Procedures in Child Custody Disputes When a Parent Doesn't Return the Child

By Susie Kim-Carberry

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Family courts in the U.S. use the right of child custody to determine time-sharing arrangements between divorced or separated parents. Parents must adhere to court-decreed time-sharing during child custody cases even if they are in conflict on other issues. When a parent intentionally doesn't return the child, although a child abduction is rare, the other parent must proactively take action.

Custodial Interference

In most custody arrangements, a judge will order shared custody for minor children when the parents separate or divorce. This means that both parents have a right to have full information about the children and will share in making major decisions about them. The family court will also decide on the child's physical custody, establishing his primary residence. Custodial interference occurs when a parent interferes with the rightful parent's physical custody by not returning the child. In most states, the courts consider taking a child from his parent with the intent to interfere with that parent's physical custody of the child, even if the that parent also has custody rights, as a crime that is punishable by jail time, according to Myfamilylaw.com.

Read More: How to File for Interference With Child Custody

Legal Actions a Parent Can Take

If a parent refuses to return the child to the parent who has physical custody, the non-violating parent can choose from several paths of legal action. She can go to the police with the court order that shows visitation schedule as well as information where the police can locate the other parent. The custodial parent can also file an "Order to Show Cause" in court to the offending parent. While statutes vary state to state, most family courts consider custodial interference a criminal act and can impose and enforce a variety of sanctions. This can range from make-up time to a full change of primary residential custody.

Custodial Interference Defenses

The needs of children change as they grow older, and occasionally the wishes of the child take precedent over child custody agreements. Typically when a child is 14 years or older, the court may waive the custodial interference charge if the child wishes to remain with the noncustodial parent and did not return to the primary residence on his own accord. In other special circumstances, the family court will waive the custodial interference charge: Imminent danger to the child, mutual consent and child safety concerns are typical defenses that noncustodial parent can invoke in the family court.

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