If a parent takes the children out of Virginia without the other's consent, what are the options for having them returned?

By Carolyn Grimes
December 21, 2016

There are a couple different scenarios. First of all, you're in an intact marriage and your spouse takes the kids to visit Grandma and decides not to come back. You have to decide whether your spouse has left you or not, and whether you need to file for divorce and ask the court for an order to return the children to you. If your spouse announces that they're leaving, they're taking the kids, they're going home to New Jersey to see Mom, you also have to decide whether to file.

If you decide whether to file for divorce in Virginia or whether to file a custody action in New Jersey to have the children returned, interstate custody actions are governed, and that's a loose term, by a statute called the Uniform Child Custody Jurisdiction and Enforcement Act. All of the states have enacted some version of this act. They all don't have the same version, but everyone has some version, and what the UCCJEA does is try to define which state the custody battle should be in.

Most of them have the version that says, where the child's home state was for the prior six months of the filing is where the custody case should be filed. If you live in Virginia, and your spouse takes off with the children and goes to Ohio, and they've been gone for three weeks and you realize they're not coming back, Virginia is a home state. You would want to file the custody action, and you may want to file divorce depending on the whole circumstances in Virginia. Ask a Virginia court to order that the child be returned to Virginia. Virginia has jurisdiction authority over the spouse who left, under its laws governing matrimonial domicile and custody.

If the state of Ohio, which has a pretty close version of the UCCJEA that Virginia does, they have the same rules, and they'll recognize that even though she's in Ohio now with the kids, that Virginia has jurisdiction. Sometimes you have to get the court order in Virginia that says, "Hey, return the child", and you have to serve your spouse in Ohio, and then take your Virginia court order to an Ohio court to get an Ohio court to enforce it.

What also typically happens is that you file in Virginia, she files in Ohio undoubtedly alleging an emergency – and there may well be an emergency – and then the judges, the Ohio judge and the Virginia judge are supposed to talk, literally talk, and decide who has the better jurisdiction, the better claim to jurisdiction, and they decide which state will have the case. One defers jurisdiction to the other state, and then you get your jurisdiction decided. You actually have to have a hearing about whether the children should be returned, and who should have custody.

That's when you're starting. If you're already divorced or if you've never been married, you just jump ahead to the custody hearing. It could be another wrinkle, if there already is a court order saying who has custody and the parent who leaves doesn't have custody. They've kidnapped the children, and then you call the FBI, and the Parental Kidnapping Prevention Act kicks in then, which is basically more emergency jurisdiction to determine which court has authority, but it's also a stronger statute that allows the children to be ordered back almost immediately. If the parent who leaves the state does have regular custody, then basically that's what we call a relocation custody case, where you have to file. You still have the children returned, because Virginia is where they have been living, but what the other parent is trying to do is move without court permission – and they generally file in the other state, and you have the battle. But the children being ordered to come back depends a lot more on the current court order, and then who can best take care of the children in that scenario.

If they take the children out of the country, then if that country is a signatory to what's called the Hague Convention – the Hague Convention is what governs international child custody and abduction suits, and you can look it up online and see who's a signatory, because a couple of countries you'll be surprised are not signatories – you then have to take your U.S. court order and enforce it in that country's court. They are supposed to follow the same jurisdictional standards as to whether the children should come back or whether the court action should be in the U.S. or in the other country.

Carolyn Grimes is a family lawyer at the law firm of Wade Grimes Friedman Sutter & Leischner PLLC in Alexandria, Virginia. To learn more about Grimes and her firm, visit www.oldtownlawyers.com.

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December 21, 2016
Categories:  FAQs

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