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Child Custody

Can My Ex Refuse to Bring My Child Back

Almost every local and international movies and television shows incorporate scenes of marital and familial disputes. Seldom are the films and shows that do not have scenes that show couples throwing curses at each other, or parents who are fighting over the custody of their child. It has become a familiar scene to all of us, and often times, we tend to forget that what is being portrayed on-screen is actually happening to thousands of families off-screen.

Yet have you ever wondered how actual families who are dealing with such problems really feel? Has it ever occurred to you that what they might be facing are much worse than what is being projected on-screen? Have you ever thought that there are real people and not actors who are going through such a rough time? 

Or, on a personal note, you might be one of the thousands of people who faced the same tough battle and came out as the victor. You got rid of your nasty ex and gained custody over your child. Hooray! Life is wonderful. You are single and free, and the cherry on top? You are enjoying life with your child. What a wonderful prize, right?

Not for your ex. Your ex’s life might not be as beautiful as how you perceive yours to be. He or she might be miserable, not over your divorce, but his loss of custody over your child. And on the agreed day of visitation, he/she comes knocking at your door, asking for an hour or two to bring your child out for a drive to the park. You, oblivious of how he feels towards the outcome of the divorce, agree to his plea. Tick-tock, tick-tock. He/she only asked for two hours, but eight hours have passed, and then a day but your ex hasn’t returned your child yet. 

What can you do to take your precious child back? Read further to learn how to get your child from your ex, or to prevent such situations from happening. 

Non-Return

In cases where a parent is a number of hours late to return the child, it doesn’t automatically become a legal issue unless it has already become a pattern and has caused difficulty for the other parent. For the Family Court to be willing to intervene, the return would have to be days late. So, if it has only been a day, most likely, the Family Court will not intervene yet. 

Non-return happens when a parent takes the child away and hides, either by hiding within Australia or going overseas. In other circumstances, non-return takes place when a parent gets the child and refuses to comply with the pre-existing agreement. The agreement may either refuse to allow the parent to spend time with the child, minimize the time the parent gets to spend with the child or to refuse any or all contact with the child. 

Methods of Retrieval

If your ex refuses to obey the parenting or custody agreement issued by the court, there are a few ways to get your child back.

First, you have to do all that you can to convince your ex to return your child. Difficult as it may sound, but it is the first best thing that you could do if you want to get your child. 

If it is in your power to persuade your ex that their behavior could be dangerous and unhealthy for the child, then swallow your pride, and do it. Through this, you might be able to save your child and prevent costly litigation, although legal actions should be taken to ensure that it would not happen again. This could be the best first step that you could take.

You could try to communicate with your ex-partner in a way that does not aggravate things. You could send an e-mail or a text but see to it that you save whatever message you send or conversation you have so you could use these as evidence. Try to be as civil as you could be to your ex, it might soften their hearts. 

The second method has something to do with asking the civil court to authorize the involvement of the police. Although this could be expensive and the most time-consuming option for you, this is the best option for you to claim your child back. Once you have a valid court recovery order, you have set the boundaries for you, your child, and your ex. 

Court recovery orders are primary laws that could be enforced by the police. If the police would be ordered to ensure that court orders are followed, you and your child will be more secured and much safer. So, if you could do this, do it at the soonest time possible. This will be tackled extensively in the latter part of this article. 

The third is emotionally and physically risky and dangerous, especially for the child. You could keep in mind that your child may run away and return to you. This is not recommended at all, but if your child does this, make sure to inform the police. Runaways are not a priority unless missing or endangered.

You will need to inform the police and tell them that you did not kidnap the child and that the child is in safety. Unless you receive sound legal advice, never let your child out of the house in cases where the police or your ex would want to talk to your child. The child’s safety is what’s at stake here.

Fourth, you could take the child yourself. This is the last and least recommended way to retrieve your child. It is risky and highly dangerous to the emotional, physical, and mental state of your child. 

Applying the fourth method could result in violence. If you barge in their place while angry, your spouse might get angry as well and the animosity of the situation might escalate. However, if you resort to this method, make sure that you are not violating any court orders if you do not want this to backfire on you. This method is not recommended except in dire circumstances. This might result in negative consequences, and affect everyone, particularly your child.

However, in cases where your child might possibly be abducted, and have been taken overseas, there are added complexities. If your child is taken to a country that is a signatory to the Hague Convention on child abduction, then parenting or recovery orders made by the Family Court will be honored by the legal system of that country and your child can be returned to you. 

But if the country that your child has been brought to is not a signatory of the Hague Convention, finding a way to retrieve your child can be extremely difficult. It would be burdensome, specifically in countries where both parents do not have equal standing and may be considered as second-class citizens due to your religious beliefs, gender, culture, ethnicity, or other backgrounds. In cases like this, you should immediately contact and inform your lawyer. 

Whether your child is hidden somewhere in Australia or in another part of the world, you should seek legal advice right away. Cases like these are always urgent and require immediate attention. When the life of your child is at risk, there is no time to waste. 

