Can I file a civil lawsuit?

[crayiii]

What is the name of your state?What is the name of your state? OR

My wife, her boyfriend, and her boyfriends parents are hiding my 5 year old son from me. The details have been discussed in this thread

Here's a quick summary:

Wife if running to avoid being served divorce papers and to avoid jurisdiciton.

Boyfriend is facilitating the hiding of our son and has told me repeatedly that I won't see him again and he is the father.

Boyfriends parents are hiding them at there house (or houses). When I have called, I can hear our son in the background.

My wife is not enrolling our son in school nor is she allowing me to talk to him.

I have kept a very complete calendar of each time I have called and her responses since August. I also have my cell phone logs to back this up.

I have spoken with the local police (I'm in Oregon, she has now moved to Washington) and they tell me that she is not breaking any law since there is no custody order.

I spoke with the Washington and the Oregon AG's office and the person I spoke with said they can't do anything.

My attorney has filed an ex parte motion for temp custody but he said that there isn't much chance of getting it.

3 process servers have giving up on serving her the divorce papers.

The Oregon statutes contain the following:

163.245 Custodial interference in the second degree. (1) A person commits the crime of custodial interference in the second degree if, knowing or having reason to know that the person has no legal right to do so, the person takes, entices or keeps another person from the other person's lawful custodian or in violation of a valid joint custody order with intent to hold the other person permanently or for a protracted period.

(2) Expenses incurred by a lawful custodial parent or a parent enforcing a valid joint custody order in locating and regaining physical custody of the person taken, enticed or kept in violation of this section are "pecuniary damages" for purposes of restitution under ORS 137.103 to 137.109.

(3) Custodial interference in the second degree is a Class C felony. [1971 c.743 s.100; 1981 c.774 s.1; 1987 c.795 s.7]


163.257 Custodial interference in the first degree. (1) A person commits the crime of custodial interference in the first degree if the person violates ORS 163.245 and:

(a) Causes the person taken, enticed or kept from the lawful custodian or in violation of a valid joint custody order to be removed from the state; or

(b) Exposes that person to a substantial risk of illness or physical injury.

(2) Expenses incurred by a lawful custodial parent or a parent enforcing a valid joint custody order in locating and regaining physical custody of the person taken, enticed or kept in violation of this section are "pecuniary damages" for purposes of restitution under ORS 137.103 to 137.109.

(3) Custodial interference in the first degree is a Class B felony. [1971 c.743 s.101; 1981 c.774 s.2; 1987 c.795 s.8]

I found the following reference to Oregon case law, although not the full text:

See State v. Fitouri, 133 Ore. App. 672, 677 (1995). “[The State’s] primary response is a reiteration of its legal position at trial: ORS 163.245 applies to cases where one parent takes and keeps their child away from the other, even in the absence of a custody order.” The court “conclude that the state’s construction of ORS 163.245 is correct. . . . .”

With this information, do I have a civil tort case? Can I file a lawsuit against my wife, her boyfriend, and his parents that will have merit?

 

[badapple40]

Why don't you just have the process server for the divorce action sit outside the residence where the child is being held until they locate the wife to serve her?

 

[crayiii]

They started in Alaska, moved to Oregon, then Washington, and now word is they are headed to Florida.

The process server in the past has knocked on the door and someone answers and they ask for my wife. They are told that there isn't anyone by that name and shut the door.

I paid a PI for several days to find them. They see our son and the boyfriend outside of the house but not my wife. I have now run out of money for PI's.

I've thought about trying to talk to the DA in my town but I don't know if they will see me.

 

[badapple40]

No -- you don't have the process server knock on the door, you have the process server sit on the residence until they see her. She has to come out some time.

And moving the child across interstate lines may involve federal crimes. You may want to try calling the F.B.I.

 

[crayiii]

Well, at this point we don't know where she is. We haven't seen her (or our son) for a little over a week.

I can't get the police to do anything, I keep being told that a parent can't be charged with kidnapping if there is no custody order.

Does anyone here have the ability to look up the referenced Oregon case to check if it would apply to this?

 

[Emerger]

I am not a lawyer.

I'm sorry to hear about your problem. There is a publication on "Family Abduction" at the National Center for Missing and Exploited Children. It can be downloded from their website:

http://www.ncmec.org

This pub is some 240 pages long. I did not review it. The website states that it contains information that may help in your situation. Good luck.

If you did file a civil suit against your wife, you would still have the same problem with service of process.