Holidays can bring heartache for divorcing parents

Editor’s note: The identity of the person featured in this story has been changed to protect the children and the parties involved in this custody case.

It was a cold, dark, December day, just before Christmas, when a judge told Bill Smith to go into the hallway outside the courtroom and take custody of his children.

That was several years ago.

“And he’s had them ever since,” said Merrilee Parr, a family law attorney in Coeur ‘d Alene.

Bill hadn’t seen his kids since he’d left for work the Monday before Thanksgiving. His then-wife, the children’s mother, had been served divorce papers on Thanksgiving eve.

“She left Thanksgiving morning with the children and took off out of state with them,” Bill said.

Bill had hired Merrilee Parr to file a divorce action just before Thanksgiving. Before she left with the children, Bill’s then- wife had been served with divorce papers that included a Joint Preliminary Injunction.

Parr explained, when a divorce action is first filed, an order, called a Joint Preliminary Injunction, is automatically issued to both parties that command each to not remove the children from the area (as well as other commands to not remove funds or transfer property), unless there is prior court approval.

“In my experience, the judges take a violation of these orders very seriously, especially the one directing that children are not to be removed from the area,” Parr added.

When Bill had returned home from work to find his children gone he called Parr immediately.

“Merrilee knew exactly what to do, and she was able to get an order to return the children right away,” Bill said.

“We used an emergency procedure provided for under the law in cases like this.”

After filing the proper papers with the judge and obtaining an order to return the children, locating the mother and enlisting the help of the local law enforcement, the children were returned that December day when the mother appeared in court.

“The judge asked her if she brought the children with her, and she said yes, they were out in the hallway, and the judge told me to go out and take custody of my children,” Bill said.

Parr said situations like this, involving what’s often called parental kidnapping or custodial interference, occur frequently around the holidays, especially near Christmas, as well as during Spring Break and at the start of a new school year. For a parent who violates a Joint Preliminary Injunction, or other custodial court order, and takes a child across state lines, the consequences can be heartbreaking.

It could affect that parent’s future custodial rights, as in Bill’s case. Bill was awarded not only temporary custody pending a trial, but permanent custody. Bill clearly was the innocent spouse, Parr said.

“If you’re an innocent spouse, and Bill is and always has been, and if this happens to you, there are court actions that can protect the children, and a resulting order can be swift,” Parr said.

“The courts consider taking children away from a parent a very serious matter,” Parr said.

Unfortunately, it’s not uncommon.

Nearly half of child abductions in the U.S. are by a parent or other family member.

Child advocates and law enforcement agencies recommend parents obtain legal counsel in these situations.

Parr said that more than 20 years practicing law in North Idaho has shown her that not every case is the same.

“Unlike in Bill’s situation, there are cases in which the innocent spouse is acting to protect the children or themselves from an abusive environment. It’s important for parents who think their only option to protect themselves or their children is to flee from the area to know that there are options and legal procedures to follow if there is evidence of harm or danger to the children or spouse.

“But fleeing the area or state rarely is a long term answer, and even an innocent parent/spouse who simply flees may suffer long term consequences.”

“There’s a process available if you’re an abused spouse, and it should not be fleeing the state with the children,” Parr said. There are local shelters and other places a spouse can go with the kids while remaining within the court’s jurisdiction.

In cases that already have custodial orders (these orders are not the general directives in the Joint Preliminary Injunction but are orders issued usually after a divorce or custody action is entered, and they provide for a specific division of custodial time between the parents), “I can usually get the kids back quickly if we have a prior custodial order in place, depending on the facts,” said Parr. “If parents do not bother to get a custodial order, these parents should know that verbal agreements between parents for custodial time are not usually effective with law enforcement if one parent decides not to return the children at the agreed upon time. I have found that without a court order, most law enforcement officials will not assist in returning the children.”

Smith said the important thing is to do what he did right away - find a good advocate. He hired Parr just as his marital troubles began brewing.

“You need someone who knows what they’re doing,” Smith said. “Because they won’t make the mistakes you might make if you try to do it yourself.”

For more information call The Law Office of Merrilee Parr at ( 208) 667-1227 or visit http://www.merrileeaparr.com