Furthermore, it is also important to discover why your ex has taken such drastic action. It is not surprising to hear that one parent refuses the other access to their child, or even denies the other of the privilege of visitation thus causing havoc. But if this is not your case, then dig deeper, and find out the catalyst of your ex’s mischief. 

Find out why, and go from there.

Court Order Application

Now, we shall be highlighting the most reliable and effective way of retrieving your child. Amongst all the methods, the recommended is to secure a Recovery Order or Location Order. First off, you need to file an Initiating Application. In this application, you need to ask the court for the orders that you want. 

These include specific orders giving permission to the police to get your child from your ex and have him or her returned to you. In addition, you will also need to file copies of the birth certificate of your child. When you attend to court to file your documents, the documents will be stamped.

If you believe that your child is at high risk of abuse and violence under the care of your ex, you should get urgent legal advice. It is important that you bring your concern to the court quickly. It is also significant that an affidavit which contains details of your concerns would be filed.

Most importantly, you should file a Notice of Child Abuse and Violence. This is mandatory and should be filed when a child is being abused, or the child is trapped in a situation where the risk of abuse and violence is imminent. Though in most cases, Notice is filed alongside the application for parenting orders.

Moreover, there are a number of different orders you could apply for in court. The type of orders will depend on your individual case. Some orders you could ask for are the Ex-Parte Order, Short Notice, Interim “Live With” Order, General Recovery order, Australian Federal Police Recovery Order, Location Order, Restraint from Removal from the Australia and Airport Watch List Order, etc. These orders are distinct from each other and are applied to address your concern or circumstance. 

Once your documents have been filed, it should be ensured that your ex is given a copy of the filed documents. This process is known as serving the documents. For the service to be accomplished, you need to get someone to serve in your stead and must follow the right process. 

You may ask a Sheriff to serve the documents to your ex, just provide the address of your ex, details of the workplace, and details of any family or friends your ex live with. Alternatively, you also have the choice to ask a family member over the age of 18 to serve the documents. If so, they will need to file an Affidavit of Service inclusive of the time, date, and place of service, and it has to be sworn before a Justice of Peace or a lawyer. 

In instances where it is difficult for you to serve the documents, the court can make orders without the opposing party being served. This is known as an Ex-Parte Application. This happens in isolated cases, and strict rules govern this application. 

After filing the appropriate application, you need to go to court. It is required that you do so at the time and date stipulated in your documents. In going to court, you must:

  • be prepared to answer any questions asked by the judge
  • have a summary of your case prepared to help you answer any questions
  • prepare a pen and paper so you could jot down any orders given by the court
  • bring your documents with you
  • be calm and polite. 

The court may make orders that you are seeking during the first court date, particularly the important ones. Even so, remember that the court might not make its final decision about any general parenting issues on the first; it would instead possibly impose an Interim order. If the matter is to resume on another day, the court may give you hearing dates, directions about the processes to be followed, and directions about what needs to be done prior to the next court date. 

After successfully acquiring a Recovery Order, you will need to cooperate with the Australian Federal Police to have your child returned to you. You will also need to speak with the Family Law Team. It is very helpful to utilize prepare a photo of your child and to provide as much detail as you can about the possible location of both your ex and your child. 

Additionally, if you and your ex have joint custody over your child, the policies to address this vary from state to state. Most likely, you are to file a contempt action against your ex if they are not upholding their agreements. You might need to file for an order to modify the child custody agreement, or you could simply try to take away legal custody from your ex. 

Advanced Effort

Retrieving your child requires so much effort, time, and money; and, as much as possible, you want to refrain from experiencing such a traumatic and frustrating state of affairs. Thus, taking some advanced precautionary measures could rid you of the trouble. You never know when things would go out of hand. After all, isn’t it better to be safe than sorry?

So, there are a few things you do could before handing your child over to your ex. One is to make sure that your ex provides you with the exact address of where they would be staying. If your ex resists, then do not allow them to go out of your place, or somewhere out of your reach. It is your duty and priority not to put your child under potential harm. 

Another thing to ask from your ex is the contact details. It would be exhausting to locate them without the exact contact details. The details include mobile number, house telephone number, and even the current e-mail address. If you have removed your ex on your social media accounts, try adding him again. It is vital that you secure a copy of any detail needed to contact your ex. 

Lastly, get the details of the holiday, their planned activities, and itinerary. Get all the specifics about the places they would be visiting at a certain time. Also, be extra careful about handing over your child’s passport, especially if they are visiting a country that’s not a signatory of the Hague Convention. 

However, if you are worried that your ex might bring your child outside of Australia, you could place your child’s name on the Airport Watch List. You will have to apply to the court to place your child on the Watch List and send a copy of the application and any court orders to the Federal Police. Placing your child’s name on the Watch List can be done immediately after you have filed an application at court. 

On the other hand, it is expected that you also provide the same details to your ex if you are traveling with your child. You do not want to be selfish and start a war with your ex, that would definitely complicate things. Be civil and maintain impartiality to avoid hitches. 

Withal, it is also crucial that you keep thorough records. You may print and organize all relevant documents and communication. You could keep these records in a binder or file folder, and stack them somewhere secure. It is best if you segregate your different documents and pile them on separate folders. 

