My ex wife takes kids to another country and will not bring them back
Recently on our legal forum a user asked, “What are my legal rights if my ex-wife has taken our children to Chile for summer vacation but now that the vacation has ended is refusing to return with the children to the United States? Is this a criminal action, and if so, can she be charged with a crime? More importantly, however, I really just want my kids back.”
Ex-Spouse violates child custody order
The state recognizes that it’s generally in best interest of a child if both parents are involved in their life. With this in mind, following divorce the court will generally award some type of joint legal and potentially physical custody to both parents unless one is deemed an unfit parent.
A violation of the child custody order by one parent, although it may not be legally defined as “parental kidnapping” in your state’s legal statutes, may in fact be what it is. Given the information you provided it sounds like your ex-spouse not only took your child on a vacation abroad, but now that the vacation has ended has refused to return them and has decided to permanently reside in Chile.
So what proof do you need to prove that your ex-wife has kidnapped your child? You will need to prove that there was a court order regarding custody of your child, she has violated the legal status of the order, and she intends to remain in Chile indefinitely and conceal your children from you.
Is it illegal for a parent to take a child on a vacation?
Parents generally have the right to vacation with their children. For example, this would have been a different issue, for example, if she simply took the kids to Chile for a few weeks while they were legally in her custody per the custodial agreement. Although this might have been annoying to you, if she had legal access to the child per the agreement she could exercise full authority over them, including taking them on an extended vacation, with or without your consent. A parent with legal custody of their child pursuant to a court order cannot usually be charged with parental kidnapping.
Issues arise, however, when her actions violate the custody order- she keeps the children when it is your turn to have them- and she continues to conceal them or refuses to return home. It’s also important to note that she can be charged with a crime even if she is not holding them by force or threatening them in any way.
What legal options to you have to get your child back?
So what are your legal options at this point? If your spouse’s actions do not rise to the level of kidnapping but she is consistently interfering with the custodial arrangement, she may be charged with custodial interference. Penalties for this action can include the following:
- Fines or jail time imposed by the court
- Reimbursement of attorney’s fees and other costs incurred by the target parent
- Modification to the custodial agreement that specifies child-exchange locations and times
- Make-up parenting time for the targeted parent
- Mediation by both parties
- Family therapy
- Supervised visits only for the offending parent
If your child is kept and concealed in a foreign country and your ex intends to indefinitely conceal them from you, however, her actions have likely risen to kidnapping. Although law enforcement officers generally try not to interfere in custodial disputes, they will act if there are kidnapping or domestic abuse charges.
In this case you will need to contact the local police, but it is likely that the FBI may at some point become involved with your case. You are also free to talk to a private investigator who may be able to find out more information about the location of your children.
What do I do when they are located and returned to me?
When your children are returned to you, you need to talk to a family law attorney to determine whether you need to contact the court and request a temporary or permanent elimination of your ex-wife’s rights to custody of your children.
Unfortunately, international parental abduction cases can be the most difficult to resolve, especially if your ex-spouse has fled to a country which is not willing to work with the United States. Your first step is to discuss your case with a lawyer who specializes in international custody disputes.
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