On behalf of The Marks Law Firm, L.L.C. posted in Relocation, Child Custody and Writ of Habeas Corpus on Tuesday, March 18, 2014
It can happen out of the blue. Your former partner asks to take a trip with your child, for a vacation or to see family. Suddenly, the trip extends and later you hear the awful and frightening words…we are not coming back.
Missouri has a clearly defined relocation statute, and its terms must be contained in every custodial judgment. It states that any parent seeking to relocate must do so in writing by certified mail to the other parent, at least sixty days in advance of the proposed relocation, and it must contain the address and phone number of the proposed new residence, the reasons for the relocation, and a revised schedule of physical custody. Once a parent complies with the required notice, the other parent has thirty days to object, and if so, the court will decide if the relocation is in good faith and in the best interests of the child.
If a parent relocates with the child without providing notice or after the other parent files a motion to prevent relocation, the parent is in violation of the law.
If you find yourself in this situation, how do you retrieve your child?
You have several options.
You could file a motion for contempt, stating that the other parent has wrongfully interfered with your periods of custody. However, a contempt motion will not work quickly enough to bring your child back immediately.
You could file a motion to modify, based on intentionally violating the relocation statute and depriving you of custody. Again, as with the motion for contempt, that motion will not provide a quick remedy.
The fastest way to get the return of your child is to file a petition for a writ of habeas corpus, which results in a judge ordering the other parent to appear with the child before the court on a given date, with the failure to do so giving the judge the ability to issue a warrant for the retrieval of the parent and the child.
Depending on the circumstances, your attorney may advise you to file a combination of the foregoing pleadings.
Usually, parents who get served with a writ of habeas corpus obey the order and appear, as they do not want to risk arrest and potentially nights in jail.
After the other parent returns the child, the court will allow the parent denied custody compensatory time. Also, depending upon other pending motions, the court may subsequently entertain contempt penalties, including paying the other parent’s attorney’s fees and costs in securing the return of the child, and could even consider changing legal or physical custody.
As you can see and might imagine, taking a child without the legal right to do so, to the detriment of the other parent, has serious consequences.
If you have questions about retrieving your child with a writ of habeas corpus, contact us – we can help.