Ask a Divorce Lawyer: My wife took my kids out of state to live in a homeless shelter while we’re separated. Can I get my kids back?

Question: My wife and I have been separated since 2005, but we have not gotten a legal divorce yet. I have been child support since the time we separated, except for a few months in 2009 when I was unemployed. 

She spoke with my mother yesterday and said her and my son and daughter were living in a homeless shelter in another state. I’m worried about how long they’ve been there and if my kids are going to school and being properly cared for. 

What can I do about them being in a shelter?

 

Answer:

That depends on whether you have a pending case in court. It is unclear to me that you do. You indicate you have paid child support since your separation in 2005, but you may have paid it informally or formally, as court-ordered support.

If you do not have a pending case, you will have to address your wife with your concerns. Until you have a case, a court cannot enforce your rights as a father. Family counseling may be beneficial.

If you file for a divorce to start a case, accompany your complaint with a motion for temporary physical custody of your children. The procedures for these motions vary by jurisdiction, so be sure to contact an attorney in your jurisdiction for assistance.

If you already have a pending case, then you might try the following:

 

Informal Court Enforcement: Research the resources in your area for parenting time and custody enforcement. Many states do not require a motion before a judge to enforce court orders. Other resources, such as parenting time monitors, counselors, and custody mediators, exist. In Michigan, for example, parents who have missed visitation with their children may file a complaint to request make up time within 56 days of the missed visit. A parenting time counselor will review the complaint and issue an opinion in writing to both parents within 21 days. You should consult with a lawyer to learn about the resources available to you.

Contempt: If your wife has failed to keep you advised of your children’s whereabouts, their health and their schooling, as you suggest she has, consider filing a motion to have your judge hold her in contempt. Most parents retain legal custody rights during the divorce. Legal custody rights are the rights to be kept informed of and to participate in your children’s important life decisions, such as medical and schooling decisions. The judge will order her to keep you informed and/or punish her with fines and attorney fees for not. You will also create a record of your denied rights in the event you need to modify your current order later. The procedures for these motions vary by jurisdiction, so be sure to consult an attorney in your jurisdiction for details.

Motion to Modify: Consider filing a motion to modify physical custody or parenting time. The standards vary by state. In general, your unhappiness with the order is not enough; you must show a proper cause or change in circumstances since the last order to justify the change. That your children are homeless and out of school, as you suggest, are probably proper causes or changes in circumstances. Some states require a higher burden if you are not a joint physical custodian. These motions generally require more time, in and out of court, than the resources mentioned above and thorough preparation. The long-term benefits could be worth the effort, however. You must have an attorney’s assistance for this motion. Do not pinch pennies here. You need a realistic viewpoint of your case if you are going to invest time and money in this motion.

Document. Be sure to document all of your concerns and any interactions you have with your wife and your children. This is somewhat therapeutic, and it will also refresh your memory when discussing your case with an attorney and if you need to testify in the future. Be precise and professional, and avoid any nasty naming calling – writings from you may be admissible in court as substantive evidence or for impeachment.

 

Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Florida. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately for additional information. Cordell & Cordell, P.C. does have offices in Florida, and we will be happy to discuss your case in detail.

 

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.

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2 comments on “Ask a Divorce Lawyer: My wife took my kids out of state to live in a homeless shelter while we’re separated. Can I get my kids back?

    I just told my husband that I would like a divorce. Yesterday I came home to find a note saying he left the state. My situation isn’t as severe as yours, but I worry about my children’s health and education. Because I know that he isn’t going to be able to tend their needs.

    i filled for a divorce and my wife has taken of with our infant what do i do to get him back home is there some kind of motion in divorce court i can file

    Answer from Cordell & Cordell attorney Jennifer Paine:

    If you file for a divorce to start a case, accompany your complaint with a motion for temporary physical custody of your children. The procedures for these motions vary by jurisdiction, so be sure to contact an attorney in your jurisdiction for assistance.

    If you already have a pending case, then you might try the following:

    Informal Court Enforcement: Research the resources in your area for parenting time and custody enforcement. Many states do not require a motion before a judge to enforce court orders. Other resources, such as parenting time monitors, counselors, and custody mediators, exist. In Michigan, for example, parents who have missed visitation with their children may file a complaint to request make up time within 56 days of the missed visit. A parenting time counselor will review the complaint and issue an opinion in writing to both parents within 21 days. You should consult with a lawyer to learn about the resources available to you.

    Contempt: If your wife has failed to keep you advised of your children’s whereabouts, their health and their schooling, consider filing a motion to have your judge hold her in contempt. Most parents retain legal custody rights during the divorce. Legal custody rights are the rights to be kept informed of and to participate in your children’s important life decisions, such as medical and schooling decisions. The judge will order her to keep you informed and/or punish her with fines and attorney fees for not. You will also create a record of your denied rights in the event you need to modify your current order later. The procedures for these motions vary by jurisdiction, so be sure to consult an attorney in your jurisdiction for details.

    Motion to Modify: Consider filing a motion to modify physical custody or parenting time. The standards vary by state. In general, your unhappiness with the order is not enough; you must show a proper cause or change in circumstances since the last order to justify the change. Some states require a higher burden if you are not a joint physical custodian. These motions generally require more time, in and out of court, than the resources mentioned above and thorough preparation. The long-term benefits could be worth the effort, however. You must have an attorney’s assistance for this motion. Do not pinch pennies here. You need a realistic viewpoint of your case if you are going to invest time and money in this motion.

    Document. Be sure to document all of your concerns and any interactions you have with your wife and your children. This is somewhat therapeutic, and it will also refresh your memory when discussing your case with an attorney and if you need to testify in the future. Be precise and professional, and avoid any nasty naming calling – writings from you may be admissible in court as substantive evidence or for impeachment.

    Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in your state. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately for additional information.

    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.

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