child custody

Jurisdiction: 

Area of Law: 

Question: 

what do you do when you find out that your ex wife has left the usa and left your son with her brother and i pay child support and they have a power of att. paper and its not legal i checked in the court its not filed i have visation with him and she didnt let me but the brother just started letting me dont i have the the right to have legal custody of my son since she left the usa and remarried in another country she didnt even tell me anything about it. any advice

Selected Answer: 

DakotaLegal's picture

 

 
As the number of marriages between foreign nationals and American citizens continues to increase, so do the numbers of violations of US family court orders. One ‘positive’ in is that there are more laws being passed to deal with foreign jurisdictions and illegal child abductions. While your Ex may not be legally guilty of ‘kidnapping,’ she certainly seems to have committed a wrongful “retention” of the child, owing to your rights of visitation. Here’s a place to understand the difference: http://travel.state.gov/pdf/International_ Child_Abduction _Remedies_Act.pdf. One major issue will be where she went, and that country’s legal relationship with America.
 
Be calm, careful, and calculating. The primary object is to protect your child’s legal right to contact with you. Your intent is not to interfere with the mother’s rights, even as you can prove she has interfered with your rights and the child’s welfare, and not acted in the “best interest of the child….to have both parents involved.” See, for example, http://www.fact.on.ca/ Info/pas/borris97.htm. As that article points out, there have been civil lawsuits against a parent who essentially ended a father’s relationship for no reason.
 
At this point, avoid making any threats or promises about your getting the child back. Try to appear co-operative, even as you plan a legal strategy for the child’s safe return to America, and an American court.
 
Depending on your financial ability, you may be eligible for low cost legal aid. Try Tennessee legal aid http://www.tals.org/legal-aid-services-tennessee or the Tennessee Pro Bono program http://www.tba.org/info/program-aids-pro-bono-efforts-across-tennessee.
 
Has She Flatly Refused To Return?
 
Be ready to completely but simply document her actions and steps in taking the child out of the country. If there’s any possibility that you can peacefully communicate with her, simply to keep updated about the child’s welfare, then do that. The best alternative right now would be for the child to visit you. Frankly, even if you told her that you were not challenging her “right” to live overseas, simply try to get the child back for a visit. Once here, then US courts have physical jurisdiction over the case.
 
The answer to whether you can get custody, based on her leaving the country, will depend on several other factors. What her conduct almost certainly will mean is that you are entitled to a new hearing on her failure to follow the court order, and this may result in the need for a change in the custody order. Here’s a sample Family Court site: http://www.rutherfordcountytn.gov/juvenilecourt/localrules.htm#17 with the types of relief you may ask for. Note the “Request For Extraordinary Relief” and Ex Parte rules. In short, you can try to get an emergency order and ask for temporary custody: you will prove to the judge the child has been taken out of the country against the Order. If the judge grants the request for temporary custody, your later obligation (if you can get the child back) is to go back not court for a new custody hearing.
 
Again, keep in mind, if you can get the child back for a supposed “visit” (even agreeing to a closely supervised visitation at a US airport), then you can serve the mother with papers, and get US law enforcement to keep the child in America.
 
Also, be ready for the worst. It’s fairly typical in these cases for one parent to make false accusations about “why” they took a drastic step of removing a child from one jurisdiction. At the very least, you can expect to be accused of being “emotionally abusive.” By anticipating this, you need to keep two things in mind: (1) to have evidence you never presented any danger to your ex-wife or child and (2) that many people will refuse to help you based on this accusation, especially if you lose your temper in the process.
 
 
Tennessee Custody Rules: What the Order Says
 
The strongest point you will be able to make must be based on what the original custody order said. Look for key phrases regarding travel, notice about travel, and a request for permission to move. Most orders require a request to the original court, before the child may be moved beyond a certain distance, or if it interferes with a visitation order. It sounds as if the brother and mother are trying to use a trumped-up document (the so-called Power of Attorney) to obscure the original Order’s intent.
 
“Power of Attorney”
 
You mentioned her having that so-called “power of attorney,” but it’s not likely (as you discovered by looking at court filings) to really mean anything. One thing you will want to check, however, is whether the mother used this ‘document’ to make any fraudulent claims…such as to obtain a passport for the child. Your local Congressman should be willing to help check this through Homeland Security.
 
