Ne Exeat: A Motion Requiring Arrest If There Is a Possibility of Your Spouse Fleeing with Your Childfooter

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*Ne Exeat Motion*



If you think that your spouse may leave the state or with your child without notice to you and without the approval of court, you might want to have something like the motion below ready.



COMMONWEALTH/STATE COUNTY SS. COURT DOCKET NO. ------------------------------- Plaintiff Spouse Plaintiff v. Defendant Spouse Defendant ------------------------------- MOTION FOR AN ORDER REQUIRING THE ARREST OF JOAN DOE Pursuant to Rule 4.3(c) of the [Your State] Rules of Civil Procedure, John Doe moves this Court to order the arrest of Jane Doe to secure compliance with this Court's Judgment of Divorce and/or Order made on _______________ requiring Jane Doe to give John Doe physical custody of the child Stephanie Doe. A copy of the Judgment/Order is attached. In support of this Motion, John Doe states that (1) the above-described Judgment and Order requires the performance of an act; (2) the neglect or refusal to perform that act or take the action requires would be punishable by this Court as a contempt; (33) Jane Doe is about to depart from the Commonwealth with the minor child, Joanna Doe, and (4) there is a danger that such Judgment/Order will be rendered ineffectual on account of such departure. An affidavit in support of this Motion is attached. Respectfully submitted, JOHN DOE, pro se ___________________________ John Doe Address Insert Caption AFFIDAVIT OF JOHN DOE IN SUPPORT OF MOTION FOR AN ORDER REQUIRING THE ARREST OF JANE DOE I, John Doe, hereby swear and say, under the pains and penalties of perjury, that: 1. I am the defendant in the above-entitled action. 2. On or around ____day, DATE, I was to talk by telephone to my daughter Joanna, but my wife, Jane Doe, told me that my daughter was unavailable >and would remain unavailable for the scheduled telephone call. 3. Also on or around ____day, DATE, my wife, Jane Doe, told me that my daughter would also be unavailable and would remain unavailable for the scheduled visitation on ____day, DATE, because they "had plans to go away" and were "involved in something." 4. After I caused my attorney to call my wife's attorney to learn what was going on, I received a phone call from my wife, who informed me that she would make Joanna available for visitation after all on Saturday. 5. On Saturday, DATE, during visitation with my daughter, she ran over to her mother, Jane, and asked, "Can I tell Daddy that we are going away?" Jane said "No." I asked her what this was all about. She refused to answer my question. 6. My fear is that because my wife has no close friends, is not friendly with other members of her family, has no job, and thus has few if no ties to keep her in the Commonwealth, she will depart from the Commonwealth with my daughter Joanna to evade having to give me physical custody of the child. Sworn to under the pains and penalties of perjury. The Defendant John Doe Insert Caption ORDER THE ARREST To the Sheriffs of our several Counties, or their deputies in said County, GREETING: You are hereby ordered to arrest Jane Doe, if she may be found in your county, and keep her in your custody until you can bring her before this Court, at CITY, to await further order of this Court. Hereof fail not and make due return of this Order, with a description of what you have done in compliance therewith. ____________________ _______________________________ Date , J. Input from Robert Muchnick of Center for Children's Justice, Denver, CO: On May 21, the Colorado Supreme Court, in a child custody case, affirmed the right of the district courts of the state to issue a "writ of ne exeat" to prevent possible flight of a person from the jurisdiction. . . . Someone . . . got justice in a Colorado court. If Mom is getting ready to flee, this may be your quickest and best remedy. Check with an attorney and carefully read your own state laws and rules. Full case, No. 99SA127. In re: People in the Interest of B.C. and Alahmad, and Concerning Collins at http://www.cobar.org/coappcts/sc1999/sc0521a.htm. Input from Bob Hirschfeld, J.D., Legal Educator: In Arizona, and other states, a statutory ne exeat injunction is entered automatically by the clerk of court upon filing a divorce action. Problem in Arizona is that there is no such automatic injunction keeping a child of unwed parents within the jurisdiction during a custody dispute. It was therefore necessary, during my law practice, to specifically petition the Arizona court, on an emergency basis in new paternity cases, for what amounts to (but is no longer called) a Writ of Ne Exeat regarding the child. It was usually granted, but there were several judges who refused issuance on the grounds that paternity had not yet been judicially proven, and that it would be improper to restrain removal if the Petitioner were not in fact the biological father. Occasionally, the refusing judge instead ordered a fast turnaround hearing, giving the unwed mother "notice and an opportunity to appear" rather than issuing an ex parte Ne Exeat order. The results were almost predictable. Summoned, she'd appear before the judge and either object that she has the right because she's the mother or that she had no intention of removing the child from Arizona. Nearly always, if she claimed the court had no right to prohibit removal, the judge would ask her, "Well, is he the father of this child?" If she said yes, he'd rule from the bench that paternity had been established, and prohibit removal from the state. If she lied and said, "I have no intention of removing the child," most judges would smile and say, "Then you have no objection if I enter this order prohibiting removal?" Only in rare circumstances did the mother initially respond, "He's not the father." Then, the ruling depended on the particular judge's personal inclination.