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 [FILL IN - YOUR DAUGHTER, SISTER, ETC] talks to a lawyer in her state who specializes in custody before making any decisions.

Your [FILL IN] can find free and paid lawyers in STATE on our website. [HYPERLINK]

[NOTE: INCLUDE THIS IF THE WOMAN INDICATES DV: 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 her with an attorney in her current state who can advise her about the state’s laws on parental kidnapping before leaving the state. Their number is 301-270-1550.]

I cannot tell you specifically whether she can or cannot move since I cannot give legal advice. However, 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;
• a case involving the child (like a custody or child support case);
• and other legal methods.

Do you know if his paternity has been established in one of these ways? If paternity has not been established, some states’ custodial interference laws, assume that a mother has custody of a child born out of wedlock until paternity it established. Other states’ laws assume both parents have equal rights. Here is a link to the custodial interference law in FIRST STATE [HYPERLINK] (OPEN THE CRIMES PAGE IN A NEW WINDOW AND GO TO THE CUSTODIAL INTERFERENCE CRIME AND LINK TO THAT URL - DON’T COPY THE URL FROM THE STATUTES PAGE IN THE BACK END) However, custodial interference laws are hard to interpret and easy to misinterpret. It’s always best to consult with a lawyer first before leaving with one’s child to make sure they aren’t putting themselves in danger of violating the law.

If paternity has been legally established, then often state laws assume both parents have equal rights to the child. In that case, if the other parent doesn’t consent to the move, a parent may have to go to court to file for custody and to specifically ask the judge for permission to relocate to be sure they don’t get accused of custodial interference. In a custody case, 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 her situation. Here is a link for custody information for STATE [HYPERLINK] in case a lawyer advises her that they 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, often this may be a hard standard to meet in order to convince a judge in a new state to grant temporary emergency custody so it’s often better to get legal advice about one’s specific situation before attempting this. Also, even if a person gets a temporary emergency custody order, the other parent may still file for custody in the original state.

If a parent moves without getting a custody order first, 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. What a judge will do varies greatly from one judge to the next. 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.

But if the child and parent move, and the other parent doesn’t file anything in court for 6 months, the new state where the child is living might become the state with jurisdiction over the case. 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 so important to get a lawyer’s opinion and advice on what is the best path.