Last week's column outlined what to do if your "ex" doesn't return your children at the time identified in your court order. In many cases, these delays are neither intentional nor malicious, but the product of poor time management. However, some ex-mates remain angry long after the divorce, venting their displeasure at every opportunity, and the weekly "hand-off" is an easy venue for making your life miserable.
As pointed out last week, you have a remedy if your "ex" willfully violates the schedule in your court order. Take your case to the police. It is a felony violation of Section 565.156 of the Missouri Revised Statues punishable by up to four years in the pokey.
Involving the police usually solves the problem, if the police will intervene on your behalf. Sometimes, though, they are reluctant to step into what they see as a squabble between private parties, not realizing that their reluctance emboldens the recalcitrant spouse to push the envelope further. Just recently, a mother asked me what she should do about her former spouse who hasn't returned her children since Christmas...almost four months earlier! She has gone to the police, but they refused to get involved, saying it was a "private matter".
"The police have a legal duty to investigate a crime", says Rob Livergood, Assistant Prosecuting Attorney for St. Louis County, but the police also "have the discretion to decide if a crime has been committed". If the first officer, after reviewing your court-ordered schedule, refuses to get involved, here is how to proceed:
1. Immediately ask for a supervisor and take your case up the chain of command, all the way to the chief if necessary. Make sure they know that there is good reason to believe that a crime (child abduction by a parent) has occurred because the abduction was intentional, it was without good cause, and it is in violation of a valid court order. Communicate these three elements and, then, it seems to me that you have reported a crime that the police "have a duty to investigate". If the police still won't respond, ask for a police report recording that you made the complaint, but be prepared that they may say "it's not ready yet."
2. Then, go to the Prosecuting Attorney in the county where the divorce was granted. Ask that they issue a felony warrant for your "ex" for child abduction by a parent. Bring your court-ordered schedule, and the police report of your complaint, assuming you received one. In all likelihood, the prosecutor will respond with a warrant directing that your "ex" be arrested. But, if not...
3. You will need to retain an attorney who should file a writ of "habeas corpus" (Latin for "produce the body") in the county where the divorce was granted. It will be served to your former spouse and direct him/her to deliver the children by a specific deadline. If that doesn't occur, take the writ to the police where your "ex" resides and they are required to enforce the writ and recover your children.
In addition, your lawyer should file a "contempt motion" with the Family Court for failure to comply with the court-ordered schedule. If your "ex" is found to be "in contempt", the penalty is jail time until the children are returned, plus paying your legal fees.
As prosecutor Livergood says, most problems are resolved with the first visit to the police, but it's nice to know you have options for dealing with an ex-mate that persistently brings your kids back late just to be difficult.
Cynthia M. Fox is a Missouri attorney and mediator located in Clayton, MO. Her web site is www.foxfamilylawyers.com She has pioneered a new approach to divorce called The ConstructiveDivorce