LD Parent not sending back child

[numbergirl]

My SD13 went to visit her mom in Florida.  We're in KY.  She is supposed to be on a flight this Sat to come back home.  The mom is now stating that she is not going to send SD back.  

BM has been gone for over 2 years.  My husband never filed for primary placement.  He has always had joint custody.  When she left SDs stayed with us.  Now hindsight as to our reason not to have it legally changed are stupid  but I don't even know if it would have mattered at this point.  

BM is an unstable, impulsive alcoholic.  We are 900 miles away.  We don't want to mess up by making a wrong move.  How to we get this girl home.  She is pretty hysterical at this point.  

[socrateaser]

>My SD13 went to visit her mom in Florida.  We're in KY.  She
>is supposed to be on a flight this Sat to come back home.  The
>mom is now stating that she is not going to send SD back.  
>
>BM has been gone for over 2 years.  My husband never filed for
>primary placement.  He has always had joint custody.  When she
>left SDs stayed with us.  Now hindsight as to our reason not
>to have it legally changed are stupid  but I don't even know
>if it would have mattered at this point.
>
>BM is an unstable, impulsive alcoholic.  We are 900 miles
>away.  We don't want to mess up by making a wrong move.  How
>to we get this girl home.  She is pretty hysterical at this
>point.  

If the other parent, by keeping the child in FL, is violating the current custody/parenting orders, such as by preventing you from exercising even some trivial weekend visitation, then you can file a petition for emergency enforcement of a child custody determination, and ask that the court issue a warrant, so as to have the child forceably taken by FL child protective services and returned to you.

If the above doesn't apply, then you need to file an ex parte motion for an order to show cause for emergency temporary sole custody, on grounds that the child is suffering from severe emotional distress on because of the out of state parent's refusal to return the child to the home where she has resided over the past two years, and then, on that basis ask the court to issue the warrant, as described above.

I don't know what your current orders actually say "exactly," so it's impossible to give exact advice. However, I would seriously consider obtaining an attorney to do something about this TODAY. Every day that you delay is a day that will make the court wonder why you don't consider this issue urgent, and that will significantly diminish your ability to obtain the emergency relief that you require.

PS. You could also just go down to FL and knock on the door, and ask to see the child and then when she appears, just take her and go. However, I wouldn't do this until I was sure that the current court orders would permit your visitation/custody at the time you actually undertake this little exercise, because that would prevent FL law enforcement authorities from arresting you for interference with child custody.

Then, when you return to KY, you would need to immediately obtain an emergency order and ask for a full custody/modification of parenting time hearing to clarify your rights going forward.

Talk to a lawyer today.

[numbergirl]

Thank you for your advice.  We did retain an attorney and are dealing with this.  

Now moving forward.  As I stated prior nothing was ever officially changed but with our new attorney we are getting that done.  We are meeting him next week.

What do we need to ask for?  This whole ordeal has totally traumatized my SD13 regarding visiting her mom long distance.  She's scared she'll eventually really not return her.  Like I said before BM is totally unstable, alcoholic, impulsive and emotionally abusive to both SDs.  

What is relevant to a judge about what the girls say goes on at BMs?  Such as them both being miserable because of BM drinking, fighting with her spouse nightly, badmouthing my DH and me and all out extended family for that matter including their 8 year old 1/2 brother, and crying jags that last for days presumitively due to some sort of disorder.

Will the girls have to testify?

If my DH hasn't filed for support from her for the past two years does that make us look bad like we don't need it?
Our new attorney seems aggresive but seems to think that since she is long distance with no chance of changing jurisdiction then she will be cornered into trying to do this via agreements by mail.  I don't see it.

[socrateaser]

>Thank you for your advice.  We did retain an attorney and are
>dealing with this.  
>
>Now moving forward.  As I stated prior nothing was ever
>officially changed but with our new attorney we are getting
>that done.  We are meeting him next week.
>
>What do we need to ask for?  

You're breaking the rules. In the future, number your questions and put them at the bottom of your facts or I won't respond.