In the same way, do another records search, and find out if the mother and her brother have been in legal problems before they left. If they have, this is extra evidence to support your custody claim. Here’s one place where you can learn about searching court filings online, based on their names: http://ccc.nashville.gov/portal/page/ portal/ccc/caseSearch/caseSearchPublic/caseSearchPublicForms/.
 

All Comments

DakotaLegal's picture

 

 
As the number of marriages between foreign nationals and American citizens continues to increase, so do the numbers of violations of US family court orders. One ‘positive’ in is that there are more laws being passed to deal with foreign jurisdictions and illegal child abductions. While your Ex may not be legally guilty of ‘kidnapping,’ she certainly seems to have committed a wrongful “retention” of the child, owing to your rights of visitation. Here’s a place to understand the difference: http://travel.state.gov/pdf/International_ Child_Abduction _Remedies_Act.pdf. One major issue will be where she went, and that country’s legal relationship with America.
 
Be calm, careful, and calculating. The primary object is to protect your child’s legal right to contact with you. Your intent is not to interfere with the mother’s rights, even as you can prove she has interfered with your rights and the child’s welfare, and not acted in the “best interest of the child….to have both parents involved.” See, for example, http://www.fact.on.ca/ Info/pas/borris97.htm. As that article points out, there have been civil lawsuits against a parent who essentially ended a father’s relationship for no reason.
 
At this point, avoid making any threats or promises about your getting the child back. Try to appear co-operative, even as you plan a legal strategy for the child’s safe return to America, and an American court.
 
Depending on your financial ability, you may be eligible for low cost legal aid. Try Tennessee legal aid http://www.tals.org/legal-aid-services-tennessee or the Tennessee Pro Bono program http://www.tba.org/info/program-aids-pro-bono-efforts-across-tennessee.
 
Has She Flatly Refused To Return?
 
Be ready to completely but simply document her actions and steps in taking the child out of the country. If there’s any possibility that you can peacefully communicate with her, simply to keep updated about the child’s welfare, then do that. The best alternative right now would be for the child to visit you. Frankly, even if you told her that you were not challenging her “right” to live overseas, simply try to get the child back for a visit. Once here, then US courts have physical jurisdiction over the case.
 
The answer to whether you can get custody, based on her leaving the country, will depend on several other factors. What her conduct almost certainly will mean is that you are entitled to a new hearing on her failure to follow the court order, and this may result in the need for a change in the custody order. Here’s a sample Family Court site: http://www.rutherfordcountytn.gov/juvenilecourt/localrules.htm#17 with the types of relief you may ask for. Note the “Request For Extraordinary Relief” and Ex Parte rules. In short, you can try to get an emergency order and ask for temporary custody: you will prove to the judge the child has been taken out of the country against the Order. If the judge grants the request for temporary custody, your later obligation (if you can get the child back) is to go back not court for a new custody hearing.
 
Again, keep in mind, if you can get the child back for a supposed “visit” (even agreeing to a closely supervised visitation at a US airport), then you can serve the mother with papers, and get US law enforcement to keep the child in America.
 
Also, be ready for the worst. It’s fairly typical in these cases for one parent to make false accusations about “why” they took a drastic step of removing a child from one jurisdiction. At the very least, you can expect to be accused of being “emotionally abusive.” By anticipating this, you need to keep two things in mind: (1) to have evidence you never presented any danger to your ex-wife or child and (2) that many people will refuse to help you based on this accusation, especially if you lose your temper in the process.
 
 
Tennessee Custody Rules: What the Order Says
 
The strongest point you will be able to make must be based on what the original custody order said. Look for key phrases regarding travel, notice about travel, and a request for permission to move. Most orders require a request to the original court, before the child may be moved beyond a certain distance, or if it interferes with a visitation order. It sounds as if the brother and mother are trying to use a trumped-up document (the so-called Power of Attorney) to obscure the original Order’s intent.
 
“Power of Attorney”
 
You mentioned her having that so-called “power of attorney,” but it’s not likely (as you discovered by looking at court filings) to really mean anything. One thing you will want to check, however, is whether the mother used this ‘document’ to make any fraudulent claims…such as to obtain a passport for the child. Your local Congressman should be willing to help check this through Homeland Security.
 
In the same way, do another records search, and find out if the mother and her brother have been in legal problems before they left. If they have, this is extra evidence to support your custody claim. Here’s one place where you can learn about searching court filings online, based on their names: http://ccc.nashville.gov/portal/page/ portal/ccc/caseSearch/caseSearchPublic/caseSearchPublicForms/.