It happens all the time.  You knew things were rocky and your relationship strained, but when you come home to an empty house, it takes your breath away.  The kids… where are they?  No doubt, your spouse or partner has loaded them into the car and hit the road.

Sad man sitting on the floorWhat now?

If you are both parents of the children and there are not existing court orders in effect, you both have equal rights to the children.  Let the games begin.  If she has the children and won’t let you see them, you may have to wait until you get to court and obtain temporary orders for possession.

Or, you go to Plan B.  You go to school and pick the kids up at the end of the day before She gets there.  Score one for you.  The kids are now with you and there’s nothing She can do to wrestle them away.

What about calling the police?  Most of the time, police will be reluctant to intervene in such a situation.  At the most, they may go do a “welfare check” or knock on the door to see if the kids are OK.  However, if the kids are with the other parent, the police will not, and cannot, compel that parent to surrender the children to you.

Call CPS? You’re getting into dangerous territory here.  CPS workers know when bogus referrals are made to gain an advantage in custody litigation so you’d better have something real to report.  Did I mention a false CPS report is a crime?

It’s time to consult a good family law attorney.  I am a Board Certified Family Law Specialist with offices in Fort Worth and Dallas , and can help you during these uncertain times.

While each divorce or custody case is different, I usually recommend that my clients file their suit for custody and obtain a temporary restraining order (TRO).  These orders are granted automatically by Texas family law courts and prohibit the other parent from hiding the child, disturbing the peace of the child, removing the child beyond a prescribed area, or changing the child’s school enrollment.

A TRO is served on the other parent along with the petition for divorce or custody and remains in effect for up to 14 days.  Before the TRO expires, a hearing will occur in court to determine whether the TRO should be made an injunction and other, temporary orders for custody should be entered by the family court.   In most cases, serving a TRO on the parent in possession of the child is both a deterrent and a conversation starter.

A typical, TRO will not, however, award you emergency possession of your child.  To get emergency possession of children and deny the other parent possession prior to a full custody hearing, you have to do more.  You have to submit to the court a supporting affidavit, alleging that the children are in immediate danger and that they could be subject to further abuse or neglect if allowed to remain with the offending parent.  Again, this is your time to consult a family law specialist who knows what facts are important to the court and can help you prepare your affidavit.  Remember, family court judges are very cautious about denying a parent possession of a child, so your affidavit has to overcome this reluctance by the court.

So, let’s conclude by returning to the normal scenario; two fairly decent parents who have put their children in the middle of their divorce or custody case.  Here’s what to do.  Stay calm during these first few days before you get to court and know that he or she will not be able to deny you the children.  In fact, this kind of unsophisticated warfare comes back to haunt the offender.

Finally, you need a lawyer who knows family law, child custody, and divorce.  This is no time to do it yourself.