Know the Laws:
UPDATED May 3, 2016
Custody and kidnapping are complicated and it is important to try to find an experienced lawyer to help you with your case. The terms used on this page are defined generally, and may have different meanings in your state. Please consult with a lawyer about your specific state's laws.
If you are afraid that the other parent will take your children away without your consent, you might be able to ask the judge to issue an emergency custody order, which most states provide. You may want to ask the judge to include in the order that the other parent cannot take the children out of the state, or that the other parent may only have supervised visitation. Please see Can I get temporary emergency custody? for more information as to what factors a judge might consider when deciding whether or not to grant emergency custody. You can also go to the Custody section of your state for more information.
Depending on your state's restraining order laws, a threat to take your child and leave the state might also possibly qualify you for a restraining order. You can read more about your state's laws on our Restraining Orders page.
The answer to this question is very complicated and may depend on many different factors. The laws on parental kidnapping (also known as custodial interference) are different in each state. In some states, it may be against the law to take children out of state only if it violates a custody order or if there is an active custody case pending. In other states, the act of taking the children out of state itself may not be illegal unless the parent conceals (hides) the children from the other parent. Other factors that may be considered are whether the parents are married (and considered to have equal parental rights) or, in the case of unmarried parents, whether the father's paternity has been legally established. Also, there could be a big difference if the other parent is planning a brief visit out of state or if s/he is planning on moving out of state for a long time.
We list the definition of parental kidnapping/custodial interference for most states on our Crimes page - enter your state in the drop-down menu to read the definition of the crime in your state. However, these types of laws can be hard to interpret and easy to misinterpret. We strongly suggest talking to a lawyer who specializes in custody matters and/or a prosecutor to find out if the other parent's actions are legal or not. See our Finding a Lawyer page for information about resources in your state.
You may want to immediately contact a lawyer who can help you figure out what you can do to try to prevent an abduction. For a list of legal resources, please see our Finding a Lawyer page.
If you can convince a judge that your concerns that the other parent is going to are “reasonable” based on the facts, you may be able to get the court to intervene. If you are seeking custody of your children, you can ask the judge to include a provision that the non-custodial parent is not allowed to travel with your child out of the state or the country. Alternatively, the judge may order the other parent to post a bond (money) that would cover the cost of having to try to locate and retrieve your child if s/he were taken. If you already have a custody order, you may be able to file to modify the order to include one of these terms.
If you think that the other parent may try to flee with your child out of the country, you could ask the court to hold your child’s passport (and even possibly the other parent's passport) so the child cannot leave the country. If your child does not have a passport yet, you may be able to register for the Children’s Passport Issuance Alert Program from the U.S. State Department, which provides the following service:
"Parents may register their U.S. citizen children under the age of 18 in the Children’s Passport Issuance Alert Program (CPIAP), one of the Department of State’s most important tools for preventing international parental child abduction. If a passport application is submitted for a child who is registered in CPIAP, the Department alerts the parent or parents. This program provides parents advance warning of possible plans for international travel with the child."
Note: If your child has dual citizenship, then s/he may be able to travel out of the country on the passport of the foreign country. The State Department cannot regulate passports from a different country, so you may want to contact that country's embassy or consulate to ask if they have a similar program. You will find contact information for embassies and consulates here.
* See the U.S. State Department website
Thank you to the Legal Resource Center on Violence Against Women for their assistance with this page.