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Submitted by DakotaLegal on
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Submitted by DakotaLegal on
After checking on available legal help (which we’ll talk about in a minute), the first priority is to try and get papers filed for an emergency hearing. Here’s a link to using that form, which can be used in the court where you filed for divorce: http://www.depts. ttu.edu/sls/forms/What-to-Expect-in-Texas-Family-Law-Court.pdf. You can get a hearing within 24 hours that way. The urgency is that the longer the husband has your son, the more he will argue for keeping him there and of course using CPS to harm you. Your focus in this whole process has to be what the court will emphasize as “the best interests of the child.” You can also seek a contempt order from the court if your husband fails to return your child after getting an emergency order. If you can, have someone watch for signs your husband is leaving the area.
Since you said you have filed for divorce, the timing of the divorce petition is going to be somewhat important, too. Did you file the petition before your son was taken? This might mean that a court will be more likely to view the child custody arrangement at the time of the filing as the “stable home environment.” That home environment has already been established under the old separation agreement, and from what you said that is your home.
I’m also assuming you filed for divorce without having a lawyer helping. This isn’t uncommon, since divorce filings have become easier to do. Sadly, another thing that is also becoming too common is exactly what happened…before the court acts for a final custody decision, one parent takes the child and moves. Fortunately for you, your filing probably has kept the child from being moved across the Texas border to some other state. So as we’ve been discussing, try to get some affordable legal help…through Texas legal aid ( http://texaslawhelp.org/) or the Texas bar referral system http://www. texasbar.com/ AM/Template.cfm? Section=Can_t_Afford_a_Lawyer_.
Kidnapping?
You can’t actually “snatch” your child back, because you have a legal right to care for him. So it’s not too likely you’d be charged with kidnapping, since you and your husband both share some legal rights to the child (though from what you said, you have a superior right of legal custody, and he has only visitation). This is what the divorce is going to settle. The big problem is (a) taking your child back may harm the child, to be exposed to this kind of behavior and (b) you might be charged with assaulting your husband. If you do get him back, be sure to have a witness with you and don’t make physical contact with your husband.
It’s also worth noting that the law may consider all things roughly "equal" between parents (before a court issues a preliminary order in a divorce action) when it comes to having physical custody. But the police won’t. They won’t usually want to intervene and decide who has a superior right. But your separation order may be enough. I do wonder, though, that at the time the child was taken, if you filed a police report? You said specifically that he was “forcefully taken.” Here’s a link describing an assault in Texas: http://www.statutes. legis.state.tx.us/Docs /PE/htm/PE.22.htm. You have to decide about talking to the police and charging your husband. The “unknown” is that if your husband is arrested, what will the police and CPS do with your son?
The Role of CPS
While you shouldn’t be charged with kidnapping, the role of CPS can be an awful wildcard. They might move to declare both of you as parents are endangering the welfare of the child. I know how frustrating that can be, since CPS has very possibly already made the situation worse for your child.
I also suggest you try to work with a domestic abuse shelter. http://www.ncadv.org/files/ TEXAS.pdf. They can help identify any classes or steps you can take to undercut allegations of abuse against you. They may recommend you sign up for parenting classes…all of which will help bolster your case of being the right (safe) placement. Ask the domestic advocate about whether you need a restraining order against your husband, especially based on the way he took your son. Courts strongly condemn acts of violence, and especially so if it happens in front of a couple’s child.
Having either a lawyer, or an advocate from a domestic abuse shelter, contact CPS may help prevent your child from being placed in their foster care.
After checking on available legal help (which we’ll talk about in a minute), the first priority is to try and get papers filed for an emergency hearing. Here’s a link to using that form, which can be used in the court where you filed for divorce: http://www.depts. ttu.edu/sls/forms/What-to-Expect-in-Texas-Family-Law-Court.pdf. You can get a hearing within 24 hours that way. The urgency is that the longer the husband has your son, the more he will argue for keeping him there and of course using CPS to harm you. Your focus in this whole process has to be what the court will emphasize as “the best interests of the child.” You can also seek a contempt order from the court if your husband fails to return your child after getting an emergency order. If you can, have someone watch for signs your husband is leaving the area.
Since you said you have filed for divorce, the timing of the divorce petition is going to be somewhat important, too. Did you file the petition before your son was taken? This might mean that a court will be more likely to view the child custody arrangement at the time of the filing as the “stable home environment.” That home environment has already been established under the old separation agreement, and from what you said that is your home.
I’m also assuming you filed for divorce without having a lawyer helping. This isn’t uncommon, since divorce filings have become easier to do. Sadly, another thing that is also becoming too common is exactly what happened…before the court acts for a final custody decision, one parent takes the child and moves. Fortunately for you, your filing probably has kept the child from being moved across the Texas border to some other state. So as we’ve been discussing, try to get some affordable legal help…through Texas legal aid ( http://texaslawhelp.org/) or the Texas bar referral system http://www. texasbar.com/ AM/Template.cfm? Section=Can_t_Afford_a_Lawyer_.
Kidnapping?
You can’t actually “snatch” your child back, because you have a legal right to care for him. So it’s not too likely you’d be charged with kidnapping, since you and your husband both share some legal rights to the child (though from what you said, you have a superior right of legal custody, and he has only visitation). This is what the divorce is going to settle. The big problem is (a) taking your child back may harm the child, to be exposed to this kind of behavior and (b) you might be charged with assaulting your husband. If you do get him back, be sure to have a witness with you and don’t make physical contact with your husband.
It’s also worth noting that the law may consider all things roughly "equal" between parents (before a court issues a preliminary order in a divorce action) when it comes to having physical custody. But the police won’t. They won’t usually want to intervene and decide who has a superior right. But your separation order may be enough. I do wonder, though, that at the time the child was taken, if you filed a police report? You said specifically that he was “forcefully taken.” Here’s a link describing an assault in Texas: http://www.statutes. legis.state.tx.us/Docs /PE/htm/PE.22.htm. You have to decide about talking to the police and charging your husband. The “unknown” is that if your husband is arrested, what will the police and CPS do with your son?
The Role of CPS
While you shouldn’t be charged with kidnapping, the role of CPS can be an awful wildcard. They might move to declare both of you as parents are endangering the welfare of the child. I know how frustrating that can be, since CPS has very possibly already made the situation worse for your child.
I also suggest you try to work with a domestic abuse shelter. http://www.ncadv.org/files/ TEXAS.pdf. They can help identify any classes or steps you can take to undercut allegations of abuse against you. They may recommend you sign up for parenting classes…all of which will help bolster your case of being the right (safe) placement. Ask the domestic advocate about whether you need a restraining order against your husband, especially based on the way he took your son. Courts strongly condemn acts of violence, and especially so if it happens in front of a couple’s child.
Having either a lawyer, or an advocate from a domestic abuse shelter, contact CPS may help prevent your child from being placed in their foster care.