What to do if my 6 year old was sent to temporarily live with her father and now he won’t give her back?

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What to do if my 6 year old was sent to temporarily live with her father and now he won’t give her back?

My ex and I came to an agreement in which he would keep our daughter for a month, while I came moved to another state to get situated. I am ready to get her back but now he will not give her up. There is absolutely no custody order in effect and never has been; up until the 5th of last month 5, she lived with me her entire life. How do I go about getting my daughter back? Is it considered kidnapping if I bring her back with me if there is not and has never been a custody agreement in place?

Asked on October 28, 2012 under Family Law, North Carolina

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

You don't mention which state your in or which state he is in-- but it looks like you are in North Carolina.  The laws of the state that you are in will control what you can and cannot do. 

North Carolina is like many states in that "kidnapping" is the taking of person/child without authorization.  Since he's a parent, he can grant that authorization-- so it's not going to be kidnapping.  Many states do have parental kidnapping statutes which have titles like:  "interference with child custody" or "custodial interference."  These statutes, however, require there to be a court order in place and a violation of that court order. 

So.... what you need to do is get a custody suit filed, ask for temporary orders that grant you custody of your daughter, and then advise him of the order.  If he refuses to comply with the order, some jurisdiction have what is called a "writ of attachment" process-- which is an order by a judge directing a sheriff to take the child and return the child to you.  When looking for a family law attorney, try to find one that has some multi-state experience, because you are more than likely going to have some overlapping or conflicting provisions between the two states. 

If it is possible, then you can go to the state where she is at and return home with her.  As mentioned above, because you are a parent-- this would not be considered kidnapping.  I would also not be considered interference with child custody because there is not an order in place.  The sooner you can get an order in place the better, however.  The order will give you some backing when you go to get her in the event that he decides to bow up and assert his parental rights.  If the police show up and both parents are demanding access, the police will leave the child with whoever the child was already with.  If there is an order, though, they will usually back the parent with the order. 

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Given the situation that you have written about where your "ex" will not relinquish custody of your minor child where you have had custody of her for the vast majority of her life, I suggest that you consult with a family law attorney in the county where your "ex" resides to ascertain what is the best legal course to get your child back. Possibly consulting law enforcement may another course of action.


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