Question: My wife filed for divorce about 6 months ago and left the marital home.
I haven’t seen my son since and the court is dismissing the case due to lack of progress.
How should I regain custody before he turns 16 in two months? She also has an unserved restraining order if that makes a difference.
Without a court order governing each parent’s child custody and parenting time rights, each parent has equal rights to the child. At best, a parent who withholds her child, without justification, will look like the unreasonable spouse in court and, at worse, may commit a crime of parental kidnapping. However, an order may include a temporary order in a divorce case. If your case has not been dismissed, then any temporary orders still apply. If you did not have temporary orders, then you should have equally custodial rights with your son.
I gather from your question that you want “custody,” i.e. an order for custody. You will need to continue the divorce process or re-file for divorce if your case has been dismissed. It is important for you to act immediately to keep the case from being dismissed; otherwise, you may have to wait to file and/or pay another filing fee to start the divorce anew. To continue the process, make sure you filed an answer to her complaint with a counterclaim for divorce. If you did not file a counterclaim, file a motion with your judge before the anticipated date of dismissal and ask the judge to allow you to add a counterclaim for divorce. Also consider filing a motion to request custody or parenting time. You want your rights spelled out clearly in an order – that way, the threat of contempt faces your wife is she continues to withhold your son in violation of it.
Your likely success I cannot predict, as there may be a reason your wife does not return your son – Is there a history of domestic violence? Is she with family members? Is she the primary caregiver? Is she in an established home with him? Is your home the established home? All of these are issues to consider when rendering a custody decision, even though your wife stopped acting on the divorce, has not served her restraining order and may have violated a temporary order.
Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Colorado. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation, as most parties in child support cases do. Cordell & Cordell has many attorneys located in Colorado.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.