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
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
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.