Custody & Kidnapping

Whether or not a parent can move with his/her children is a complicated legal question. It depends on a lot of different factors, and we strongly recommend that you talk to a lawyer in your state who specializes in custody before making any decisions. You can find free and paid lawyers on our website. [HYPERLINK]

[INCLUDE THIS PARAGRAPH IF DV IS INDICATED:] Another option may be to call the Legal Resource Center for Violence Against Women, which specializes in interstate custody matters for abused women. They may be able to connect you with an attorney in your current state who can advise you about the state’s laws on parental kidnapping. Their number is 301-270-1550 .

While I cannot tell you specifically whether you can or cannot move since I cannot give legal advice, I will try to provide some general, basic information that may be useful.

If no custody order is in place (and there are no pending court proceedings involving the child), whether or not a parent is able to move may depend on factors such as whether the father’s paternity has been legally established, whether the state has a custodial interference law that will apply, and other factors. If paternity hasn’t been established, a parent who wants to move may want to ask a lawyer whether or not s/he is free to move under the state’s custodial interference laws. Paternity may be established through:

• marriage;
• an affidavit of paternity, which is usually signed at birth;
• a case involving the child (like a custody or child support case); and
• other legal methods.

If paternity has been legally established, some states’ laws assume that a mother has custody of a child born out of wedlock. Other states’ laws assume both parents have equal rights. We have the custodial interference law in STATE if you’d like to have a look. [GO TO THE CRIMES PAGE & LOOK FOR THE CUSTODIAL INTERFERENCE CRIME AND LINK TO THAT URL - DON’T COPY THE URL FROM THE STATUTES PAGE IN THE BACK END] However, these laws are hard to interpret and easy to misinterpret. If a state’s custodial interference laws do not allow a parent to move away with a child, the parent may have to go to court to file for custody and to specifically ask the judge for permission to relocate. At that point, a judge would consider many factors and may decide whether or not to allow the move. It is important to get a lawyer to explain how the law may apply to your situation. You can also find custody information for FIRST STATE on our website [HYPERLINK] in case a lawyer advises you that you need to file.

Another option that some people consider is to flee the state first and then file for temporary emergency custody in the new state that they are fleeing to. You can read more information about this on our parental kidnapping page. However, this is a hard standard to meet in order to convince a judge in a new state to grant emergency custody so it’s often better to get legal advice about one’s specific situation before attempting this. Also, this type of emergency custody wouldn’t necessarily prevent the other parent from filing for custody in the original state and in the worst case scenario, it could result in parental kidnapping charges or the loss of custody if the judge believes it was wrong to move the child out of state.

In general, when a child is moved to a different state, either parent may still be able to go to court in the state where the child was previously living (at any point over the next 6 months) to file for custody or visitation of the child. Depending on the situation and the state, the judge may order the child to be returned to the state, while deciding whether to allow the move. The judge may even remove custody from the parent who left the state, and give the child to the other parent while the custody case is going on. The parent who moved may also have to return to the state to be present in court for the court case unless s/he gets permission to appear in court by phone. Furthermore, in a state where parents are assumed to have equal rights, the fact that a parent moved the children out of state without getting court permission may negatively impact the parent’s ability to later get permission to move from the court. What a judge will do varies greatly from one judge to the next.

If the child and parent move, and the other parent doesn’t file anything in court for 6 months, custody/visitation petitions may need to be filed in the new state where the child is living. There may be exceptions to this general rule, however, such as if there were previous court cases regarding the child in a different state, and other exceptions. For all of these reasons, it’s very important to get a lawyer’s opinion and advice on what is the best path. If you can’t get a legal consultation, you may be able to get some additional information over the phone at the Legal Resource Center for Violence Against Women, which I mentioned above, which specializes in interstate custody issues.