Know the Laws:
UPDATED October 18, 2013
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 check your specific state's laws. If this site does not yet have information for your state, please check with a lawyer.
The answer to this question is very complicated and may depend on many different factors. We strongly suggest talking to a lawyer for specific legal advice on your situation. 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. Additionally, there may be a big difference between if you are planning a short trip out of state, a long absence from the state, or if you are intended to move out of state long-term.
Again, please talk to a lawyer in the state you are thinking of leaving from who understands custody laws and criminal laws to determine what your state's laws are and how they might apply to your situation. Please click on Finding a Lawyer.
If you have been charged or fear being charged with parental kidnapping, please let us know and we will try to get you in touch with an organization that can help you.
Depending on your situation, you may also want to apply for temporary emergency custody. Please see Can I get temporary emergency custody? for more information.
If you are applying in a state where you and the child have recently arrived:
Under a law called the UCCJEA, you can apply for temporary emergency custody in a state that is NOT the "home state" of the child if the child is present in the state and:
If you have not left the state yet or you have left but have not been charged with kidnapping, we strongly suggest that you talk to an attorney who specializes in custody laws in your state. Hopefully, the attorney can advise you on whether or not you are in danger of committing parental kidnapping if you leave and what possible court actions you can take before leaving to leave legally (such as applying for custody perhaps). If you have left, you can ask about what steps you can take to try to avoid being charged with parental kidnapping. Go to our Finding a Lawyer page for more info.
In some states, if you are criminally charged but you are fleeing a pattern of domestic violence or to protect a child, then you may have what is called an "affirmative defense" to the charge of parental kidnapping but this can depend on your state's laws and your specific situation. If you have enough evidence to prove this defense, you might be able to avoid being convicted - but it may not prevent you from being arrested and charged with the crime and you can still have suffer all of the consequences that could come with being arrested such as losing custody. If you are fleeing domestic violence or to protect your children, it may be a good idea to collect evidence of the abuse before you leave, if at all possible, depending on your situation. Evidence of domestic violence or child abuse may include proof of calls to 911, police reports, medical reports, criminal convictions of the batterer, proof that you have seen a counselor and tried to get help, testimony from family, friends, or other witnesses, or anything that is evidence of an ongoing abusive relationship. Note: In some states, there are specific conditions you need to meet BEFORE or after you flee to take advantage of these legal protections. You can ask an attorney in the state you left from for this information.
If you do take your kids out of the state and are charged with kidnapping, you or your lawyer can contact us and we can try to refer you to experts who can assist you. Be sure to tell us that you have been charged with the crime of kidnapping or custodial interference and from what state.
Again, we strongly recommend that you talk to a lawyer who understands domestic violence, custody and your state's criminal laws before you make a decision. A lawyer can help you put together the necessary evidence if you must leave the state.
Depending on your situation, you may also want to apply for temporary emergency custody. Please see Can I get temporary emergency custody?
The answer to this question is complicated and may depend on many factors such as whether leaving the state violates the other parent's visitation time, whether the custody order addresses leaving the state, whether the custody case is ongoing, how long you will be away, etc. To find out how these factors may affect your ability to leave the state with your child, we strongly suggest showing your custody order to an attorney who specializes in custody for specific advice. Go to our Finding a Lawyer page for legal referrals.
Generally, if leaving the state would interfere with the other parent's visitation with the child or violate any other term of your custody order, you may be at risk of facing criminal parental kidnapping (custodial interference) charges in addition to any civil contempt charges for violating a custody order. Being charged with either may put you at risk of losing custody as well as other penalties. Also, often times when a custody case is pending (ongoing), both parents may be prohibited from removing the child from the state (jurisdiction).
If leaving the state would violate your custody order, you may likely need to file in court to ask the judge to modify the order to allow for your child to leave the state.
If the other parent agrees to allow you to leave the state in violation of the custody order, you may want to ask an attorney whether getting written, notarized permission from the other parent would be enough to protect you from a later accusation of parental kidnapping or violation of the court order or not. There may be other protections in your state that allow you to take your children out of state, even if the custody order doesn't appear to permit it.
Again, please talk to a lawyer in your state who is familiar with custody and domestic violence.
If there is some court action involving the children (divorce, custody, visitation, child support, etc.) that is in process, then it may be illegal for you to take the children out of state, even temporarily, without permission from the judge and/or consent of the other parent. If you have a current court action of this sort, then you may want to ask the judge or your attorney if you can take the children out of the state.
Also, keep in mind that once a court action is started in one state, then that state court generally has jurisdiction (power) over the case until it is finished. Sometimes you can move the case to another state, but it is often really hard to do. If your case is finished and you want to try to change a final custody order in a different state, go to our Changing a final custody order page for more information.