Will my husband return my children?

There’s nothing worse in a contested custody case between the time when the parents separate or otherwise break up and when custody is determined by the judge (or agreed upon by the parties).

It’s a legal gray area. Technically, as parents of the child, both of you have the legal right to do whatever you’d like with your children – move, travel, whatever. That’s not a very good feeling if your child’s father is unpredictable or threatening, and if you believe that he might be likely to take drastic, unforeseeable action.

So, who has rights to the children? Well, you both do. But that can create all sorts of problems. It probably doesn’t take long for your brain to jump straight to, “Well, then, I’ll just hold on to them myself until the judge renders a decision or we reach an agreement,” but that might open you up to a whole lot of trouble, too.

There may be some time between when you file for divorce or custody and visitation (depending on whether yours is a divorce case, or whether you and your child’s father weren’t married), and when a determination – whether temporary or permanent – is made. One of the worst things you can do for your case is to keep your children from their father, especially if the judge finds that you did so unreasonably.

Remember, in Virginia, custody decisions are made based off of the best interests of the child factors, and the judges really look at these carefully in making any determinations. If you haven’t read them, you should. I’ll copy them here, but I want you to pay particular attention to factor number 6:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;

9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination.

So, yeah, while physically you can keep your children from their father, that’s not to say that it won’t have an adverse impact on the ultimate direction of your case.

He could keep the children from you, too – but you don’t want to show the court that this is a knock down, drag out came of tug o’ war. And, obviously, you don’t want to show him by your behavior that he needs to stoop to that level, too. It’s not good for anyone – for you, for him, and especially not for the kids – but it’s also going to drive up the costs of your custody case and make it into something of a three ring circus. Fun, when it’s under a multicolored tent, but not so fun when it’s your life playing out on stage.

What if he takes the kids on his own and won’t let me see them?

If he takes the kids, you can file a petition for emergency custody. Courts are strict about emergency custody petitions, but you may very well be able to get in on this basis. It’s a good idea to talk to an attorney who is familiar with the rules in your locality to see whether this tactic is likely to be successful.

Mostly, its difficult (if not impossible) to really run away with the children. Women ask me about this all the time, but I think that’s more because it’s a really primal fear, but not so much because it’s an actual risk. It happens, but its extremely rare.

Probably the best thing you can do is try to set up something you can both live with for the interim period. If you’re worried about letting him take the kids with him, have him sign something that says when he’ll return with them. Don’t let them go, if you smell drugs or alcohol on his breath or detect it from his behavior. Document, document, document.

It’s a good idea to talk to an attorney. Obviously, you’re walking a fine line here – you don’t want to set a precedent that shared custody is perfect because that’s what you’ve been doing, but you don’t want to be so restrictive that you look like you’re not going to support the development of the relationship with the child’s other parent.

It’s a tricky situation to be in, for sure, but working with an attorney and coming up with a comprehensive plan will both reduce or eliminate those fears (and they’re natural, by the way) that come up in a situation like this, and will help you ensure that you’re setting yourself up, whether through negotiation or litigation.

For more information, consider requesting a free copy of our custody book for Virginia moms (LINK), or attending our comprehensive custody seminar for Virginia women (especially important if you’re hoping to represent yourself) (LINK). Want more help? Give our office a call at 757-425-5200 to set up an in person, confidential consultation with one of our Virginia experienced divorce and custody attorneys.

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