Custody & Kidnapping

In general, married parents are considered to have equal rights to a child until a court order says otherwise.  Whether or not a parent can legally relocate with her children out of state when the other parent disagrees may depend on what the state’s parental kidnapping law says.  Many states have parental kidnapping/custodial interference laws that apply to married couples as well as unmarried couples that may prohibit certain behaviors (such as concealing the whereabouts of the child, for example). You may want to talk to an attorney to find out whether what your spouse is planning on doing would be against the law or not.  

You may also want to ask an attorney what is the best way to handle it regardless of whether it is illegal or legal and what, if anything, you may be able to do to prevent the trip before it happens.  For example, sometimes if parents are separated, one parent may file a custody petition in court to ask for custody of the child and/or to prevent the other parent from leaving the state with the child.  Even if a judge does not grant the parent a temporary custody order over the child, a judge can order that neither parent is allowed to take the child out of state while the custody case is pending. An attorney can hopefully advise you about exactly what to file and what your rights are. Here is a link for lawyers, some of which may be free or low-cost: http://www.womenslaw.org//gethelp_state_type.php?type_id=1169&state_code…

Here is a bit more information about filing for custody, in general. Under certain circumstances, when filing for custody, a parent may be able to ask for immediate temporary custody while the case is pending and while awaiting the return court date. In some states, temporary immediate custody may only be granted if the child is in danger with the other parent but other states may have other standards - and in some states, there is a separate form/petition to file to indicate that temporary custody is requested pending the return court date.  Hopefully the court clerk can let you know what would need to be filed. A parent who is considering asking for temporary immediate custody may want to ask a lawyer what the legal standard is in his/her state and whether it is necessary to prove that the child was in danger or not.  A person can file with a lawyer or on his/her own. Here is a link that explains custody in STATE so you can have some info on it: LINK If the parent filing for custody was being abused, s/he may also decide to apply for a protection order, which may possibly allow for  temporary custody.  Here is more information on protection orders in STATE so you can see if you may qualify and whether your state allows a protection order to include temporary custody of a child:LINK]

One thing to know is that even if a parent leaves the state with a child, the other parent can still file in court in the state where the child lived for the first 6 months after the child moves out of state – then the other parent may have to come back to the prior state for the custody case and a judge would decide if the child can be moved out of state or not.