Legal question, "kidnapping," answer needed ASAP, tonight, please!

[Steelharp]

NOT MY IMMEDIATE FAMILY, but extended.

Sister in law, single mom. Deadbeat dad sticks HIS copy of a temporary custody paper in her mailbox and takes baby. He filed Thursday; official papers have NOT BEEN SERVED to her. Is that kidnapping since she has not received official notice?

Also, is that not an offense of some kind to stick unmailed papers in someone's mailbox?

[Sam1]

Yep it is a crime to put anything unmetered/processed in a mailbox. Can't say anything about the other part though

[DaveTN]

It’s not kidnapping if a court gave him custody, no matter who was notified. Where was the Mom during the hearing, and why was there a custody hearing?

[Steelharp]

Custody hearing HAS NOT HAPPENED yet. He stuck some papers in her mailbox, copies of something he got when he went Thursday. Hearing is scheduled for 3 Oct. She knew NOTHING about it.

His mother called and asked if she could take the baby shopping; apparently that's when he stuck whatever papers he had in her mailbox.

Edited September 23, 2012 by Steelharp

[midtennchip]

Sounds like we need more information. If there is a court order (could have been an emergency order without her being there), then there's already been a hearing of some sort. Service is not required for an order for it to be effective. The order is effective immediately. Now, if the papers are just notice of a hearing, then maybe there's a problem. The fact that she knows there's a hearing in October and there is a new set of papers suggests something more has happened. In any event, without knowing if the mother had sole custody before this, it would be difficult to say with any certainty what the answer is.

I do not practice in domestic cases, but she needs to get in contact with her attorney ASAP. too many details needed for any of us to be much help with so little information. Good luck. Wish we could be more informative.

Edited September 23, 2012 by midtennchip

[Steelharp]

I should have what the paper says in about 15 minutes.

[Murgatroy]

Sounds like we need more information. If there is a court order (could have been an emergency order without her being there), then there's already been a hearing of some sort. Service is not required for an order for it to be effective. The order is effective immediately. Now, if the papers are just notice of a hearing, then maybe there's a problem. The fact that she knows there's a hearing in October and there is a new set of papers suggests something more has happened. In any event, without knowing if the mother had sole custody before this, it would be difficult to say with any certainty what the answer is.

I do not practice in domestic cases, but she needs to get in contact with her attorney ASAP. too many details needed for any of us to be much help with so little information. Good luck. Wish we could be more informative.

I went through this last year. I haven't talked about it on here, but it was bad. Things got better.

Are they divorced? That is the first and foremost. Who has custody before the hearing/papers and such today?

My wife and I had a rough time last year, and it involved her fleeing the state with my daughter twice in the space of a week. Because we were still married, there was nothing I could do. However, with the help of a good (expensive) lawyer, and some creative wrangling I was able to use the threat of grand theft auto and child endangerment to get her back in the state. Had that not worked, my lawyer was going to move for temp custody. One of the hard parts was that we were still married (I filed immediately as a leverage tool) and we both had custody.

Through a very messy and expensive divorce preceding we started wrangling for sole custody of my daughter. After I spent my entire savings, and called in a lot of IOUs, sold anything I had of value, etc... My wife and I managed a reconciliation.

This is still a sore issue for me (as I am still paying off favors and trying to buy my guns back) but I learned a lot in the process.

One, the courts aren't like they were when I was a kid. It is completely possible for a father to get custody in today's system. My wife is a good person, she hasn't ever broken a law in her life. However, in a time of hurt and confusion she made several very bad decisions on top of one another. That was enough for me and my lawyer to rake her through the coals.

Two, divorce is nasty. Nasty.

Three, my daughter is the most important thing in the world to me.

Four, sometimes it is cheaper, easier and better for all involved to suck it up, say you are sorry and move on.

Five, I miss Tennessee and Kentucky sucks.

And now you guys know why I moved.

[Steelharp]

It IS a temporary protective custody order... amazing how things change when you finally get information instead of panicky, emotional bursts. Sections 1 - 4 give the reasons why section 5 grants the temp custody.

I had no idea my sis in law was ever in that kind of trouble. Wow.

Edited September 23, 2012 by Steelharp

[Mike.357]

tn law states that the mother has custody of a child. There is nothing a mother can do to have that on paper. It is assumed she is the custodial parent..

