[JudyKayTee]

I don't know if this belongs here. If it does not I'm certain a Moderator will move it to a more appropriate place.

Moving without permission is often asked. I got called into a matter yesterday. I have never heard of circumstances like this, but I've seen the papers and this is 100% what happened.

Mother and father not married. Court Order that she has physical custody of just-turned 4 year old, and he has Wednesday night and alternating weekends. He is over $7,000 in arrears in child support (which I mention only because it's a fact, not because it matters when it comes to visitation). Mother is offered a job 90 miles away from where she presently lives. She talks to father when she drops child off for weekend visititation, tells him she would like to move, he says "okay, as long as it doesn't change visitation." (She has a witness, her sister. I appreciate that the witness is related to the mother so her "testimony" might be questionable.)

Mother moves a month later. Father picks the child up Wednesday, that following weekend for visitation, skips the next Wednesday. On Friday night (of mother's weekend) she is bathing the child when doorbell rings. It's the City Police (2 of them, 2 Police cars and the father). Police have in their hand an emergency order granting custody to the father because the mother has kidnapped the child and interfered with his parental rights by not going back to Court and getting her move approved by the Court. Father states he was never advised - which is odd, because he had seen the child the previous Wednesday.

Child, screaming, is removed from mother's residence, handed to the father and off they go to the previous City.

Mother had no notice of hearing, no notice any of this was being done.

She has an Attorney but was unable to get an emergency hearing... first hearing in normal course is October 31st. Mother talked to child on phone (father refuses visitation) and child said she will be good, she's sorry she was bad. Child obviously has no idea what is going on.

Court Order hinged on lack of Court approval. I've never seen anything like this - no notice to one of the parties.

I was asked to see if I can determine if there is a connection between the Judge and the father (and I hear this all the time when one party doesn't agree with a decision) OR if I can find proof that the father is unfit. Again, this will not be helpful because the mother has never made the allegation before. I believe the mother (and her Attorney) are grasping at straws; however, some cases stay with me and this decisions greatly sadden (and troubles) me.

A warning to anyone thinking of packing up and moving - with or without verbal approval. The other parent can turn on you, and you have no defense.

[AK lawyer]

... She talks to father when she drops child off for weekend visititation, tells him she would like to move, he says "okay, as long as it doesn't change visitation." (She has a witness, her sister. I appreciate that the witness is related to the mother so her "testimony" might be questionable.)
...

I would love the chance to tear this guy apart on cross examination. I doubt that the veracity of the witness can be seriously challenged.

... she is bathing the child when doorbell rings. It's the City Police (2 of them, 2 Police cars and the father). Police have in their hand an emergency order granting custody to the father because the mother has kidnapped the child and interfered with his parental rights by not going back to Court and getting her move approved by the Court. Father states he was never advised - which is odd, because he had seen the child the previous Wednesday.
...

Several comments:

• Of course I haven't read the application for the emergency order, but it does seem that the judge was out-of-line.
  
• Is this the type of "emergency" that normally warrants an ex parte order like this in NY (I assume that's where it is)? I take it you haven't seen anything like this before.
  
• Was the judge correct in his interpretation of the (state, I assume) parental kidnapping statute (assuming, everything the father asserted to be true)?
  
• And, assuming the court correctly found a prima facia case of kidnapping, is there authority for such an emergency order?

... ...
A warning to anyone thinking of packing up and moving - with or without verbal approval. The other parent can turn on you, and you have no defense.

She has a good defense. The only problem is the waiting. And the poor child thinking somehow it was her fault. :(

[JudyKayTee]

[*]Of course I haven't read the application for the emergency order, but it does seem that the judge was out-of-line.
[*]Is this the type of "emergency" that normally warrants an ex parte order like this in NY (I assume that's where it is)? I take it you haven't seen anything like this before.
[*]Was the judge correct in his interpretation of the (state, I assume) parental kidnapping statute (assuming, everything the father asserted to be true)?
[*]And, assuming the court correctly found a prima facia case of kidnapping, is there authority for such an emergency order?[/LIST]

She has a good defense. The only problem is that the waiting.

I haven't seen the actual Petition but the Order refers to the mother removing the child and not telling the father where the child is, denying access. That is, as I said, not true because the father did visit.

Yes, it's in NY.

I don't see the emergency, and I've NEVER seen the likes of this.

I don't see that this meets the criteria for kidnapping. I have read the Law - but you're far better at that than I am! - but I'm not seeing it. Her Attorney agrees.

There is authority if it's in the best interest of the child.

I'm having difficulty with the father claiming not to know the whereabouts of the child - mother has a listed telephone number plus he had visitation at the new residence - yet leading the Police straight to her house.

[AK lawyer]

I haven't seen the actual Petition ...

If you are being asked to investigate this matter, I think that's the best place to start: the affidavits, etc. the father submtted in support. It looks like with proper homework he can be royally shreaded at the hearing.

... Her Attorney agrees. ...

That it meets the criteria for kidnapping?

... I'm having difficulty with the father claiming not to know the whereabouts of the child - mother has a listed telephone number plus he had visitation at the new residence - yet leading the Police straight to her house.
...

Even more to the point is the fact that the father picked up the child on the Wednesday after the move. That suggests that the judge didn't clearly understand the circumstances. That's one reason to carefully review the proof the father submitted in support of his ex parte application. Was testimony taken in support?

[JudyKayTee]

The Attorney is going to get whatever was used to support the request for the Order before he and I meet. The Attorney thinks it could "loosely" meet the statute concerning kidnapping WITHOUT the visitation. I think the father conveniently left out the visitation when he filed.

There was no testimony - from what I am hearing (and, again, I haven't seen anything but the Order) the Attorney submitted the signed Petition with a supporting Affidavit from the father's mother (?) and the Order was granted.

I think the Judge either misunderstood or the paperwork contains out and out lies.

I don't understand the total lack of notice to the mother and literally ripping the child out of her arms without notice.

[cdad]

I don't understand the total lack of notice to the mother and literally ripping the child out of her arms without notice.

In an Ex Parte motion there can be a waiver of notification and an order signed. Then it is presented to the opposing party. It happens all the time. Restraining orders are the most common forms of this type of action in family court. The order is granted and then a hearing is set whereby the opposing party is allowed to represent their side. In a case like this I would assume there are restraining orders accompanying the order for a change in custody.

Here are some references to rules in your home state by jurisdiction.

Ref:


Ex Parte Motions - Local Rules & Civil Procedure - Latest updates!

[JudyKayTee]

If there is/was a restraining Order it has not been served on the mother.

[cdad]

If there is/was a restraining Order it has not been served on the mother.

You may have to wait until you see the original orders that came from the ruling to know for sure. It might be part of the same document. Im not saying it is. But with accusations like what is being thrown out then there is a high likelihood the courts will try to control at least one of the parties.

[ScottGem]

A few points. I can see this happening without notification to the mother. The judge hears kidnapping and believes they have to move fast. I suspect the father left out key information to the court. What I don't understand is how the father expects to get away with it.

Once the court is shown that the father was completely aware of where the mother was and that he had his visitation AFTER the move, I suspect the court is not going to be very happy with the father. I would not be surprised if he has his visitation reduced.