I have been divorced for a year and am the custodial parent with my ex having our son every other weekend and sometimes a night during the week since our separation in march 2009. We do not have a custody agreement but have managed to keep to this schedule without issue.
I am now dating what used to be the paramour from an affair I had during our marriage. My ex does not like this person and I am worried that my ex will not bring our son back to me after learning about my relationship.
My question to you is what I should do from a legal perspective if my son is not returned. Without an agreement already in place, what should I do?
Unfortunately, without a legal custody arrangement in place, you cannot do much in the event that your ex doesn’t return the child as promised. It would not be kidnapping if there is no custody order, because your ex is the child’s parent just as you are. The circumstances don’t rise to kidnapping therefore unless he leaves the state with the child and/or doesn’t let you know that the child is safe. The police will not get involved in a case like this.
If, however, he leaves the state with the child with the intention of residing in another state permanently, you may file for emergency custody and he could be forced to return. If this is not a case where the parent will take the child out-of-state, then you will then need to file an action for child custody. The court will award custody based on what it finds to be in the best interests of the child based on any and all evidence that is relevant. I strongly suggest that you find a lawyer quickly. While these informal arrangements can work short-term, it is my experience that they don’t often work well in the long-term.