Posted for those whose clients may be facing interstate custody issues, but written to parents:
No matter what state you are in when you read this post, if your children have been taken without a court order, or to conceal the children from you, you must act quickly so you do not lose your bond with the children or lose your rights to custody and visitation.
If you wait longer than six months to object to the other parent's out-of-state move, you will probably have to go tell your story to an out-of-state judge!
Maybe you are in the Entertainment Industry working insane hours, or you travel for work, or are sick or depressed, in jail, kicking substance abuse…. Whatever the reason, just face it, access to your kids will be more difficult the longer you wait. Fix the problem now!
What do You do if Your Child is Kidnapped?
Let's face it, a misunderstanding over who has a three-day weekend, as irritating as that situation may be, does not get law enforcement excited.
On the other hand, when a parent unlawfully takes or conceals a child from a "lawful custodian," he or she has committed a crime. (CA Penal Code 278 - 280). Calling law enforcement in that situation is important, first so the child does not become too hard to find, and secondly because your relationship with a child who never sees you dies a little each hour.
As soon as you find out that the children have been taken to live out of the County or to another state to be hidden away, or are taken to live anywhere against court orders, you, as the left-behind parent, should:
- >> Enforce previous court orders by having the judge order the District Attorney, to have peace officers “find and serve” the taking parent, or, more effectively, “find and retrieve” the child, and bring the child back to California. -OR-
- >> Start a new Family Law case for custody and visitation orders in California, BUT at the same time, contact the agencies who help in kidnapping (abduction) cases.
In Los Angeles County, with the help of your custody attorney or on your own, contact the Child Abduction Unit of the Office of the District Attorney. Fill out the questionnaire available online, and then take the questionnaire to the DA at 320 W. Temple St, Room 780 (the criminal courts building downtown). The questionnaire and other information is found at http://da.co.la.ca.us/cau/.
In other communities, check the State Attorney General's Office for their kidnapping unit. In California: http://oag.ca.gov/ca-mexico/child-abduction. Or, out of California, check with the National Center for Missing or Exploited Children, http://www.missingkids.com/home .
SCARY: The local police or sheriff's department officers do not have as much experience with kidnapped children as do the specialty departments. It is common for a local police officer or sheriff to tell a worried parent, "If you know the child is in Florida, he is not kidnapped now is he?" The truth is, although no child should be abducted, when compared to car-jacking or petty theft, child abduction is rare. The cops just don’t know. The specialty units will help even if local law enforcement says ‘No.’
Home State Rule - Timing is Everything!
Even if it is decided that your child is not kidnapped, you still have rights if your child is taken to another state.
The federal custody scheme called Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is part of the laws of all 50 states. Decide which of the following scenarios fits your case and then act:
Previous custody orders:
- If a child is moved out of state against previous court orders, you, as the left-behind parent, have the right to seek the child's return, or at least, significant visitation rights, so as long you do not move out of the state where the order was issued.
Further, even if the other parent moved the kids legally, for as long as you live here, he or she will have to come to this state when either of you attempts to modify orders. You may not have a legal timing issue when you have a previous order, but, practically speaking, the less the kids see you the less they think about you - do not stall in correcting problems.
No Previous Orders — First 6 Months:
- The “Home State” of a child who is under no pre-existing court orders is the state where the child has lived during the last six months. (Exceptions for newborns and children who have moved multiple times within six months.)
This means that even after your spouse or the parent of your child moves away, during the next six months after the move, neither of you are allowed to file anywhere else but in this state!
Do Not Wait!
The excuses of leaving parents usually sound like, "I needed to go home to my parents because I couldn't afford to stay in California." "I was afraid for my safety or the safety of my children, so I protected them by leaving." "They are my children, I brought them into the world, there is nothing the other parent can do about it." "I couldn't find work in California."
None of those excuses works to allow the leaving parent to file for custody in the new state during the crucial first six months except, in some very narrow examples, e.g., if the parent was actually, provably, fleeing for his or her safety. Even then, the orders in the new state may be temporary. No matter how good the reason, the request for orders must be filed in California for the first six months.
No Previous Orders — AFTER six months:
- If nothing has been filed in California to stop the leaving parent, any old excuse will work AFTER six months, because the children's "home state" is now the new state. Don’t wait!
This post is being written because in the past 60 days, I have had seven inquiries about move-aways (that is a lot even for a custody lawyer). None of these people had a previous court order. Two wanted to move, one wanted to object to a move, and four of them wanted to know how to ‘get their kids back.’ Of those last four, I was able to help one because he had not waited too long. The other three had to be told to contact a lawyer in the new state.
We are a transient community. Many of us have children with people who used to live somewhere else. If there is a breakup, those parents tend to move back to where they came from. Do not think you will ‘fix it next week.’ If you wait too long you could permanently shrink your relationship with your kids.
What if You Waited Too Long?
The parent WITH a previous California court order will get the best result by seeking timely custody changes. However, even if six months has passed, the parent with pre-existing orders still has the right to file for a modification, or file for enforcement of the existing court order in this state.
If you are a parent whose children have been living in ANOTHER state for longer than six months, and there is no pre-existing court order, a local attorney cannot help you. Immediately hire a reputable Certified Family Law Specialist from the state where the children have gone, or take a trip to the local courthouse in that state for a self-help custody package (check online first to make sure they have a self-help center).
Are You an Out-of-State Parent?
If you are an out-of-state parent who must find legal representation in Los Angeles County to obtain parenting time and access to your children, seek local counsel who is experienced in interstate custody cases. We would like to help. Call us for a confidential consultation