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  1. #1
    lolodi Guest

    custodial rights question

    What is the name of your state? Ohio

    My husband is the non-custodial parent of two teenagers. We will have them with us for two and a half weeks. I planned to take my stepdaughter, turning 15, out of town as a birthday gift. Her biological mother, legal guardian, is threatening to file kidnapping charges against me because she does not trust me, and to call the missing children's hotline. She will be aware of our whereabouts, and scheduled time to return home. She will have the number of our hotel, as well as my stepdaughter's cellphone number. We have talked to her local police department, who have said they would not treat this as kidnapping, but as a civil case. My husband's attorney feels that, during those two weeks, my husband acts as custodial parent, and has the right to give me permission to take my daughter on this trip.

    Has anyone been in a similar situation? Can my husband be taken to court for contempt of court charges? Can I be hit with felony charges for taking her?

  2. #2
    businessjustice Guest
    have your husband take a look at the custody agreement, if there is anything in there about going out of state w/o concent of the other parent (and I'm talking anything in regards to it, including moving out of state) it COULD be twisted into a contempt charge.

    You said the mother is LEGAL guardian, (and this is key) does that mean the agreement states she has sole custody and your husband only has visitation and not joint legal custody? If that's the case...anything and everything has to be approved by the mother first...and you will be in for it, maybe not kidnapping charges but definately something having to do with family court if you take the child. Yes, technically, he is somewhat "CP" on his time, BUT it is all in the wording of the agreement. (sole, joint, joint legal, primary residiental....etc so on)

    You can still do it, but be prepared to have all hell break loose later, regardless if she has a leg to stand on or not.

  3. #3
    Terry7 Guest
    Exactly,How is the order worded ? Mine was neither party remove the child(ren) from the State w/o written permission from the other,Exept for vacations.
    She was found in contempt,but under a whole set of cicumstances including kiddnaping & hidding them,then the judge only ordered her ( 30) days in jail ,or produce the child for visitation by a certain dt. ( the crimal statutes of limitations had expired ) wich would have been Felony charges.
    The key is contempt >

  4. #4
    lolodi Guest
    The decree says that the kids may not be permanently removed from the county, and that's all. Nothing regarding taking them out of state on vacations or anything. My husband has taken them out of state before. The issue with this is that I would be taking my stepdaughter without my husband being there.

    The divorce decree states the mom is "residential parent and legal custodian".

    So, considering she's known about this planned trip for weeks, couldn't she just go get an emergency court order telling me I can't take her? Wouldn't that make this all so much easier to figure out? I'm really not sure what to do with this one. My husband's lawyer is quite confident that she will have no case with this.

  5. #5
    Terry7 Guest

    Registered: Jun 2003
    Posts: 63
    I would be confident too that NO violation(s) would occur !!
    Out of curiosity is your husband ordered to tell the mother,where the child is during his visitation schecual ? If not ,why even tell her ? you know what she plans to do.
    You stated you are planning to take her out of town.The order says permantly remove them from the county.
    Permantly is the KEY wording here.
    Is the town in the county? I'm just wondering,nothing to do w/ this legally.

  6. #6
    lolodi Guest
    No, the town is not in the same county. I am actually taking her across state lines, though she said she'd file the same charges even if it were in state.

    Yes, both parents are to know of the whereabouts and have contact info for the kids at all times. My stepdaughter has a cellphone, so it would be easy enough for her to know where we are. I also do not want it to appear that we are hiding anything. The kids get interrogated when they get home - so there's no way they'd be able to not tell her that we went.

    The main question is still this - can my husband legally give me the permission to take my stepdaughter out of town during his visitation, even though the mother has vocally stated I cannot take her?

    Shouldn't the divorce decree have stated that we cannot take her somewhere without the consent of the legal custodian, if that were the case?

  7. #7
    businessjustice Guest
    where you run into the snag is the fact you are not a legal guardian of the child. It's fine if he is with, she has no say, but going without him...What I'm trying to assess is what in the decree she might be interpreting (or her lawyer is interpreting) to be a way to stop you, or cause you grief upon return.

    Check the decree for a few other things:

    Is there first right of refusal in place?

