Your current or ex-partner/co-parent took your child to another city, state, or country without your knowledge or permission, now what?
It’s every parent’s worst nightmare: your child has gone missing. According to Child Find of America, approximately 2,300 children go missing every day in the United States. A family abduction is one of the five main reasons for a child going missing, and they estimate 78% of family abductors are the non-custodial parent, with 82% of abductors intending to affect custody permanently. This means that if your child goes missing and is abducted by someone you know, that person is likely to be your current partner or ex-partner/co-parent.
What are the first things you should do?
Is there a court order giving one or both parents rights to see the child?
No court order
If there is no court order in place designating who has custody of the child and when (for example, if a divorce case or case to establish a parenting plan has not been filed), a parent taking their child to another location without the permission of the other parent is not technically a crime. In general, parents are allowed to take their children out of the home, and even out of town, out of state, or out of the country, without obtaining permission from the other parent first. Even if the location of your child is concealed, it is still difficult for law enforcement to get involved without a court order telling them to (explained more below).
If the other parent takes your child to another city, state, or country without your knowledge or permission, you should work on filing a parenting plan action immediately (either through a divorce case, or a petition to establish a parenting plan if you are not married to your ex-partner/co-parent). I recommend you take a look at this blog post for assistance with that process. It can be a bit tricky to predict whether a judicial officer will force a parent to move back with a child if they have moved, so it’s important to speak with an attorney right away and try to file as soon as you can. There are also jurisdictional issues that can come into play as well, so don’t delay if you can help it.
Court order
If there is a court order in place designating who has custody of your child and when, then there are a few options you can choose to take separately, concurrently, or not at all:First, you can file a Motion for Contempt.
Generally, you will file a Motion for Contempt in this situation if you know where your child is located and you do not suspect they are in danger. There are two sections of the Parenting Plan this Motion for Contempt could fall under:
- Parenting-time schedules. If a parent has the child for their court-ordered parenting time and fails to return the child (this is generally called “withholding”).
- Moving with the children. If the parent who has “majority or substantially equal residential time (at least 45 percent)” moves with the child out of their current school district without giving at least 60 days’ notice and going through the proper legal channels to get the move approved.
If the other parent is found in contempt, they could be ordered to return the child, provide make up time for any court ordered time you missed due to their actions, pay a civil penalty fine, and potentially pay your attorney’s fees. A Contempt Hearing Order will be entered in the court case. If a parent violates the parenting time provisions and is found in contempt for doing so at least twice within three years, you may have the ability to request that the parenting plan be modified to limit the other parent’s time. RCW 26.09.260. The Court does have the option to consider ordering jail time for a parent withholding a child, although it isn’t very common. Finding the other parent in contempt in this situation, however, will not necessarily create any order specifically saying the other parent needs to return the child to you, and there is no follow up from law enforcement. If you don’t think it’s likely that the other parent will return the child to you even after being found in contempt, you should ask the Court to set a review hearing.
Second, you can file for an Immediate Restraining Order or Protection Order.
A Motion for Immediate Restraining Order would be filed in your family law case, while a Protection Order is a civil matter and filed separately. You can include your child in the request. If one of these is granted, the other parent will be ordered to return your child to you and will either not be able to see the child or will only be able to have supervised visits (the Court could potentially order either one of these scenarios, depending on the facts of the case) until the next court hearing, where a complete decision can be made. If you file a Motion for an Immediate Restraining Order, it usually can’t stand on its own, so you should also be filing either a parenting plan modification or a Motion for Temporary Family Law Order to get a new parenting plan in place. Law enforcement can assist with Immediate Restraining Orders.
Third, you can file a Petition for Writ of Habeas Corpus.
This is not the first step you can take in this situation and should happen only after you have a court order stating your child needs to be returned to you and the other parent hasn’t done so. In family law, a Writ of Habeas Corpus is a court order demanding a parent turn their child over to the court and authorizes law enforcement involvement (RCW 7.36). It protects law enforcement from civil liability for carrying out the writ; for example, they have the ability to break and enter to find your child or to arrest anyone who stands in the way of getting the child back. In some emergency cases, these writs can be executed on Sundays.Can my ex-partner/co-parent be criminally charged for taking my child without my knowledge or permission?
Conclusion
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Disclaimer
Every legal issue is very unique. Accordingly, the information in this blog is intended as general education material and not as legal advice. If you think you may have a legal issue, you should consult an attorney.