Knowing the laws that are applicable to your case is also vital. Parental interference custody laws may also be applicable. Understanding deeply the registration and other processes will definitely guide you and the police officials who might not be well-informed. 

You are also encouraged to familiarize yourself with the Uniformed Child Custody Jurisdiction and Enforcement Act or the UCCJEA because it might form the foundation of your case. The UCCJEA is designed to cut down on parental kidnapping and forum shopping. The forum shopping is a term used to describe a parent who moves to a different state where they can file a new case to obtain a more favorable custody deal.

Under the UCCJEA, courts are mandated to examine which state has jurisdiction over the child. One example of this is when a woman in Arizona thought that she could not file for custody after her ex took their son from a bus stop and transferred him to another state. Not knowing where her child was, she assumed that she could not file a lawsuit. Her ex kept his location in Oregon in secret for several months, then filed for custody. When he did, she discovered that because of the UCCJEA, she not only was able to file for custody in Arizona, but she was able to prevent the Oregon courts from accepting the custody case.

You ought to get down to the nitty-gritty of your child’s safety. Hence, never ever forget the central step, seek legal advice. Getting legal counsel from your lawyer might be an additional expense, but it could be your first line of defense. Seek a lawyer whose primary focus is not in milking money from you, instead, select one who is experienced in family matters and is comfortable in attending trials.

Further Reminders

Remember to remain calm despite feeling exasperated and anxious. Staying calm in difficult situations would help your mind focus and function rationally. In cases where your child has been kidnapped by your ex, you do not want to storm into the police office and anxiously yell at them to locate your child. If you fail to remain calm and act based on your emotions, things would turn out worse than it already is. Your anxiety and anger might aggravate the whole situation.

So remember to stay calm, and hold your thoughts together. Being over-emotional or defensive won’t be of help to your or to your child. You don’t want to end up in jail for threatening somebody, do you? So hold it together and remember not to let your heightened emotions overrule your mind.

We do not know if we have stressed this enough, but the most important reminder is to put your child’s welfare before anything else. Often, it is beneficial to first consider your child’s needs and mental health, instead of blindly fighting for your rights as parents. Consider the mental and physical effects caused by playing tug of war with your child. Even if one of you intends to play dirty, follow the agreements, and stay fair for your child’s sake.

In relation to your child’s mental health, as much as possible, be informed of the different mental health disorders and pay close attention to your child to see if symptoms are surfacing and never contribute to your child’s anxieties and problems. One possible cause of a mental health problem that you should be familiar with is the Parental Alienation Syndrome or the PAS. 

Parental Alienation Syndrome happens when one parent targets the other as undesirable and unworthy to be a part of the child’s life, poisoning the child against the parent and potentially forcing a sense of inferiority in the child who now believes that he or she is a product of defective parents. The Syndrome also takes place when one parent psychologically manipulates the child into being fearful, disrespectful, or hostile to other members of the family.

The visitation could be traumatic for the child who is expected to be hostile towards the other parent. It would appear that the violating parent–one who poisons the mind of the child–is supportive and only looks after the good of the child, but it is possible that the child would face emotional abuse and withdrawal from the said parent’s affection if the child does not behave in a way that alienates the targeted parent. 

Parental Alienation Syndrome is inherently abusive but difficult to distinguish, because the targeted parent may be portrayed as demanding and unreasonable by the violating parent who has coached the child to display hostility. Imagine how much emotional stress this would cause to your child.

This is a form of child abuse and you should never stoop down to this level because it would surely damage not just your child’s mental health, but your relationship together. Guard yourself not to corrupt your child’s mind, and make sure that your ex does the same thing. Take accountability in the proper development of your child.

Divorce could bring out the worst in two people who have once felt deep romantic feelings for each other. It is human nature to look for an outlet for those feelings of loss, regret, or despair. Never use your child as the outlet for your negative emotions. Remember that you have fought for your child’s rights and the court placed your child under your custody believing that it is what’s best for his or her welfare, so do not do anything contrary to the basis of the court’s decision. 

If you have noticed that you are gradually harming your child through the Syndrome, it is not too late to stop. Seek help from a doctor or a psychologist. Fighting Parental Alienation Syndrome is not impossible. Many parents have fought it, and you could too. Do it for both yours and your child’s good.

Conclusion

No matter how much you want to get rid of your ex, you could never deny the fact that he or she plays a huge part in your child’s life. For that reason, it is important for both of you to be flexible in dealing with each other for the sake of your child. Furthermore, it is a given fact that you do not hold control of your ex’s emotions and thoughts. 

Therefore, take efforts to impose precautionary measures to avoid mishaps. Jot down all the possible steps you could take to ensure your child’s safety, you may utilize all or some of the steps mentioned in this article. When problems arise, be quick to act on it. There are no easy solutions, but with the proper mindset and sufficient legal and non-legal guidance, you can get through it.

Educate yourself on the current laws of the land, specifically those that are related to family disputes. Most importantly, your ultimate focus should be on the welfare of your child. Do not cease to do things anchored on your child’s best interest. 

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