Custody & Kidnapping

Whether or not a person can leave the state with his/her children is a complicated legal question. It depends on a lot of different factors, and we strongly recommend that she talk to a lawyer in [OLD STATE] who specializes in custody before making any decisions.

In general, if people are legally married, most states consider the parents to have equal rights to the child so that either parent may be able to have the child in their possession. However, many states also have parental kidnapping/custodial interference laws that may prohibit certain behaviors, such as concealing the whereabouts of the child, for example. You can see OLD STATE’s parental kidnapping law on our website. However, these types of laws are often hard to interpret and easy to misinterpret and therefore, it’s best to talk to a lawyer for help in understanding the law.

Since I cannot provide legal advice, I cannot tell you if it may or may not apply to her situation - she would have to ask a lawyer about this. You can find free and paid lawyers on our website. [EMBED LINK]

[ALSO, ADD THIS IF SHE SAYS THERE IS DV: Also, there is an organization called the Legal Resource Center for Violence Against Women, which specializes in interstate custody matters for abused women. They give out information/advice about interstate custody matters and they can try to help find an attorney in any state to represent someone on an interstate custody matter or to give advice on whether or not a move out of state would violate OLD STATE’S parental kidnapping law or not. Their number is 301-270-1550.]

If she is planning to leave the state, an attorney may also be able to tell her whether or not she should try to first file for custody and ask the judge for permission to leave the state, or whether she should try to file for emergency custody in the new state if she or the children are in danger of maltreatment or abuse, or whether none of those things may be necessary.

If a person files for custody, an attorney may tell them that they needs to get permission from the judge to move. If so, the parent may want to ask an attorney how to prove to the judge that moving is in the child’s best interest. Some possible things parents may generally show as reasons for a move are:

• the child would be attending a better school (e.g., if the school is ranked higher that a child’s current school, is safer, etc.);
• the parent and child would be in a better economic or professional situation;
• there is extended family support there;
• the neighborhood is safer; and
• other information concerning the child.

In terms of this specific situation, your [DAUGHTER, FRIEND, ETC} may want to get an attorney to advise her on how to best present her argument for moving, what information she can gather to help her case, etc. Again, I can’t say for sure what the judge in her state will consider. These are just some general examples that may come up in some parents’ situations. You and your [DAUGHTER, FRIEND, ETC] can see more information about custody in OLD STATE on our website. [EMBED LINK]

Another possibility in some situations is that sometimes spouses are able to work out some type of agreement where one parent moves out of state and the other parent gets visitation. Often times, this may be done in court after one party files for divorce or custody or perhaps it may be done outside of court, before any court action is filed. If someone is thinking of trying to work out an out of court agreement to move, they may want to ask an attorney if putting this type of agreement in a notarized writing may one day help protect the parent who leaves in case the other parent accuses them of parental kidnapping. I don’t know if such an agreement would have any legal effect, but if someone is thinking of trying to work out this type of out of court arrangement, hopefully a custody lawyer in his/her state would know. Again, talking to a lawyer who is familiar with custody and parental kidnapping laws to make sure that she wouldn’t be committing parental kidnapping by leaving the state with her kids is generally best.

Also, in general, if a parent leaves without a court order, during the first 6 months that they are in the new state with the child, either parent can usually file for custody in the prior state. The parent who moved may have to return to that state for the court dates. It is possible that a judge might even rule that the children have to stay in the old state during the court proceeding or longer if the permission to move is ultimately denied. Again, it is generally best to talk to a lawyer before moving.