It is an unfortunate truth that many children grow up with only one parent in the picture. While this situation has countless emotional implications, it also causes legal problems for the care-giving parent. I believe it is imperative for a parent raising a child/ren alone due to an absent parent to file for a sole custody order to avoid these legal problems, as I will discuss below.
1. Why You Need a Custody Order if the Other Parent is Absent
Many people think the last person to need a custody order is a parent whose former partner is absent because they don’t have to worry about the other person. However, this thinking in incorrect. Here are a few reasons a custody order is necessary:
- School Permissions: Many schools require that in the absence of a custody order, both parents must sign permissions for the child to partake in certain events at school. Sometimes schools forgo this requirement if they know one parent is absent, but this is not always the case. Many schools will require a custody order, so it is better to have one in hand before the problem arises and you must wait months to obtain your order.
- Bureaucratic Requirements: In the absence of a custody order or permission from both parents, you will not be able to obtain a passport for your child to travel outside the United States. Some countries will not even allow a child with a passport to travel internationally without a court order or permission from both parents.
- Return of an Absent Parent: What happens when an absent parent returns and wants to be a part of the child’s life? If there is no custody order in effect, the formerly absent parent listed on the child’s birth certificate has the same rights and access to the child as the caregiving parent. The effects of this situation are wide-ranging – your child may need time to reestablish a relationship (or even establish an initial relationship) with the formerly absent spouse or worst-case scenario – the absent spouse may pick your child up from school and abscond with them. It is much better to have a custody order in place to prevent such scenarios. The formerly absent parent would then have to petition the court to implement a visitation schedule committed to reestablishing a relationship with the child under the appropriate circumstances.
2. How Do I Get Custody Order When the Other Parent is Absent?
Since you do not know where the absent parent is located – whether because they have moved and didn’t provide you with an address, they are purposely hiding themselves from you, or they are in a bad situation such a drugs causing them to be transient – you cannot have them served with an order to appear in court for the hearing on your custody request. You will therefore need to request the court to declare the absent parent as an absent person and appoint an attorney (called a “curator”) to attempt to find them and make an appearance for them at the hearing on your petition. Once appointed, the curator will post a publication in the local newspaper of the last place you know the absent person to be and send a certified copy of your petition and the hearing date to their last known address. Sometimes, the absent parent is found and hires an attorney to represent them at the hearing. Most of the time, the absent person is not found or simply ignores the paperwork sent by the curator.
At the hearing on your petition for custody, you will provide testimony regarding the absence of the absent parent, the timeline of parenting of the absent parent, if any, and your reasons for requesting sole custody. The curator will advise the court of his or her efforts in attempting to find the absent parent, may ask you some questions regarding your testimony, and will ultimately inform the court whether he or she has any objections to your custody request (in most instances, the curator has no objection). The court will then make a decision on your custody request and enter an order.
3. How Do I File for Custody When the Other Parent is Absent?
The process of filing for custody when the other parent is absent is complicated, and we advise you to consult with an attorney for help in the process. A family law attorney with experience in custody cases where one party is absent will be able to help you navigate the process. If you are in need of a custody order and the other parent is missing, call Attorney Tracy Rotharmel Shanks at 504-509-5000 to get more information on how to proceed.