Short of that there needs to be a real court order for that to change.

Sounds like a bunch of BS has gone on Mike.

[Murgatroy]

tn law states that the mother has custody of a child. There is nothing a mother can do to have that on paper. It is assumed she is the custodial parent..

Short of that there needs to be a real court order for that to change.

Sounds like a bunch of BS has gone on Mike.

Until custody is determined by the court, both parents are custodial parents if married.

Unless there have been hearings, or the mother was never married to the father and custody wasn't determined, then yes, the mother is the custodial parent.

I am not a lawyer. Don't play one on TV. That is why I paid a lot of money to one.

[Mike.357]

that is not what I was told by children's services when we went through this crap for my oldest grandson. The mother has custody in TN.

[DaveTN]

"You are hereby summoned to appear before the juvenile court of Sumner County on 3 October... " signed by Judge Brown... looks to be just a summons; it says NOTHING about custody. It's never been served; there is NOTHING in the Sheriff's part of the document.

All you can do is call the Police. These types of cases are hard for everyone concerned. As a cop I had to look at all the circumstances involved. A court order defines what the cops can or can’t do. Rarely could we do anything as they were family court matters. Too often the responses of one of the parents turn the case into a criminal matter that has nothing to do with the child.

You can talk to the cops and see what they tell you, but unless the Father is drunk or unable to care for the child; there isn’t a lot they can do. These battles are fought by the attorneys in a courtroom. When the parents can’t agree and it comes to that, there usually are no winners, only losers; including the child.

Mike says there is Tennessee law that says the Mother has custody. If that is true they may go get the child back. But I don’t know how the cops can stop a Father from seeing his child without a court order.

Be interesting to see what they tell you.

[Mike.357]

best answer of the thread Dave.

I doubt the police will do anything until family court decides what is to happen.

Basically whoever physically has the kid has control,

All the mother can do is try to steal the child back,

[Murgatroy]

This is the biggest reason we reconciled. Hurting my family was the most painful thing I have ever been through.

My daughter loves both of her parents, and the idea of forcing her to be with one or the other was torture.

I feel bad for all parties involved, without knowing the whole story.

[Mike.357]

"My daughter loves both of her parents, and the idea of forcing her to be with one or the other was torture."

spot on

[Pain103]

From what little information is given, I assume, the temp custody order gives the father custody of the child until a hearing is scheduled to determine the facts and a judge to issue an order. It isn't considered kidnapping in Tennessee if a parent is involved it is called Custodial Interference. If the child was taken to deprive the mother who has legal custody of the child then it would fall under that statute. But if he has secured an order of the court then it would be legal.

Edited September 23, 2012 by Pain103

[Jonnin]

try to find a way to use this against him in the custody hearing.

[Tempest455]

Having gone through a quasi family kidnaping situation, I can tell you the police will not be able to help. They will suggest you get an attorney and contact the FBI if it involves an out of state situation.

[D3vo]

I don't understand the finer aspects of the law, but it was revealed in a previous post it is an order of temporary protective custody. The father may have jumped the gun, but to get that order the judge had to be convinced it was in the child's best interest until the hearing.

[DaveTN]

The “Kidnapping†statutes are abused in many states. They carry heavy penalties and were never intended to be used in a custody case. It appears to me that Tennessee is not one of the states that allow that abuse.

The extreme appropriate charge in Tennessee would be 39-13-306 Custodial Interference. If the child is not in danger a parent should never be able to be charged with a felony for merely taking custody. It is a matter for the family courts to deal with and should never, except in extreme cases, end up with a parent in jail. That is just my opinion from responding to more of these cases than I can count.

Unfortunately child custody is more often used as a tool to get money or to hurt the other party than it is used for the wellbeing of the child. It is a very emotional and trying time for a parent and they are susceptible to bad choices and bad advice.

I hope anyone can work it out without getting the cops involved or wasting a bunch on money on attorneys that could either be used for the child, or to reestablish the family.

Edited September 23, 2012 by DaveTN

[Tncobra]

Probably needs an Attachment from the judge to pick up the kid. The order isn't that, it only speeds the court date up.

Custodial interference comes to mind, not kidnapping.

*Im not a lawyer