Things to Do to Try to Prevent a Kidnapping
If you believe that your spouse is about to take your child without your permission and against your wishes, then you must immediately do what is needed to get a court order giving you temporary sole legal custody, care and control, and sole physical possession. (1)
- Ask yourself these questions:
- Is this an emergency, such that, without immediate action, there will be irreparable harm to you or to your child? (2)
- Are you afraid that your spouse will kidnap your child if you give advance notice that you are going into court to ask for a temporary order of sole legal custody, care and control, and sole physical possession of your child?
- Has your spouse threatened to take your child or threatened to make sure that you never see your child again?
- Has your spouse threatened to physically harm you or physically harm your child?
- Has your spouse ever physically harmed you or your child?
- If there ever has been physical harm caused by your spouse, did that occur once, long ago? If so, are you still afraid because of what happened back then?
- Has physical harm occurred on many occasions?
- While your spouse was growing up, was his or her father or mother abusive to each other or to the children?
- Was your spouse raised in a dysfunctional family?
- If the answer to any of the above or similar questions is "Yes," then you should go into court without giving advance notice to your spouse. If you do go ahead without notice, you will be trying to get what courts call an ex parte court order. An ex parte court order is issued before the other side has notice of the case or of this particular motion. These orders usually are good for no more than ten days.
- In which court do you file your case? You go into the court that is in the place of your child's "home state" or "habitual residence" or "domicile." (3) If it is an emergency, go into the court in the jurisdiction where your child is or where you and your child were last together.
- Check the kidnapping laws in your state. For example, in Massachusetts the laws against kidnapping your own child do not apply unless you have filed a court proceeding for custody, separate support, or divorce, (4) and perhaps not until you obtain an order of custody.
- After getting an ex parte order, you probably will be required to serve a copy on your spouse. Usually there also will be another court paper, which may be called an Order of Notice. The content of this second paper tells your spouse that you have started a case in court, that you have asked for and received a temporary order, and that there will be a hearing in court on a particular date, usually within three to ten days. The purpose of that hearing is to decide if the temporary relief should be continued indefinitely.
- The following is some general information about the courts.
- When you go back into court for what is often called the "return" of the Order of Notice, the case usually will be heard de novo. This is supposed to mean that the judge will start off the hearing as if there was no temporary or emergency relief granted to either party.
- As a practical matter, when courts deal with children, the parties often are faced with an "inertia" problem. That is, courts are reluctant to change whatever the status quo may be, no matter how it got that way. But the courts are equally reluctant to permit one person to unilaterally change the status quo. So if the child has been "kidnapped" or "wrongfully retained," the courts generally are willing to send the child back so as to put things back the way they were. (5)
- If you intend to seek an ex parte order, you must prepare a detailed affidavit. The purpose of the affidavit is to provide the court with information that will support your claim and provide a sufficient basis for any relief that might be granted. In other words, your affidavit must convince the judge that your concerns and fears have a rational, reasonable basis, based upon threats or other conduct of your spouse and that what you want to do is to maintain the status quo.
- Specific items to include in the affidavit are:
- Your detailed affidavit should contain all relevant facts that demonstrate danger and harm to your child or you, or both.
- Your affidavit should start off by saying that if the court does not grant the relief requested you and your child will be irreparably harmed. Your affidavit also should contain the following:
- A brief history, such as who you are, your date of birth, and current residence; the name, date of birth, and current residence of your spouse; where and when you were married; the name, date, and place of birth of your child; and where your child has resided over the past twelve months.
- Some information about your marital relationship.
- All of the relevant facts, including all of your spouse's acts and words, including threats that demonstrate danger and harm to you or to your child, or both.
- Include the names of anyone who was present or overheard these threats or anyone who was present and anyone who saw the aftereffects of this conduct.
- Include any information that indicates that your spouse has relatives or friends in another country who either would provide funds to facilitate or personally assist in any kidnaping or wrongful retention.
- Allowance of your request will maintain the status quo.
- If you are proceeding with an ex parte or emergency hearing, be prepared to convince the judge that your concerns and fears have a rational reasonable basis based upon numerous threats or other conduct of your spouse.
- If you are seeking an ex parte or emergency order and you have time to get them, also give the court affidavits by relatives, friends, teachers, or others, plus copies of hospital records, police reports, and the like. This will give the judge additional opinions and documentary evidence that back up your affidavit and support your claims for relief.
- If you think that your spouse will not kidnap your child if he or she gets notice of the court hearing and there is no emergency or fear, then you do not have to seek an ex parte court order. Instead you just file your case in court and do what is necessary to get an Order of Notice or have a motion for temporary relief heard by a judge or court hearing officer.
- Additional information pertaining to hearings.
- Your affidavit, the additional affidavits, and the documents referenced above also should be prepared for any hearing, even those that are not ex parte or emergency.
- Court rules may require you to provide your spouse with copies of these documents when you give notice of the hearing.
- You may not need to use all of these other affidavits, but it is a good idea to have additional affidavits and reports that you can hold in your file folder just in case they are necessary. Then if the other side claims you are dangerous to your child or you are not a good parent, you can pull out the affidavit from your pediatrician, priest or other religious clergy, mental health worker, or school teacher attesting to the fact that you are a good parent and that your child is safe and well cared for and protected by you.
- Whether on an emergency basis or otherwise, you still want the court to grant you temporary or permanent sole legal custody, care and control, and sole physical possession.
1.Ask the court to use all of these underlined words. In some countries, one with "care and control" of the child has, for all practical purposes, the right to take the child to another country without the need to get permission of the other parent or from the court. On the other hand, in the United States there is no separate concept or definition of legal rights for someone who has "care and control" of a child. So a U.S. judge seeing those terms might think it simply means "physical possession." A U.S. judge might think that all you need is an order of "sole legal custody" or "sole physical possession" or "sole legal custody and physical possession." A U.S. judge might think that "care and control" are just extra words, but those extra words will mean a great deal to judges sitting in Australia and elsewhere in the world. We know that kidnappers can move easily from country to country. Therefore you should start off your case by trying to get the most inclusive court order available in order to give you as much worldwide protection as possible. Top | Back
2.The use of the word "irreparable" has specific meaning when used in this kind of case. The purpose and scope of this publication do not permit the space to explain all of the technical words. Therefore you should consult with a lawyer who is an expert in matrimonial law and who has experience in this kind of case. Top | Back
3.Each of these words has a technical meaning and application. This is a complicated area of the law so please do yourself and your child a favor. At the earliest possible moment, retain the services of a lawyer who is an expert in matrimonial law and who has experience in this kind of case. Top | Back