We get a lot of questions about what your child’s other parent can and can’t do as the situation moves towards a separation. I get it – it’s scary, it’s emotionally charged, and it can get ugly, really, really fast. There’s really nothing that pulls on our heartstrings quite as quickly and aggressively and viscerally as our children. We can’t help it. It’s biological.
But what do you do? You can’t stay where you are anymore, and your child’s father says he won’t let you leave with the children. Can he keep you from leaving? What happens next?
Can he tell me I can’t take the kids with me when I go?
Well, yes – of course he can. He can tell you whatever he wants. He can tell you the sky is orange with yellow and green polka dots, if he wants.
I think your question is actually different – not CAN he tell me that, but is he right to insist that you can’t take the children with you? The answer is a bit more complicated.
Technically, unless and until there’s a custody ORDER in place, you can do anything that does not violate that order. If you’ve never been to court or reached an agreement about custody and visitation, you don’t have an order in place. Either one of you has as much right as the other to have the children in your care and custody, so, technically, either of you could move out with the children.
That doesn’t mean, though, that I think it’s fine if you keep the kids to yourself, don’t share your address with your child’s father, and refuse to allow him to see them. I think that’s probably a really terrible idea, especially if he’s truly volatile. The last thing you want is for him to make a nasty scene in front of the children, or to show up at their daycare or other normally scheduled location and take them himself, doing the same thing to you.
You don’t want a nasty tug o’ war with your children in the middle. You don’t want to worry that every time you drop them off somewhere that your child’s father will pick them up and take them away from you. You don’t want him to file emergency petitions for custody and then tell the judge that you’ve taken his children to a location, not given him any details, and not allowed him to see his children. All of those things would be bad for you, bad for your future custody case, and, most importantly, bad for the children to witness and experience.
So, what can I do if he says I can’t leave?
It depends on the situation. If there’s domestic violence and the situation is so bad that you can’t continue living there, you might consider applying for a protective order. You can get a temporary one for 3 days, but then you’ll have to litigate in court and prove that you qualify for a permanent protective order. Permanent protective orders last up to two years, and the children can be included on it, if the violence extends to the children.
In that way, you could either be allowed to stay in the home – forcing your child’s father out – or, alternatively, move out yourself with the children without repercussions. You’ll have to prove that he’s been violent, though, and, in order to include the children, you’ll also need to show that his violence extends to the children. Talk to an attorney if you have questions about your case and whether you’d likely qualify for a protective order. Though you can represent yourself in court if you like, protective orders are notoriously tricky. Some courts – like Virginia Beach – offer assistance for women seeking protective orders, so ask questions in your local clerk’s office if you’re not sure how to get this help. Otherwise, consider hiring an attorney to help you!
If there’s NOT domestic violence… It’s probably a good time to either file for custody and visitation or else begin negotiating a custody and visitation agreement. That way, you can at least begin to move towards a final resolution, where you both have some time with the children, and then you’ll be able to move out. It should also help lessen the tensions in the sense that your child’s father won’t be so worried – now that he has specified visitation – that you’ll up and leave him without access to his children. (And, likewise, it also lessens that fear for you!)
What if he withholds my children in violation of our custody order?
After you have a custody order or agreement in place, either one of you withholding the children in violation of that order is a punishable offense. It’s also technically parental kidnapping – so it’s criminal, too. At that point, you could get law enforcement involved (not that you’d want to; talk about damage to the children!). It would also be pretty damning evidence if your case went back to court on a change in circumstances. The custody order must be followed and, from this point on, whatever you do, you need to make sure that you can follow that order – unless and until it’s formally modified.
How do you modify a custody order?
Custody, visitation, and child support are always modifiable based on a material change in circumstances. So, if you’ve had a material change in circumstances, you can petition the court again to re-hear custody. Custody is based on the best interests of the child (LINK) factors, so the theory there is that what is in a child’s best interest is something that is evolving over time (just like the child is growing and evolving).
So, custody, once decided, isn’t exactly permanent. It can be changed over and over again until the child turns 18.
Can I leave without the children?
Sure. You’re a big girl. You can do whatever you want. But should you? Not if you want custody later!
You know that, right? If you leave the children behind, you’re telling the court that you think they’re okay in dad’s care. If you leave the children behind, you’ll have a hard time making the argument that he’s unsafe or volatile. Obviously, you trusted the children to his care!
If you’re really worried about safety – theirs or yours – a protective order is the way to go. Leaving them behind if you do have concerns about safety is a really, really bad idea.
I’m not saying that if you do leave them behind he’s virtually guaranteed to get primary physical custody, but I am saying that if you leave them behind, he’s almost certainly going to get at least SOME time with the children. I think this would be a very, very risky move and my advice to you would be that you should NEVER leave the children behind if you hope to win custody.
For more information, or to schedule an appointment with one of our licensed and experienced Virginia custody attorneys, give my office a call at 757-425-5200.