    In that she is the legal guardian, does it say anything about your husband having to get her approval on any child care arrangement he makes? (non-relative, that is)

    Who's medical policy is the child on?

    An emergency order is going overboard if she can actually just hold you in contempt, possibly causing your husband a set back later in any other custody change or dispute. You don't want contempt charges...

    figure out the answer to the above questions, I might have more....

  8. #8
    lolodi Guest
    I believe the only thing she is interpreting is the fact that she is legal guardian of the kids. She has not said anything about speaking to a lawyer, or contempt charges - the only thing she keeps talking about is that she will call the police and try to file kidnapping charges. Personally, I would think this means she probably hasn't talked to a lawyer - I can't imagine kidnapping charges from this.

    I'm not sure what right of refusal means, but I also don't see that phrase in the decree.

    There is nothing about getting her approval on child care arrangements. Just that both parents need to be aware of the children's whereabouts, who they are with, etc. Nothing about permission.

    The children are both on my husband's medical insurance, as am I.

    The kids are turning 15 and 17 this summer, so I can't imagine any custody changes that may happen. They've been to court before for piddly little things, which of course has not made the judge happy, so I'm sure the court would not look kindly on this. But the only possible custody change is my stepson moving in when he turns 18 but is still in high school.

  9. #9
    Terry7 Guest
    Shouldn't the divorce decree have stated that we cannot take her somewhere without the consent of the legal custodian, if that were the case?

    Here again,"we "are now getting into confusion. Or are "we" ?
    If your name is-not on any of the orders , You legally have no right to interfere with the admistration of the Courts orders.
    Your husband allowing you to take the 15 yr. old within the County lines for a day trip is one thing.Here you are talking about State lines,and for 2 wks.
    There is a huge difference. If your husband,the child ,and you went ,and abided by the order,everything would be fine.
    Do you really want to chance FELONY CRIMINAL CHARGES ?

    By the way,visitations are just that, " Ordered " for the purpose of the ( Parents ) to visit with their children.

  10. #10
    businessjustice Guest
    you know I noticed something in your first post, you said HER local police station wouldn't consider it kidnapping, but what if she called the station where she "found" you at? Where you are on vacation, hubby isn't there, you have no proof it is actually ok...

    don't assume she hasn't talked to someone.

    When this custody agreement took place, did your husband fight for more rights (like legal say) and lose? Or did he just not ask for it? Reason I'm asking: think in terms of what would happen AFTER, if say she did file contempt of court.

    If you have an older judge, who leaned more towards mom and gave her more of what she wanted over what dad did, he or she still will. If she files a contempt charge on this, it will stick, and there will be consequenses for it. Remember, judges can still allow personal opinion to taint rulings.

    You have to figure out if it is really worth the risk, because SOMETHING will happen if you take the child out of state without the father there. Be it as outrageous as kidnapping, or contempt later.

    Out of curiosity, why isn't dad going on vacation? It won't look good in court (if you have a biased judge) if dad chose not to go because he had to work, as Terry correctly stated, visitation time is for the biological parent, and he should be making arrangments to spend that time with his child. One or two days IS one thing, longer than 5 days absence, is another.

  11. #11
    lolodi Guest
    I apologize if I was unclear in my original post. We have the children staying with us for 2 weeks at our house. I would be taking her for two days of those two weeks. We own a business, and do not feel we can both be gone at the same time. My husband looked at this as more fun if it were a girls' shopping trip, and it gives him time to spend alone with his son. My husband is taking time off from his regular job to be with his kids during these two weeks.

    My husband never got joint legal custody because, unfortunately, his lawyer didn't feel it was necessary. We learned later that this lawyer apparently did not fully understand the meaning of it - he told my husband that he could take his son to get his temporary drivers license. When my husband asked his new lawyer, she told him that the ex would have him in court in a minute because he doesn't have joint legal. At this point, it is unfortunately too late to try to change it since we cannot show a good reason for the change. But it was never a matter of the judge not allowing my husband to have any legal custody rights.

    My husband's lawyer has instructed me to have a copy of my marriage license, a copy of my husband's divorce decree, and a notarized letter from my husband that states I have his permission to have my stepdaughter with me. She felt this should cover it if I do get questioned.

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