Is this kidnapping?

[SquirrelSM]

My divorce was final in April.  My ex and I were granted joint custody of our 10 year old daughter with  my ex being designated as primary custodial parent; I am to have standard visitation (1st & 3rd weekends, every other Wednesday night 6-8pm, 4 weeks in summer, etc.).  We all live in Alabama.

In May, my ex began refusing visitation.  Everytime I tried to exercise visitation, my ex had an excuse: "Janie is sick." "Janie doesn't want to go.", etc.  Then my ex began refusing any contact whatsoever. If I called, they wouldn't answer the phone.  If I went to the house, they wouldn't open the door.  I didn't force the issue because I didn't want to cause a scene in front of Janie.

Now, my ex has moved with Janie and left no forwarding address.  I have no idea where my ex and daughter are.  I received a letter last week from Janie with a local post office box for a return address. The letter was three typewritten pages of how much she hated me and never wanted to see me again.  Janie signed it with her mother's maiden name as her last name.

I have sent letters to my ex's attorney, but received no reply.  A friend suggested I go to the police and file a kidnapping charge against my ex as I have no idea where my child is.  My ex home-schools Janie, so I can't even go to the school district to obtain an address.

1.  Can/should I file kidnapping charges against my ex?

[socrateaser]

>1.  Can/should I file kidnapping charges against my ex?

First, never use the word "visitation" in the same context as custody. Visitation is a personal non-delegable license to "visit" with your child. Custody, on the other hand, is the fully delegable authority to exercise care and control over a child.

You NEVER visit your child -- you excerise your custodial authority, because to do otherwise is to admit that you are not entitled to anything more than an opportunity to visit the child who remains at all times within the other parent's custody and control. OK?

The crime of Kidnapping requires(1)  the physical movement (2) of another person (3) against their will, (4) without lawful privilege.

The letter that you have received indicates that the child is not being moved against her will, thus there is no crime of kidnapping.

What there "is" is contempt of court, because the other parent is willfully violating the court's express custody orders. There may also be a separate crime in your jurisdiction of custodial interference, because the other parent is intentionally interfering in your lawful exercise of custody.

However, the crime of custodial interference does not exist in every jurisdiction, and I don't know about Alabama.

I would call the local county sheriff or child protective services and discuss the facts, and see if they think that a crime has been committed. The letter is pretty clear evidence of what has occurred and that may give you what you need to demonstrate a crime.

If no crime, then file in family court for an ex parte emergency restraining order granting you temporary sole custody on grounds that the other parent is preventing you from any contact with your child, and for a bench warrant to issue, requiring the arrest of the other parent so as to bring the parent and child before the court. Actually, I'd do this simultaneous with your complaints to law enforcement authorities.

But, don't stall. This is the sort of thing where the longer you wait to act, the less it appears that you actually care, and pretty quickly the court may decide that you have some ulterior motive or that the child fears abuse from you, etc., and may signficantly limit or deny any order it would have otherwise made in your favor.