Do I have to return my daughter is there is no custody order in effect and we are not divorced?

05/01/2009 - Category:Divorce - Child Custody - State: WI #16518

Full Question:

I caught my wife in an emotional affair two weeks ago. She ended up moving out to her mom's house which is over an hour away. My daughter had been staying there the weekend I found out since I had drills for the National Guard and my wife had to work that weekend. After I found out all the details I was willing to work things out between us more for the reason our three year old daughter was hurting and confused by the situation. Now since that she left she is using the excuse that people move. I understand that people move but my daughter's life for the last two years has been here in the town we live in. I don't believe it's fair to take her away from her life due to my wife's actions. I have given her so many chances to spend time with me and my daughter so she can see that we can get along. More less I feel that would be a good coping mechanism for my daughter right now but she always has excuses. I currently have my daughter to Monday. It took me hours trying to convince her that I have rights to my daughter just like my wife does. I am hurting here for my daughter. I don't want to give her back now because I feel that her life is here. She should not be punished for her choices. Any suggestions? Do I have to give her back? We currently do not have any custody order in effect.


State laws provide that biological parents make all the decisions involving their children, including education, health care, and religious upbringing. Parents are not required to secure the legal right to make these decisions if they are married and are listed on the child's birth certificate. However, if there is disagreement about who has the right to make these decisions courts can decide. Custody issues between estranged spouses are typically determined in the terms of the separation agreement or custody order if there is a divorce action. In some cases, an interference of custody charge may be brought when the person tries to prevent visitation.

How courts decide a parent's decision to move after a custody order is in effect may be of some guidance. Typically, at the time of the divorce, both parents are living in the same town. But it happens sometimes that at some point after the divorce, one parent wants to move away. Often this is because of a job offer. Other times, the party simply wants to return to his or her family. The issue then becomes: can the parent who is staying behind prevent the other party from moving?

If it is the parent who does not have physical custody, there is no issue. That parent may move. Often, visiting arrangements have to be changed, to allow for fewer, but longer, blocks of time. Typically, children visit spouses in other states during winter break and for part of the summer.

Generally, a parent with physical custody may relocate with a child if not prevented by a court order and it is not done with the intent to deprive the other parent of access to the child. However, if the parent who has physical custody wants to move, and the other parent protests, the courts in most states have the authority to decide, on behalf of the children, whether the custodial parent may move.

The courts typically consider the following factors:

- Whether the move will improve the child's school or community.
- Whether the parent's motive was to harm the non-custodial parent.
- Whether the non-custodial parent's motive in resisting the move is to harm the custodial parent.
- Whether the non-custodial parent will still be able to have ongoing and significant contact with the child.
- The nature of the non-custodial parent's contact with the child so far. In cases that denied the move, a consistent theme is that the other parent has spent many hours each week with the child, consistently showed up for all his or her visitations, and established a close, supportive, and loving relationship with the child.
- The effect, either way, on the child's contact with grandparents and other people who are important influences in his or her life, as well as contact with the child's native culture.

The overall best interest of the child is the deciding factor for the court, based on all the facts and circumstances in each case. If the child is already confused, further estrangement may lead to serious abandonment issues that the child will feel the effects of for a long time.

The following is a WI statute:

948.31 Interference with custody by parent or others.
(1)(a) In this subsection, "legal custodian of a child" means:
1. A parent or other person having legal custody of the child under an order or judgment in an action for divorce, legal separation, annulment, child custody, paternity, guardianship or habeas corpus.
2. The department of children and families or the department of corrections or any person, county department under s. 46.215, 46.22, or 46.23, or licensed child welfare agency, if custody or supervision of the child has been transferred under ch. 48 or 938 to that department, person, or agency.
(b) Except as provided under chs. 48 and 938, whoever intentionally causes a child to leave, takes a child away or withholds a child for more than 12 hours beyond the court-approved period of physical placement or visitation period from a legal custodian with intent to deprive the custodian of his or her custody rights without the consent of the custodian is guilty of a Class F felony. This paragraph is not applicable if the court has entered an order authorizing the person to so take or withhold the child. The fact that joint legal custody has been awarded to both parents by a court does not preclude a court from finding that one parent has committed a violation of this paragraph.
(2) Whoever causes a child to leave, takes a child away or withholds a child for more than 12 hours from the child's parents or, in the case of a nonmarital child whose parents do not subsequently intermarry under s. 767.803, from the child's mother or, if he has been granted legal custody, the child's father, without the consent of the parents, the mother or the father with legal custody, is guilty of a Class I felony. This subsection is not applicable if legal custody has been granted by court order to the person taking or withholding the child.
(3) Any parent, or any person acting pursuant to directions from the parent, who does any of the following is guilty of a Class F felony:
(a) Intentionally conceals a child from the child's other parent.
(b) After being served with process in an action affecting the family but prior to the issuance of a temporary or final order determining child custody rights, takes the child or causes the child to leave with intent to deprive the other parent of physical custody as defined in s. 822.02 (14).
(c) After issuance of a temporary or final order specifying joint legal custody rights and periods of physical placement, takes a child from or causes a child to leave the other parent in violation of the order or withholds a child for more than 12 hours beyond the court-approved period of physical placement or visitation period.
(4)(a) It is an affirmative defense to prosecution for violation of this section if the action:
1. Is taken by a parent or by a person authorized by a parent to protect his or her child in a situation in which the parent or authorized person reasonably believes that there is a threat of physical harm or sexual assault to the child;
2. Is taken by a parent fleeing in a situation in which the parent reasonably believes that there is a threat of physical harm or sexual assault to himself or herself;
3. Is consented to by the other parent or any other person or agency having legal custody of the child; or
4. Is otherwise authorized by law.
(b) A defendant who raises an affirmative defense has the burden of proving the defense by a preponderance of the evidence.
(5) The venue of an action under this section is prescribed in s. 971.19 (8).
(6) In addition to any other penalties provided for violation of this section, a court may order a violator to pay restitution, regardless of whether the violator is placed on probation under s. 973.09, to provide reimbursement for any reasonable expenses incurred by any person or any governmental entity in locating and returning the child. Any such amounts paid by the violator shall be paid to the person or governmental entity which incurred the expense on a prorated basis. Upon the application of any interested party, the court shall hold an evidentiary hearing to determine the amount of reasonable expenses.

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05/01/2009 - Category: Child Custody - State: WI #16518

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