Client Scenario: My girlfriend and I have a five year old daughter, Kelly. We both raised Kelly for the first 4.5 years of her life. We lived in my parents house and even when we didn’t live together, we both raised Kelly. One day my ex-girlfriend said she was taking Kelly on vacation and she never came back. It’s been three months, what can I do? There is no official paperwork in place.
Answer: Without any custody or parenting plan in place, your ex-girlfriend hasn’t broken any laws. This is why if you are in a co-parenting situation and are unmarried it is highly advisable that you get some sort of custody/parenting arrangement officially filed. You don’t have to follow it exactly, but in the event one parent leaves with a child, the other parent has some protection.
The first thing you can do is to file for emergency temporary custody and ask that the court demand the child be returned to Arizona. It is very important to do this within the first 180 days after the child and parent have left the State, otherwise the other State will obtain jurisdiction and you may not be able to file in Arizona. There is absolutely no guarantee that this will be granted. In fact, in a recent case here in our office, the court denied the temporary order.
What happened next got very interesting. Remember that there was no custody plan in place, so no violations had occurred. A hearing to determine custody was set for four months later. In the next four months, mom failed to allow dad to contact his daughter. She failed to share information about their whereabouts, medical conditions, etc.
Our Attorney Allyson Del Vecchio argued that Father had demonstrated a greater level of cooperative and responsibility, and that he was acting in Kelly’s best interest. Ultimately, it was mom’s refusal to share information that resulted in the court awarding custody to the Father. Mom hadn’t broken any laws or failed to comply with any orders, but her lack of communication with Father lead to a custody award to Father and the child’s return to the state.
The moral of the story: just because you can do something, doesn’t mean you should. Unless there are extreme and unusual circumstances treat the other parent of your child with dignity and respect. Share information, encourage visits and contact. Otherwise, you may face losing custody to the more cooperative parent.