
For more information, or to schedule an appointment, give our office a call at 757-425-5200.