Colorado Custody and the Taking of a Child

April 20, 2011

While relaxing one Sunday morning,reading the paper, I came across a brief article in the second section regarding a story in which a mother and her boyfriend had taken her children and fled east, I believe to Kansas or Oklahoma. At the end of the Denver Post article, it indicated that the mother and her boyfriend were in custody. This got me thinking about the various situations I have seen over the years in which one parent or the other flees the state of Colorado, whether to another state or country, and what we have had to do to get the child back. Though these situations are not common, they do pop up from time to time in our divorce or custody cases.

Firstly, those pondering the foolish notion of leaving the state with their child should know a couple of things. If there are no custody orders in place or there is not a pending divorce or custody case, you are not breaking the law in any way should you leave the state with your child. If there are orders in place, you have a problem. Fleeing the state with your child when there are orders in place which you are violating can lead to contempt of court proceedings, felony criminal charges (yes, there is actually a criminal statute regarding "violation of a custody order"), and potentially the ultimate loss of meaningful time with your child. If you leave in a legal manner, you still may be forced to bring the child back if a custody case is filed in Colorado within 6 months of your leaving.

If your ex leaves the state in violation of a custody order, or leaves without permission, there are various things you can do. If there are custody orders in place, you should immediately contact law enforcement. If you know your ex has fled the state with the child, the FBI may be willing to get involved, as the crossing of state lines may invoke federal jurisdiction.

Beyond contacting law enforcement, you should, whether on your own, or preferably with the assistance of an attorney who knows what he or she is doing, put together an emergency motion to be filed with the court, seeking an immediate order for possession of the child and a writ of assistance, or "pick-up order," which directs law enforcement to take custody of the child upon contact. Once an order is obtained, you are then left to deal with the state in which the child and ex are located. In most situations, you will need to get your Colorado custody order certified through a court in the other state. At that point, the police in the other state, though generally not immeidately enforcing a Colorado custody order, will likely be willing to help enforce an order to get the child which has been domesticated in that state. In some instances, if you are lucky, law enforcement in the other state might assist you without registering your order there.

Of course one big factor is knowing where the child is. Additionally, if you are forced to seek relief in another state, you should plan on being out there when law enforcement executes the writ of assistance. If you are not there, where will your child be placed, foster care? This is certainly not optimal.

If there are no custody orders in place and a case has not been started, you may still seek relief, assuming your child and ex have not been gone from Colorado for more than 6 months. Once a case is filed and the other party is served, there is an injunction in place prohibiting either party from leaving the state with the child without permission from you or a court order. Thus, there are instances in which lack of an order does not put a stop to your efforts to get the child back. Violation of this injunction can be serious, just as a violation of a custody order.

Beyond interstate issues, there are instances in which one parent flees to another country with a child. In these instances, the steps can be much more difficult. When dealing with getting a child back internationally, the first point of reference for you or your attorney will be contacting the US State Department. Many nations of the world are signatories to the Hague Convention, which is, in essence, an international agreement or treaty. One aspect of the Hague Convention relates to dealing with international custody and getting children back. Unfortunately, not all countries are Hague Convention members, for instance Japan. Whether Hague members or not, some countries are also lawless or in a state of chaos. The State Department will know what countries are or are not members. If your child is located in a non-Hague country, the State Department may still be willing to assist.

Remember, too, that international travel requires a passport. As such, fleeing the country with a child is not as easy as one might think.

As with interstate cases, knowing where you child is with specificity is vital. Sometimes, the greatest tool can be good insight, intuition, and investigation. Luck and timing can also play a big part. The reality is that getting your child back from another state or country can be a difficult, emotional process, laden with technicalities and twists and turns. There are remedies out there to assist you, and the hope is that the law works with you to ensure the safe return of your little one. The bigger hope is that you never end up in such a situation.