What to Do If Your Ex-Spouse Took Your Child Out of State

By Jeremy T. Simons, Esq.

In any given week, I rotate my column topic between contract/business issues and family law issues. I have noticed that in my contract and business articles, I often provide information that could be called "preventive" in nature. In other words, I write about how to recover bad checkswithout going to court, what to consider when reading contracts, and how to set up a business to avoid liability.

My family law articles routinely are "reactive" in nature. I talk about how to deal with normally unimaginable situations such as domestic violence, changes in custody, relocation with children, and so forth.  After reflection, I have decided that the reason is because in family law cases, normally reasonable people engage in some incredibly unreasonable and irrational acts. I guess the classic Hume statement is ever present in family law: "Reason is the slave of emotion."

An unfortunate situation I deal with more times than I thought possible is when one parent lives out of state and refuses to return the child to Florida. Let us assume the following facts: You have primary time-sharing of your child and the court order reflecting this was entered into by a judge in Florida. Your ex-spouse lives out of state.  Your child went to spend the summer with your ex-spouse, and a few days before your child was to return to Florida, your ex-spouse said he or she is now refusing to return the child and will fight for custody in his or her state. We must also assume there is not a legally valid justification for your ex-spouse to not return the child.

First thing you can do is thank your ex-spouse profusely for immediately creating a legal nightmare that will probably require you to hire a team of attorneys.  

To set the legal framework, family law and domestic relations are typically governed by each individual state. Additionally, your Florida judge's jurisdiction only extends to the Florida state line. In other words, a Florida judge cannot make the police or courts in another court act or not act. 

However, almost every state has enacted a statute titled the Uniform Child Custody Jurisdiction Enforcement Act("UCCJEA"). The provisions and applications of the act are complicated because there are exceptions to every rule, but essentially it attempts to assist you in our scenario by preventing the ex-spouse's state from taking jurisdiction until the child has resided in the "foreign" state for at least six months. 

There is also a federal law called the Parental Kidnapping Prevention Act designed to assist you. This federal statute is supposed to obligate local law enforcement to enforce valid child custody orders. 

(For international kidnappings, which is far beyond the scope of this article, start here.)

I have dealt with our scenario in the following states: Texas, Arizona, Colorado, New York, and Michigan. Each state seemed to handle our scenario radically different. I found Arizona ready, willing, and able to enforce a Florida Court order very quickly and without court intervention. Texas, on the other hand, provided me with severe difficulty and refused to honor my Florida court order without involving the Texas courts in a lengthy process. This is not a reflection on these states, but only what happened in my individual cases. I cannot say that Arizona or Texas treat all cases the same.

What You Can Do

Of course, if it were as easy as picking up the phone and calling the local police in your ex-spouse's city, an attorney would not write an entire article on this area of law. However, that should be your first course of action. Your phone call certainly cannot hurt your situation. 

If your courtesy call is unsuccessful, you need to contact your trusted family law attorney immediately. Please do not try to litigate something like this on your own. Your local Florida attorney will likely file for emergency relief in Florida. 

The second step is to retain an attorney in the city where the ex-spouse lives. That attorney, in accordance with the foreign state law, will most likely "domesticate" your court order in the foreign state and seek a court order requiring the police to pick up your child and return the child to you. 

Once the child is back, you can seek assistance from Florida courts and ask that the ex-spouse do the following, which is not a full list of remedies:

1. Only spend time with your child within Florida; or
2. Post a bond so if he or she does this again, you have access to funds to pay an attorney and travel to the foreign state; or
3. Reimburse you for the attorneys fees and expenses you have already paid; or
4. Suspend time-sharing or require supervised time-sharing.

The most stressful part of our scenario is that usually your trusted Florida attorney is unfamiliar with the foreign state laws and procedures, so you and your Florida attorney rely heavily on the attorney and courts in an unknown and unfamiliar state. 

Rest assured that if your ex-spouse has engaged in this unimaginable and irrational act without justification, the laws are designed to assist you. However, you will need to have some patience and a rational approach to reach the positive resolution. 

For more information on these matters, please call our office at 305 548 5020.

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