My children went to visit my ex-wife for an extended period of time and now she is refusing to return them saying they told her they want to live with her.
What are my rights as the custodial parent to have my children returned from a visitation that essentially turned into a kidnapping? How can I get my kids back?
If your ex is denying you visitation with your children as awarded in the decree, she is in violation of a court order and may be held in contempt, regardless of the reason why. She can claim that your child expressed a desire to stay with her, but ultimately it’s her responsibility to ensure that the children are where the need to be, when they’re supposed to be there.
You might consider seeking a contempt citation against her for violation of the orders of the court. In a contempt proceeding you can be awarded make-up time with your child for the time you’ve lost, as well as your attorney fees and costs in pursuing the contempt application.
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Be mindful however if you choose to pursue this option as you may inadvertently kick off a modification proceeding. Certain aspects of a divorce decree, specifically child custody, visitation, and child support, can be modified later based on an allegation of a permanent and substantial change in circumstances and by showing that a modification would be in child’s best interests.
By filing for contempt, you may force your ex’s hand in seeking a modification of visitation based on her claim that your child prefers to stay with her. Should your ex be successful in modifying the terms of your decree to allow your child to stay with her the amount of child support paid in your case would likely be affected as well.
Regardless of how you choose to proceed, I’d strongly recommend you seek the advice and counsel of an experienced divorce lawyer for men as you weigh your options.