Ask a Divorce Lawyer: My ex gave up custody but now wants our daughter back. Can she do this?

Question: My ex gave up custody of my daughter three years ago and I have signed legal documents to prove this. I have always let me ex see my daughter, but now my daughter is 13 and my ex wants her back. So she hasn’t returned my daughter for the last four months though I have gotten to see her a couple times. 

I have no problem if my daughter wants to live there now, but I want my visitation rights not just visits when her mother feels like it. 

Can I still use the custody documents from three years ago to get my daughter back until visitation rights can be laid out and approved by the court?

 

Answer:

Each state has different laws governing custody and placement of children. I do not practice in your state so I can only speak in general terms.  You need to contact a domestic litigation attorney immediately to discuss how you can enforce the Custody Order.  Cordell & Cordell has many attorneys licensed and located in Colorado who would be able to assist you.

When you say you have custody, I am not sure if you mean legal custody, physical placement or both.  Often times, people confuse the two.  Legal custody refers to the parent’s legal right and responsibility to make decisions for a minor child pertaining to health, education, and religion. Physical custody, often referred to as placement, is the time that the child will spend with each parent.  If you have sole custody and she is making legal custody decisions on behalf of your daughter, then she is violating the Court Order.  If you have primary placement and she has failed to return your daughter to your care for over four months, she is violating the Court Order.

The most recent Court Order awarding you “custody” of your daughter is the Order that stands today.  You need to contact an attorney in Colorado to discuss your options for enforcement.   Most states allow the parties to file a Motion to Compel when a party is violating the court ordered placement schedule.  The procedure in your jurisdiction may also be a Motion for Contempt of Court.  When a party intentionally violates a Court Order, the Court can hold the person in Contempt of Court.  Punishments for contempt of Court can include a fine and/or jail time. 

You need to act fast as you need to address this before she files a motion for modification of placement/custody—call an attorney today!

 

Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

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