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I ALLOWED THE OTHER PARENT TO TAKE OUR CHILD WHEN I SHOULD NOT HAVE

Posted by Gordon Shayne | Oct 05, 2020 | 0 Comments

Over many years I have been asked as a Family Law Attorney, “I allowed the other parent to take our child when I should not have, now what do I do?” This kind of situation arises when a parent may think that he or she is doing the right thing in allowing the other parent to have contact with the child and is being a ‘good parent' by doing so.  How should a parent react to this if the other parent is not a ‘safe' parent. This mistake in judgment in letting the other parent have the child is usually compounded when the other parent refuses to return the child or takes the child out of the state and now the intention of a ‘good deed' becomes quite a mess! Most judges recognize the urgency in protecting children in these kinds of situations.

It is assumed that any person would act as a ‘good parent' because our basic human nature dictates this to be so.  BUT just because someone is a ‘parent' does not mean that they are inherently a safe, level-headed person.  Good/Safe/Balanced parenting begins when decisions are made that are consistent with protecting children from known harm or danger. These types of judgements require more than simply common sense. For example, we expect that a parent will know it is necessary to put child safety locks on kitchen doors, use child safety seats in vehicles and place poisons and other household chemicals out of the reach of young children. However, not all parents ‘know' these types of situations could present potential harm.  There are thousands of examples of the ways that parents must always safeguard their children from harmful or dangerous situations, including who they expose their children to. 

The #1 rule is to obtain a Court Order that describes all parenting time!

It is always best to obtain a Court Order which will specifically define each Parties' parenting time when the Parties are co-parenting and working well together.  It becomes far more difficult, and time intensive, when parents have parenting disputes, or a parent can not demonstrate that parenting can be conducted in a safe or healthy manner.

Parents who have not obtained Court Orders to define parenting time and the responsibilities that each parent must assume will often inadvertently put their children at risk of harm, especially if the other parent is known to be unsafe has shown a lack of properly supervising the child(ren).  

We see examples of this when a drug or alcohol dependent parent goes to the child's daycare, removes the child and takes the child home with them and refuses to return the child to the other parent. There are countless cases that we have worked on, whereby the child is exposed to endangerment because neither parent obtained a Court Order that spells out the terms and conditions of visitation and parental responsibilities. Casting blame about the other parent is not what interests the Court. The Court is interested to know what kinds of actions threaten children's safety and how parents are responsible for not endangering their children.

Under the law, when a parent exposes a child to an environment that endangers a child's physical health or significantly impairs the child's emotional development, and these facts are proven to a judge, it is for the purpose of having the court consider whether such parenting contacts need to be, “supervised.” So situations require that a parent or party immediately file an action with the court so that the unsafe parent is made to follow the orders of the court. Here is a basic list of the kinds of threats to the safety of children that the law seeks to address when considering parenting:

  • Untreated/Un-Medicated Mental Illness or Emotional Health problems.
  • Alcohol or Drug Dependency Addictions.
  • Anger Management.
  • Domestic Violence or Abuse.
  • Sexual Perpetrator or Arrests or Convictions of Crimes of Violence.

Since a parent's first obligation to their children is to protect them from harm, it is never a good idea to allow the other parent to exercise parenting time when there is a known safety issue. Instead, the correct action is to obtain the proper legal advice and obtain a Court Order to ensure that the children are to be protected from all such known threats. A parent wo knowingly allows their child(ren) to be exposed to endangerment from the other parent, is NOT a good strategy.  The Court will want to know why the parent who claims to be ‘of sound mind' would allow the other parent, who is accused of being unsafe, to have parenting time alone with the child(ren). Good judgement to protect children's safety is always a consideration.

When certain risk factors are identified, those factors must be addressed before parenting time orders can be implemented. As an example, when a client has told me that the other parent is violent and has committed Domestic Violence, we can take immediate precautions necessary to protect the children. In the Court proceeding, the parent who has committed Domestic Violence can be shown to have exhibited “anger” and used violence as a way to act out towards the other parent. It is of great concern to the Courts that children are impacted when a parent is a Domestic Violence perpetrator. It may not matter to the Court whether a child was at home when the violence occurred. Making an immediate police report when a domestic violence act has occurred is vital.  Also, obtaining an Injunction may be the best way to ensure that the ‘safe' parent is using all remedies available to protect themselves and their children.

Recently, I was hired to represent a young mother who did not have any child custody orders with the other parent. She told me that she and the father were just trying to get along and she did not want to create any friction with the other parent. She also said that both parties agreed that they did not want to have a Judge interfere with their lives. Their parenting schedule lasted only until one parent got upset about something and took the child from school and left the state refusing to allow the other parent to see the child or have any contact. It would have been far better for my client to have been proactive in getting orders entered that would have protected the child in this situation when the Parties were calmly co-parenting.

The best way to protect yourself in these kinds of cases may be to file a legal action with the Court and to not allow parenting unless it conducted in a safe manner with proper guidance from an experienced lawyer. If you know or reasonably suspect that the other parent presents a danger to your child, you must do all you can to avoid placing your child at risk. 

All parenting agreements must be in writing and signed by the Parties. The more specific the language is in such an agreement, the better. Remember, most police agencies will not intervene in parenting or custody disputes because such conflicts are deemed, “civil matters, not criminal matters.” 

Communication is another big factor facing parents in their child custody case. Open, honest and thorough lines of communication regarding parenting time is the best way for both parents to feel good about time sharing, even under the most stressful circumstances. Judges, often times, applaud parents who can effectively communicate about their children, parenting time schedules and the manner in which they are working together to see to it that their children are raised in safe, loving environments. Texting and emails between parents about such parenting is always a good idea.

The best course of action you can take as a parent who knows that the other parent is not to be trusted or has demonstrated that he or she cannot parent a child safely, is to immediately obtain proper legal advice so that a Court action can be filed which ultimately will lead to the protection of your child in a meaningful manner. 

If you are a parent who knows that the other parent has committed an act of violence or who has a history of drug or alcohol abuse and is not capable of safely parenting a child, these circumstances and relevant facts may be presented to a Court. As in hundreds of custody cases that I have handled, when a parent places a child in, “imminent harm” by exposing the child to possible or injury or death, an emergency motion may be the best option to protect children from known endangerment. To act too late is neither an excuse nor a good basis to fail to act when it comes to protecting an innocent child.

About the Author

Gordon Shayne

Gordon N. Shayne Family Law/Divorce Lawyer Phone: (904) 544-6855 Gordon N. Shayne's field of practice is devoted to Family Law/Divorce case throughout the State of Colorado.

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ABOUT GORDON N. SHAYNE

With over 35 years of experience, Mr. Shayne has had a legal career fighting for the rights of his clients while focusing his practice exclusively on Divorce, Child Custody and other Family Law Matters. Our services are available throughout the State of Florida.

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