Concerned parents often come to us when they don’t know what to do and they believe the primary physical custodian is putting the child in harm’s way. Sometimes noncustodial parents immediately take action and decide not to return the child to the primary physical custodian despite the Parenting Plan in place. While this may be the knee jerk reaction a noncustodial parent considers when hearing what is going on at the primary physical custodian’s house, withholding the child is probably not the best course of action without a court order allowing the noncustodial parent to do so. A change in custody cannot be made without an order of the Court. If you are the parent with visitation rights and do not have primary physical custody of the child, refusing to return the child to the other parent is in violation of the Court’s Order.
In some instances, the primary physical custodian may not fight back. In those rare cases, the noncustodial parent still has to have a Court order for the modification of custody. Without the Court modifying its order and changing custody, the noncustodial parent is violating the custody order by unilaterally designating him or herself as the primary physical custodian and can be held in contempt. The noncustodial parent is also most likely ordered to pay child support to the primary physical custodian who is now no longer with the child for the majority of the time. The noncustodial parent should modify child support as well as custody and visitation so that the orders accurately reflect the change in custody.
In most cases where a noncustodial parent refuses to return the child, the primary physical custodian will file for emergency relief from the Court. The primary physical custodian has to show that there is an order in place requiring the noncustodial parent to return the child and that the noncustodial parent is refusing to comply with the order. The noncustodial parent can be held in contempt and order to return the child if the emergency modification of custody is not warranted.
Where the noncustodial parent believes the child is in danger and that an emergency modification of custody is in the best interests of the child, the noncustodial parent should file a Petition for Modification of Custody, Visitation and Child Support and a Motion for an Emergency Hearing on the Petition for Modification. Where the noncustodial parent is asking the Court to intervene on an emergency basis, judges expect that a true emergency exists (i.e., the child’s safety is being threatened, life or death scenarios, the child will be harmed if he or she remains in the primary physical custodian’s care). When asking for an emergency modification of custody, the noncustodial parent should be prepared to show that the child is in immediate danger. An emergency modification of custody should not be requested unless a true emergency exists. These cases are treated very seriously by the Court and without the requisite evidence that the child is in danger, the Court will not grant the request for the hearing or the request for modification of custody.
The moral to the story is proceed with caution and seek the Court’s blessing. Only with this approach are you likely to wind up with a better scenario than the one you are faced with, rather than a worse one.