You need to petition for a modification of custody, and simultaneously move for an emergency temporary custody order, on grounds that the mother abandoned the child 2 years ago, and that the child is suffering extreme mental distress as the result of her mother's refusal to permit her to return to KY. I am EXTREMELY concerned that your attorney is not in court right this instant doing this. You may want to ask why this isn't an emergency already. Until the mother actually keeps the child beyond the scheduled return date, it's not really an emergency, but since I don't know when that is/was supposed to occur, I can only tell you what I would be doing if I were representing you.

This whole ordeal has totally
>traumatized my SD13 regarding visiting her mom long distance.
>She's scared she'll eventually really not return her.  Like I
>said before BM is totally unstable, alcoholic, impulsive and
>emotionally abusive to both SDs.  

Get the child on the phone and record her telling you that she is frightened and that she wants to come home now. That recording will permit you to get an emergency temporary custody order. Do it today.

>
>What is relevant to a judge about what the girls say goes on
>at BMs?  

None of this matters. What matters is that the child has been in your exclusive care for two years, attending school in your county, developing and maintaining friends and activities, and the BM permitted all of this to occur. That is all you need to get custody, assuming that the child wants to come back.

>Will the girls have to testify?

Under the circumstances, and considering her age, I think it would be a good idea. However, I haven't met the child, so I can't tell whether or not she would be a credible witness.

>If my DH hasn't filed for support from her for the past two
>years does that make us look bad like we don't need it?

Irrelevant. Support is ordered based upon guidelines that take into account the parents' income and physical responsibility for the child. The guidelines are presumptively correct as mandated by federal law. So, your concerns here are unnecessary. If you are exercising primary custody, then you will have support ordered in your favor -- period.

>Our new attorney seems aggresive but seems to think that since
>she is long distance with no chance of changing jurisdiction
>then she will be cornered into trying to do this via
>agreements by mail.  I don't see it.

I don't see what any of the above has to do with the issue at hand. If the child is in distress and has been living with you for two years now, and the other parent is refusing to return the child on the basis that she still has court ordered custody, then you have all the grounds necessary to have that custody order changed immediately.

Get your daughter on the phone, and record her telling you that she wants to come home today. Then, give that recording to your attorney and tell him/her to get off his/her rump and march into court and get the @!#$$% emergency order.

End of story.

[numbergirl]

I'm sorry for my breaking the rules.  I'll try to be more careful.

1)  Does the child need to know that she is being recorded?


2) We were told that now since BM caved and had SD flight booked for this Sat that we shouldn't jump the gun in order to not make us look unreasonable.  I verified the flight online.  Does this seem reasonable advice from our attorney to want to wait now until this coming Mon to go for emergency?

[socrateaser]

>I'm sorry for my breaking the rules.  I'll try to be more
>careful.
>
>1)  Does the child need to know that she is being recorded?

Maybe. KY is a one-party State, so it's not illegal to record as long as the person recording is part of the conversation. However FL is a two-party State, so conceivably, you could be charged under FL law, if the other parent were to report your actions to the DA. It is not likely that the DA would prosecute this action, because of your reasons for making the recording, however, it is legally possible.

Therefore, I suggest that you tell the child that you're recording the conversation, so that the KY judge knows, when he hears the tape, that you're being completely open about your actions.

>2) We were told that now since BM caved and had SD flight
>booked for this Sat that we shouldn't jump the gun in order to
>not make us look unreasonable.  I verified the flight online.
>Does this seem reasonable advice from our attorney to want to
>wait now until this coming Mon to go for emergency?

Yes. You should wait. However, I'd still record the child, just in case.

[numbergirl]

I am literally crying as I type this.

~Child just called DH and said BM is not sending her back because she has a court date of the 25th.

~Waiting on our attorney to call me

~My DH is out of town until 4:30 with work.

Questions:

1)  How could she have a court date and we don't know about it yet?

2) Could someone (FL judge) have possibly let her change jurisdiction based on some fabrications?  

3) Could she possibly have some sort of emergency order on her end again based on some fabrications?

4) If our papers that are still outdated state every other week joint custody could my DH just go get her or do we again have to play the bait and switch game.

All this trying to be reasonable cr@p for a judge is making me think that's it's going to make us look like we (my DH) don't think this is an emergency.

Note:  Child is now depressed and actually seems ill because of all this.

