My spouse took my children! What can I do now?

missing child

So often our law firm gets panicked phone calls from clients telling us that their spouse took the children and want to know what can be done. It is an unfortunate reality of many relationships ending in divorce that the children become the victims of the breakup. Some parents in Idaho will resort to taking the children in hopes of getting, what they perceive, is an advantageous legal position before filing for a divorce, planning to later argue in court that it would be in the best interest of the children to let them remain where they now reside in the name of promoting stability in the lives of the children. Consequently, it is important to act quickly if the other parent takes your children.

In cases like this we advise our clients to file motions for a Temporary Restraining Order and a Preliminary Injunction prohibiting the other parent from exercising custody over the children. Temporary Restraining Orders can be obtained very quickly and without a hearing or notice to the other parent. However, before a judge will issue a Temporary Restraining Order there must be a showing of irreparable harm to the children if the other parent continues to exercise custody. This usually involves showing evidence of abuse, neglect or serious disruption in the lives of children in the event the other parent continues to exercise custody.

In Idaho, Temporary Custody Orders are often the best way to avoid a lot of needless and harmful drama. If the parents cannot come to a custody agreement before the divorce is finalized, and it cannot be shown that irreparable harm will result, the usual recourse is to file a motion for a Temporary Custody Order. The Temporary Custody Order will issue after a hearing where both parties will be able to argue their positions.  The Temporary Custody Order will provide the custody arrangements in the interim period before the divorce is finalized.

A parent who takes a child and withholds the child from a parent who has a legal custody of the child, risks being charged with Custodial Interference (known as Parental Kidnapping in some jurisdictions), under Idaho Code 18-4506. If the parent takes the child out of the State of Idaho, or otherwise harms the child, the parent could be charged with a felony. If the parent remains in the State of Idaho and returns the child unharmed prior to being arrested, then the parent will be charged with a misdemeanor. It is of course a defense to Custodial Interference that the parent was protecting the child.

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