What will happen if the father will not return his daughter after their custody agreement is over? 3 Answers as of June 20, 2011

My sister has had custody of her daughter since she was born. 2 years ago to be nice to the father they wrote up an agreement that would give him custody for 3 years so she could get to know and live with him for those 3 years, after the years are up the agreement states that my sister will get the custody and her daughter would come back to live with mom. My sister lives in California and baby daddy lives in Georgia. The agreement was written up in California signed and notarized as well. My niece has mentioned to her father that she wants to live with her mom again and he replied by telling her that, that probably wont happen. My niece is 11 years old, when she comes back to live in California she will be 12. My sister is now thinking that the father will not agree to send her daughter back and then submit papers to court in Georgia petitioning for full custody. The question is will he be able to file in Georgia or will he have to file in California and also what should my sister do? Also will my niece have a say at all? She has straight A's and is in the honor society.

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Wallin & Klarich: A Law Corporation
Wallin & Klarich: A Law Corporation | Paul Wallin
The general rule in custody matters is that if the child has resided in a state for 90 days to 180 days (depending upon the rules in each state), then that state will likely exercise jurisdiction over a child custody matter. However, in this case, since the husband signed an agreement to return the child to California after 3 years, I believe California would strongly consider taking jurisdiction and handling this case. Of course either state could decide to exercise jurisdiction but there are specific rules that apply when a case can be brought in either of two states on a child custody matter. Since your sister will claim "fraud" and she will have that written agreement to show the California court, there is good chance the California court will accept jurisdictdion.
Answer Applies to: California
Replied: 6/20/2011
Komanapalli Massey LLP
Komanapalli Massey LLP | Mark A. Massey, Esq.
If maintaining sole physical custody of her daughter was your sister's goal, then she made a mistake in sending her away to live with her father for three years. After three years, the presumption is likely to be that it is in the little girl's best interest to remain in her stable environment where, by your account, she is excelling in school and doing great. She may have told her mom, your sister, what she thought her mother wanted to hear when she said that about the father not letting her live with mom again. At age 12, the girl will have some say, but her wishes will not be determinative. Mom will have to file for custody changes in Clark County if the child has resided in Chicago for more than I think it is six months. I am not familiar with Illinois family law, but it is apt to be quite similar to California's where child custody and visitation are concerned. At this point, it is likely that your sister will be able to get a regular visitation schedule, including a requirement that dad at least pitch in on the travel costs for sending to child for part of summer and holiday vacations from school to be with mom. However, mom will not be able to remove sole physical custody from dad, despite their contract. Such a contract gives way to what is in the child's best interests, and the court will base its decision on that, not on what mom and dad agreed two or three years ago.
Answer Applies to: California
Replied: 6/20/2011
Law Office of Joseph A. Katz
Law Office of Joseph A. Katz | Joseph A. Katz
This question is broad and potentially complex. Sending the child to Georgia was probably a bad idea. I have trouble seeing that it was in the child's best interests though, or course, the Court wants to foster a healthy and continuous relationship with each parent. The child is in Georgia, so that is probably where the case will be fought. However, since there is an agreement signed and notarized in California, your sister should file in California. It will be up to the father to transfer the jurisdiction, and what he does not know will hurt him. It would be much, much better if the mother had the child in California when she filed. It is summer now, so the child is off for the summer. She might even be of an age at which she is moving from elementary to middle school. I cannot tell from the information you provided. I would go an retrieve the child, pursuant to the agreement and then file in California. The father will probably file a child abduction case in Georgia, but then again, your sister has the agreement. Can she at least get the child to California for a "summer visit"?
Answer Applies to: California
Replied: 6/20/2011
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