One of the unpleasant realities of divorce is that parents who share custody of their children often have to spend the holidays without their kids.
The mom or dad who has primary custody will put their child on an airplane or watch the other parent drive off with them in the back seat. The expectation is that the child will be returned in a week or two. Unfortunately, that expectation is sometimes crushed when the other parent doesn’t return the child at the agreed upon time.
“Parental kidnappings and/or what can be termed ‘custodial interference’ spike this time of year,” said Merrilee Parr, a Coeur d’Alene family law attorney. “The child is sent out of state for Christmas break with the other parent and they don’t come back. It’s very sad, but I see a lot of them around the holidays.”
Child abduction is a national issue. About 2,000 children in the United States are reported missing every day. Most children who are kidnapped aren’t taken by strangers. They are taken by their parents or another family relative. This is done for an array of reasons, but usually it occurs when a custodial order is not viewed as being “fair” by one of the parents or worse yet, there are no custodial orders from the court.
What seems like an obvious crime isn’t always clear cut — especially if there’s no court-ordered custody agreement. Without a custodial order, getting your child back can turn into a legal quagmire and local law enforcement efforts can be frustrated due to the absence of a court order.
“Many times parents don’t have a custodial order because they aren’t aware they need one, or they think they have a verbal agreement with the other parent,” said Parr. “They don’t think they need protection when they really do. With a clear specific order, I can act quickly and get the kids back.”
Divorce around the holidays is very common, and sometimes a parent will file for divorce and leave the area with the children. That’s a big no-no. Idaho courts issue a joint preliminary injunction when a divorce is filed, prohibiting removing any child out of the court’s jurisdiction without prior court order or written consent of both parents.
“The courts do not like that injunction being violated and respond accordingly,” said Parr. “I’ve seen one parent file for divorce and the other parent flee with the children. You can’t do that and it will likely impact your custodial rights down the road.”
For situations where there is a violation of a court order, law enforcement can act quickly — even issuing an Amber Alert if the child has been kidnapped.
However, most of the time if there aren’t specific custody orders, getting a child back can make things more complicated, said Parr. To protect against a protracted legal battle, Parr strongly recommends drawing up a custody agreement at the time of divorce. These agreements can be revisited if there are substantial changes in circumstances, such as one parent getting a new job in a different state.
The agreement should include specifics about holidays and when the child will be returned. Local rules allow a 10-minute late window, but Parr said calling the police after 12 minutes might be overreacting.
“Call an attorney when you know the kids aren’t coming back,” she said. “Often times, one parent will try and enroll the children in a new school. A tip-off is when the school calls, asking for immunization or academic records from the current school.”
It may appear that parents who never marry have no options, but Parr says that’s a misconception.
“A parent can file a custody action with the courts even if they weren’t married and request an order for a custodial schedule with the same details for a weekly, summer and holiday schedule as those parents who were married. It’s important to pursue this option even if both parents are getting along.”
Nationally, 6 percent of parentally-abducted children are not returned. Forty-six percent are returned within one week of being taken.
“I can get the kids back much more quickly if we have a custodial order in place,” said Parr. “I would rather prevent these situations from getting out of control in the first place. There are also emergency provisions in the law that allow legal action with or without a custodial order.”
“With most emotionally charged situations, knowledge of what your options are before a crisis arises is a good way to either prevent or prepare,” said Parr.
By MARC STEWART