For most moms where a custody case is at stake, one of the biggest, most suffocating fears they have is the possibility that their child’s father will take the child and not return him. Whether he takes the child and runs or whether he just refuses to return him to mom, it doesn’t matter; the fear is real, and it’s crippling.
How do I prevent him from taking the child and running?
Really, the only way to prevent him from taking the child and running is by getting some kind of custody order or agreement in place. Until then, there’s no such thing as parental kidnapping—because there’s nothing that says when each parent is “allowed” to have time with the child. Without a custody order or agreement, the court (and the police) assume that either parent is entitled to spend time with the child.
Think about it. For many families, mom and dad stay married—or stay together, even if they aren’t married. They don’t have a custody order or agreement in place, because they share the children without thinking about it. Mom drops them off at daycare, dad picks them up. Whatever their arrangement is, it’s mutually agreed upon, and the parents continue to stick to it. When they do things on the weekends, they often do things as a family. When they travel, even if they don’t do so all together, they do so both with full knowledge. In that type of case, there’s no agreement necessary, and either parent can take the child along at will. There aren’t any issues, either way.
It’s really only after mom and dad split up that issues sometimes arise. (Of course, issues don’t always arise; there are plenty of parents who are no longer together who negotiate custody and visitation without needing courts or lawyers to intervene.) In those types of cases, custody is usually either decided upon by the parents and agreed to in writing, or, alternatively, the parties go to court and let the judge decide how custody and visitation should be handled.
If you get a custody order or agreement in place, both of you will only be allowed to take the child according to the agreement. If you keep the child longer than you’re allowed, deny the other parent visitation, or do something that the agreement specifically doesn’t allow, there could be legal repercussions. Taking the child—especially if he takes the child out of state, out of the country, or in order to keep the child away from you—could result in him losing custody entirely, or possibly being charged with parental kidnapping.
Of course, a custody order or agreement is restrictive on you, too, but it’s a major form of protection if what you’re most concerned about is that your child’s father might take the child and refuse to return him.
What do I need to do to get a custody and visitation order in place?
You can do it on your own, or you can hire an attorney to help you. You can pursue it either through the court process, or by negotiating an agreement between you and your child’s father. What course of action you take here probably depends most on how likely you think it is that your child’s father will agree with you with respect to custody and visitation. It’s probably most advantageous, in most cases, to negotiate an agreement—because that would be the cheapest, easiest, quickest way to accomplish your goals. Still, it’s not always possible to negotiate an agreement, especially if you’re already worried that your child’s father is the type that will take the child and run. If that’s his personality, he may not be willing to come to the table to negotiate at all, and you may be forced to go to court to get custody and visitation handled officially.
That’s fine, too, though, so I don’t want you to worry. Most people are very nervous about anything that means they might have to go to court, but juvenile court really isn’t all that scary. In fact, as far as courts go, juvenile court is relatively user friendly. This isn’t a criminal case, so the judge won’t be mean to you unless you’ve done something in front of them that makes them feel you deserve it (just as a head’s up—probably not the time to roll your eyes, suck your teeth, or make exaggerated hand gestures when your child’s father speaks).
Basically, what will happen is that you’ll petition the court for custody and visitation (and support, if support hasn’t already been determined in your case). Your petitions will be served on your child’s father, and a return date will be specified. He’ll have the opportunity to file any cross petitions against you, so it’s likely that he will also file for custody, visitation, and child support. (That’s normal, and nothing to be alarmed about.)
On your return date, you’ll have what’s called an initial appearance. This isn’t the whole trial; it’s just your first time in court, and the point at which the judge will appoint a guardian ad litem, if one is going to be appointed in your case, and sets an official trial date. A guardian ad litem is an attorney appointed to represent the best interests of the child to the court. The guardian ad litem (or GAL, as we frequently call them) will make a recommendation to the court based on his or her research into the case. Most of the time, the GAL will interview the child, perform home visits, and interview each parent to make a recommendation. Judges like and respect GALs, and their recommendations often carry a lot of weight.
Your real trial will be on the date determined at your initial appearance. That’s where you’ll bring in your evidence, witnesses, and exhibits, designed to convince the judge that custody should be awarded your way. In my experience, judges tend towards shared custody in contested cases. For more information on shared custody, click here.
After this hearing, you’ll have custody and visitation determined. The only catch? If you or your husband doesn’t like it, you have 10 days to note an appeal to the circuit court. The circuit court will re-hear your case de novo (meaning, just like it’s a brand new case) and issue a ruling, if the case is appealed. That doesn’t always happen, though, so no need to stress yet about a possible appeal; focus now on just getting custody and visitation established formally.
What if he has already taken the child and run?
If your child’s father has taken your child, it might be time to file an emergency petition. If he has tried to move away with the child, it’s likely that you can ask the judge to issue an order requiring him to return the child to the Commonwealth. At that point, you’ll also file custody and visitation petitions, so that you can get an order in place as quickly as possible.
What shouldn’t you do? Wait. The longer you wait, the more likely it will be that your child’s father will be allowed to stay. If he has taken the child somewhere else and refuses to return him, you should file petitions immediately. Don’t wait!
For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at (757) 425-5200.