We’re Separated — Can My Spouse Take Our Child and Not Bring Them Back?

Over the past twenty years, I have had numerous conversations with anxious people who are married with children but separated. The children sometimes go back and forth, and every time they do — when tensions are high — the parent thinks, “What is going to happen if he or she refuses to send them back? What can I do?”

The issue is that there is no “I had them last” rule in Oklahoma. Both parents have equal rights to have the children. This means that if a dispute arises, the police won’t intervene. Whoever has the child has the child, and a parent’s only remedy is court.

But I Don’t Want a Divorce Yet — What Are My Options?

There are a few, but none that really make sense from a legal perspective. How parents raise their children together is fundamental to the marriage relationship. In theory, one parent could file for a legal separation and seek a custody order, but I expect it would lead to procedural confusion in court. Further, the natural response to one spouse filing for legal separation is a counterclaim for divorce from the other spouse. This would put at issue the division of property and all issues related to the divorce.

In the meantime, the most practical steps you can take are to document everything — the parenting schedule, any disruptions to it, and your involvement in your child’s daily life — and to consult an attorney promptly.

What Does a Temporary Order Do?

The first natural step when there is a disagreement about who should have the children is to seek a temporary order. A temporary order is an order that exists while a case is pending. Because it takes time for a case to go to a full trial, the law provides that a parent may seek a temporary order from the judge on the issues of custody and visitation. It is not permanent, so it can change during the course of a case, and it is typically decided quickly by a judge based on a short presentation by your attorney.

How Does the Judge Decide?

In Oklahoma, all decisions about children are supposed to be based on the child’s best interests. As a practical matter, think of this as what the judge believes is best for your child based on very limited information. I am working on a more in-depth article on what goes into a best interest decision, which I will share later this year.

At a temporary order hearing, the judge is generally supposed to restore the status quo. This means that if the normal course of things was that the child spent equal time with both parents, the judge may adopt that schedule in their order. However, the judge is not required to do so and may do almost anything they believe would be best for the child.

What Are the Costs of Waiting?

There is a real danger in tolerating a situation in which you have been separated from your child. The longer you go without seeing your child, the more that absence becomes the status quo. When you finally do act, the judge may look at the situation and decide that the child is doing well living primarily with the current parent, and expand your time only minimally.

Beyond the legal risk, every drop-off carries its own quiet tension— the uncertainty of not knowing whether you’ll get them back. If you find yourself in this situation, the time to act is now. The sooner you speak with an attorney, the more options you will have to protect your relationship with your child.