Custody & Kidnapping

In general, when one parent takes a child and refuses to return the child to the other parent, the parent whose child was taken may want to talk to an attorney as soon as possible to find out whether or not act of keeping the child is legal or not. And even if it is “legal,” an attorney may be able to advise you as to whether or not you should file for custody in court or take any other immediate action. When parents cannot agree on with which parent the child will live, one parent may choose to file for custody in court to ask a judge to decide which parent will have physical custody.

[CHECK TO SEE IF WE HAVE A PARENTAL KIDNAPPING OR CUSTODIAL INTERFERENCE LAW ON THE CRIMES PAGE - IF SO, SAY: We have the language of custodial interference/parental kidnapping law here: [LINK to Crimes page or to the exact statute page]: LINK However, it is often hard to understand the language of the law on one’s own for complex crimes such as parental kidnapping.] To understand STATE’s specific law regarding parental kidnapping (also known as custodial interference), you may be able to ask a lawyer or if you decide to report the situation to the police, the police may be able to tell you whether or not the law has been violated.

Although I cannot speak to your specific situation, in general, if there is no court order for custody, some issues that may come up when deciding if a father is legally allowed to keep a child in his care are whether the father’s paternity was established, whether the parents are married or not, and the circumstances surrounding the father’s keeping the child. Establishing paternity is generally when a biological father does something to legally declare himself the father. A mother’s custody rights are automatically established at birth and a father’s can generally be established through marriage to the mother when the child is born, or if the parents are unmarried, an unmarried father generally has to do something to establish his paternity rights. Often this is done through an affidavit of paternity, usually signed at the hospital or through a child support proceeding. Otherwise, he may have to go to court to file a petition to establish his paternity. If you are not sure if his rights have been established, talking to a lawyer who specializes in custody can help you understand what your rights are under STATE law and what his rights are.

In general, if there is no court order for custody, but the father’s paternity has been legally established, most states assume the parents to have equal rights to have the child in their possession even if the other parent disagrees. Although there are exceptions to this in some states, such as Arizona.

Either way, whether a father’s legal paternity rights were established or not, in some states, a parent can be committing the crime of custodial interference (parental kidnapping) if s/he hides or conceals a child from the other parent or moves the child out of state. You may want to also ask the attorney if the fact that he is keeping the child from you violates your state’s parental kidnapping laws and what steps you can take to get the child back. Depending on the facts of your situation, an attorney may advise you to try to get the police involved, or to file in court for custody and try to get immediate temporary custody, or there may be other options that apply to your situation. I cannot tell you if any of these options would apply to your situation since I cannot give legal advice - only at attorney can advise you.

Here is a link to lawyers, some of which are free or low-cost if you qualify: LINK and here is a link with some information about custody in case you end up having to go to court to file:LINK Even if a child was taken out of the state, either parent can still file for custody in the state where the child was living (unless the child has been removed for more than 6 months - then, the new state where the child is may be the state in which to file). In some states, when filing for custody, the person can ask the court clerk how to see the judge immediately to request an immediate temporary (ex parte) custody order while awaiting the court date. In some states, a judge may only issue this type of temporary order is a child is in danger or potential danger but each state’s standard for issuing temporary custody is different. Hopefully an attorney can advise you on whether this is possible in your state and your situation.