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Kiethan · Jul 6, 2012, 04:59 PM

My cousin was in an abusive relationship and they have recently separated but he still threatens to take their child away from her. She is very stressed and scared that he will get custody of the child as she has no police reports of the abuse. With no family and friends nearby, she is very scared and alone. He is not allowing her to take the child on vacation and she also fears that if she leaves without his consent he will file kidnapping charges. Can we avoid this situation with a protective order? How long does this process take?

JudyKayTee · Jul 6, 2012, 05:12 PM

Is it a legal separation or are they just living apart?

AK lawyer · Jul 6, 2012, 05:16 PM

Originally Posted by Kiethan

... he still threatens to take their child away from her. ... He is not allowing her to take the child on vacation and she also fears that if she leaves without his consent he will file kidnapping charges. Can we avoid this situation with a protective order? How long does this process take?

An order enjoining him from taking their child away from her? In the absence of a custody order, either parent has the right to take the child, including taking the child "away from" the other parent. A protective order wouldn't be the remedy. She needs to file for a temporary custody order.

An order enjoining him from not allowing her to take the child on vacation? How would he "not allow" it? If she filed for such an order, he could counter-file for an order for an order prohibiting her to take the child on the vacation. The result would probably be an order specifying terms, duration, and other details of such a vacation.

An order enjoining him from filing kidnapping charges? No.

But you should know that one parent taking a child somewhere without the consent of the other parent is not usually called "kidnapping". Many states have laws against interference by one parent with the other parent's parental rights. But you would have to look at the laws of your state to determine what exactly is prohibited.

Kiethan · Jul 6, 2012, 08:03 PM

Thanks for your reply. They are living apart because he kicked her out. She works and he takes all the money. He bought a house and made her sign a prenump. She asked him for some money to pay some bills and he kicked her out! So she has to file a temporary custody order? Or can she just take her daughter with her? She leaves her daughter with the father when she goes to work because she can't afford to pay a sitter but everyday she has to fear that she will never get to see her daughter again. That is very unfair. Without a custodyor consent from the other parent, can she cross the border?

Kiethan · Jul 6, 2012, 08:04 PM

Originally Posted by AK lawyer

An order enjoining him from taking their child away from her? In the absence of a custody order, either parent has the right to take the child, including taking the child "away from" the other parent. A protective order wouldn't be the remedy. She needs to file for a temporary custody order.

An order enjoining him from not allowing her to take the child on vacation? How would he "not allow" it? If she filed for such an order, he could counter-file for an order for an order prohibiting her to take the child on the vacation. The result would probably be an order specifying terms, duration, and other details of such a vacation.

An order enjoining him from filing kidnapping charges? No.

But you should know that one parent taking a child somewhere without the consent of the other parent is not usually called "kidnapping". Many states have laws against interference by one parent with the other parent's parental rights. But you would have to look at the laws of your state to determine what exactly is prohibited.

She lives in California

Kiethan · Jul 6, 2012, 09:41 PM

If she takes her daughter away from the father, does she need to report abuse to the police in California or can she do that in another state? I don't understand why she thinks she has to stay near him when she fears for the safety of herself and her daughter, even if they have a custody battle she doesn't need to stay in the same state right?

AK lawyer · Jul 7, 2012, 05:43 AM

Originally Posted by Kiethan

... even if they have a custody battle she doesnt need to stay in the same state right?

A "custody battle" would mean ongoing litigation for custody. If one of them were to file for custody, and he be awarded temporary custody & visitation order, she would have to follow that order. If it required, for example, that he be given visitation every Tuesday, taking the child out of the state would require her to return the child to the state every Tuesday. If she failed to do so, she would be in contempt of court.

AK lawyer · Jul 7, 2012, 05:52 AM

Originally Posted by Kiethan

She lives in california

California's kidnapping statute would not apply.

Kiethan · Jul 7, 2012, 12:57 PM

They are living apart but she is living in fear. They do not have a custody battle as of yet and she has not yet filed any police reports for the abuse. What is the fastest way to get away from him keeping in mind her best interest regarding custody if they were to have a battle

Kiethan · Jul 7, 2012, 01:05 PM

If she were to leave today, what does she need to do? Does she need to report to the police or go to a shelter in her state? Or can she go to a shelter in another state? Would a protective order help in any way? What if after she leaves he reports the child missing? Will she get in any sort of trouble? This guy will do anything to make her life miserable, at least that's what he threatens to do. Also he says he wants to fight for custody so that his sister can take full custody. Is that even possible?

Kiethan · Jul 8, 2012, 12:07 PM

Please help, but also keep in mind this is an abuse case if that makes any difference.

JudyKayTee · Jul 8, 2012, 12:18 PM

Originally Posted by Kiethan

If she were to leave today, what does she need to do? Does she need to report to the police or go to a shelter in her state? Or can she go to a shelter in another state? Would a protective order help in any way? What if after she leaves he reports the child missing? Will she get in any sort of trouble? This guy will do anything to make her life miserable, at least that's what he threatens to do. Also he says he wants to fight for custody so that his sister can take full custody. Is that even possible?

His sister can't get full custody unless BOTH parents are a danger to the child. He's probably saying HE will get custody and then "hand off" the child to his sister.

The Police have not been involved at all, right? Without Police Reports it's difficult to establish a pattern of abuse, particularly when a marriage/relationship is falling apart. Allegations then (but not at the time) sound like revenge or plain old sour grapes. It might be difficult to get a Protective Order.

They both have equal rights to the child at this moment - yes, she could leave the State but he COULD bring her back by Court Order saying she removed the child from him, he cannot see the child, and I'm not sure that the Court would side with her.

The child won't be missing - the child will be with her mother. The Police in my State (NY) would tell him to go to Court and file for custody.

Yes, she can seek out a shelter in your area, move in with a family member, get herself and the child out of the house.

She also needs to consult with an Attorney - I know, it sounds like I'm "drumming up" business but there are too many missteps that could occur in this situation and she needs to be safe physically and mentally and legally protected.

On the other hand if this is a VERY abusive situation she needs to leave NOW, keep the child safe, worry about the legal aspect later.

Could she stay with you or another family member for the short term? He show up at your place and the Police will arrest him. A residence they share, you never know.

JudyKayTee · Jul 8, 2012, 12:21 PM

Originally Posted by Kiethan

Please help, but also keep in mind this is an abuse case if that makes any difference.

Legally and as far as the Police are concerned at this moment this is not an abuse case because no one has filed any Police Reports concerning abuse - am I right?

I know you mean it's an abusive situation but, again, that is her words versus his.

As far as making her miserable - he's making her miserable now. Every person who doesn't want a divorce and is abusive says the same thing. My ex-husband was going to make me miserable, too. He did - right up until I divorced him. I'm pretty sure he is making someone else miserable now because I haven't heard from him in many years.

Kiethan · Jul 8, 2012, 05:37 PM

Thank you JudyKayTee for taking the time to help. How would she be able to cross the border or leave the country for vacation without his consent? Would she need a temporary custody order, protective order or police involvement to avoid getting consent in an abusive case. All of her coworkers can witness that she has been abused, even her daughter says that she hates her dad because he is mean. Sorry I have so many questions, I'm still confused as to what needs to happen. What does she need to do before leaving the country? Can she leave without his knowledge/consent?