[socrateaser]

>I am literally crying as I type this.
>
>~Child just called DH and said BM is not sending her back
>because she has a court date of the 25th.
>
>~Waiting on our attorney to call me
>
>~My DH is out of town until 4:30 with work.
>
>Questions:
>
>1)  How could she have a court date and we don't know about it
>yet?
>
>2) Could someone (FL judge) have possibly let her change
>jurisdiction based on some fabrications?  
>
>3) Could she possibly have some sort of emergency order on her
>end again based on some fabrications?
>
>4) If our papers that are still outdated state every other
>week joint custody could my DH just go get her or do we again
>have to play the bait and switch game.
>
>All this trying to be reasonable cr@p for a judge is making me
>think that's it's going to make us look like we (my DH) don't
>think this is an emergency.
>
>Note:  Child is now depressed and actually seems ill because
>of all this.

[socrateaser]

Well, don't say I didn't warn ya!

>>Questions:
>>
>>1)  How could she have a court date and we don't know about
>it
>>yet?

She can file a motion, but she needs to serve your DH, either personally, or by serving someone who lives at DH's residence, i.e., YOU, in order to get jurisdiction, even for temporary orders. This is getting interesting.

>>2) Could someone (FL judge) have possibly let her change
>>jurisdiction based on some fabrications?  

She has legal custody, so she can ask FL to modify on grounds that both she and the child currently reside in FL -- which at this moment, they do.

>>
>>3) Could she possibly have some sort of emergency order on
>her end again based on some fabrications?

If it were an emergency, then the court date wouldn't be the 25th. It would have already happened, and you will be seeing a process server or the Sheriff, either today or tomorrow, handing you an Order to Show Cause, to appear in FL and explain why the custody orders shouldn't be modified by a FL court.

>>
>>4) If our papers that are still outdated state every other
>>week joint custody could my DH just go get her or do we
>again have to play the bait and switch game.

Well, that depends on the status of the FL pleadings. If the other parent has obtained a temporary restraining order, then your KY orders are no good for the moment. If not, then yes, you could go get the child, assuming that this is your custody period as stated in the orders.

So, if you got there and the mother had you served with a petition to modify custody, but there is no restraining order among the docs, then you can say thank you, pick up the kid, and leave. Only, at that point you'd have to return to FL to try to get custody moved to you in KY.

I need to explain something now, and it's a little difficult, because I'm skirting a violation of the Rules of Professional Conduct. So, let me tell you a little about the law in this circumstance.

If you are served by the FL court before your attorney can obtain a temporary order in a KY court, then FL will obtain jurisdiction to determine this matter and you will need to hire a FL attorney, which will cost you WAY more than a KY attorney -- hourly rates in FL are double what they are in your neck of the woods.

So, how can you lawfully avoid service? You can't. And, my legal advice to you is that you should not do this, because I have a duty to not counsel you to do any fraudulent act, such as intentionally misrepresenting your whereabouts so as to avoid service of legal process. But, if you happened to not hear the doorbell and not answer when the Sheriff or process server were to arrive, or you were out of town for the weekend, and thereby unavailable to be served, well that would just be the other parent's tough luck.

And, at this moment in time, from the facts, it doesn't appear that you have any idea whether or not the other parent is actually intending to serve you with a summons, so you're still quite free to do as you wish, like go on a short weekend trip.

You should try to get your attorney into court and get your own temporary emergency order to modify custody, and then have it served on the mother BEFORE she manages to serve you, if that's her plan, because then she will have to hire a KY attorney and that will give you the advantage.

You have no time to lose, and I hope that I'm getting the message across, because this is real life, not a soap opera, and your opportunity to win a quick victory may be quickly disappearing "Like the sands through the hourglass, so goes the Days of Our Lives."

PS. I don't monitor this board every second of the day, although it may seem like it sometimes, so you can't depend on me responding at a moment's notice.

[numbergirl]

>Well, don't say I didn't warn ya!>

I know, I wish you were my attorney!

>PS. I don't monitor this board every second of the day,
>although it may seem like it sometimes, so you can't depend on
>me responding at a moment's notice.

I know I have gotten very lucky and do appreciate it more than you know.