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Child Kidnapped in Custody Case Returned to Her Father

January 10, 2012 By Duane L. Coker Leave a Comment

One of the biggest fears divorcing parents face is the possibility of the ex-spouse kidnapping their children. An even bigger fear is that the children will be taken to a foreign country where it is not only more difficult to forcibly get your children back, but also more expensive.

For a Wisconsin man, that is exactly what happened four years ago after he filed for divorce. His wife took their young daughter to Japan and ignored all court orders that she return their daughter to the states. As you can imagine, the father was awarded custody over here, but he had another legal battle to fight—one that would force Japan to force his ex-wife to return their daughter.

He had to hire a Japanese attorney and pay hundreds of thousands of dollars, but in the end, it all paid off as 9-year-old Karina returned to the US this past December right before Christmas.

What’s perhaps the most tragic about this ordeal is that it is believed this is the FIRST case where a child kidnapped to Japan during a custody battle has been returned via legal intervention. In this case, the struggle would have most likely continued for even longer if the ex-wife hadn’t returned to Hawaii to renew her US residency. When she arrived, she was arrested due to a warrant from Wisconsin. There are advocacy groups who are trying to increase the legal return rate of internationally kidnapped children, but they know that most people cannot afford the legal expenses required to do so. These groups hope that this case will make it easier for parents in similar situations to have their children returned, but they know it will not “open the floodgates” any time soon.

Filed Under: Child Custody

What is the Difference Between an Annulment and a Divorce?

January 4, 2012 By Duane L. Coker Leave a Comment

A divorce legally terminates a legally valid marriage. An annulment dissolves a marriage by declaring it legally invalid. As a result, an annulment makes the marriage as if it never existed.

An annulment can only be granted if the marriage is voidable or is a void marriage, which are completely different despite how they sound. A voidable marriage is legally valid and recognized until it is annulled and declared otherwise. A void marriage was never valid to begin with.

For instance, a marriage is voidable and eligible to be annulled if one of the parties was under the influence of either alcohol or drugs at the time of the union. Voidable doesn’t automatically mean that the marriage is void, though. The parties will have to seek an annulment of a voidable marriage to dissolve it completely.

Now a marriage is void if it violates laws of marriage, such as bigamy. If one of the parties is already married to another, then this new marriage is instantly invalid and never legally recognized. However, if the parties decide to stay married and the party who was already married divorces or annuls that marriage, this new marriage will be legally valid and recognized. Another example of a void marriage is one between two closely related relatives, such as with a parent, a sibling, or an aunt or uncle.

Take note, however, that an annulment has none of the same processes as a divorce. So if you annul a marriage, there is no division of property, no spousal maintenance (alimony), and the like. An annulment just turns back time so that the act of marriage never happened. Also keep in mind that Texas only allows for an annulment in very specific circumstances that requires proof of these circumstances. In other words, irreconcilable differences are not grounds for an annulment in Texas. Even meeting the initial grounds for a voidable marriage (under the influence at the time, for example) can be insufficient if very specific other conditions aren’t met. Many of these have to do with time limits and/or continued cohabitation with the spouse. For these reasons, if you are thinking about an annulment, you should see a family lawyer immediately.

Next post, we’ll go over what Texas does require for an annulment. If you have any questions if your marriage can be annulled, feel free to contact our office.

Filed Under: Annulment

Can I Get Custody of a Child Who is Not My Own?

December 28, 2011 By Duane L. Coker Leave a Comment

Blended families–those that include step-children, such as his, hers, and ours–are becoming more and more part of the social norm, particularly since the divorce rate continues to increase. It is natural for step-parents to develop a bond with their step-children and to want to continue a parental relationship even after they divorce from the biological parent. However, non-relatives are very limited in their right to seek custody of a step-child or be appointed as the child’s conservator.

The Texas Legislature recognizes the fact that under special circumstances a non-relative can be involved in a child’s life enough to be entitled to seek rights that biological parents and other relatives have.

The guidelines follow alongside most of the rules required for grandparents to seek rights to visit or obtain custody. More specifically, if a step-parent has “actual care, control, and possession” of a child for at least six months, he or she can file a petition to seek conservatorship of the child. Such a petition must be filed within 90 days of the child leaving the petitioner’s care, control, and possession. In this case, actual control is still the subject of conflicting appellate rulings, but generally refers to the step-parent having power or authority to guide and manage the child.

The same can be true if a child of a friend or relative has lived with you for the last six months while attending school with your children, and that parent is not able to take the child back into his or her custody, such as due to death, illness, incarceration, financial difficulties, etc. In this situation, you do have the right to file a petition for managing conservatorship of the child. These conservatorships are often temporary and do not require the biological parents to terminate their rights, but they provide you with the rights and authority you need to legally make decisions for the child’s care, possession, and upbringing.