Custody & Kidnapping

THIS IS WRITTEN AS IF WE ARE UNSURE IF PATERNITY HAS BEEN ESTABLISHED - IF SHE SAYS IT WAS ESTABLISHED, TAKE OUT SOME OF THE LANG IN THE BEGINNING ABOUT HOW TO ESTABLISH PATERNITY

You mentioned that the father is threatening to take the children from you and that there is no current custody order. Let me ask you, do you know if your children’s father ever established his paternity rights? In general, establishing paternity is when a biological father does something to legally declare himself the father. A mother’s custody rights can be automatically established at birth and a father’s can be automatically established if the parents were married when the mother gave birth. If the parents were not married, then the father likely has to take steps to legally establish his paternity rights. Did you and your child’s father both sign an affidavit of paternity at birth? Or was he ever paying child support through the state? These are the type of things that likely will establish a father’s paternity rights. If you are unsure of whether his paternity was established, you may want to talk to a lawyer in STATE who specializes in custody to find out if his paternity has been established and, if so, what your rights are under STATE law. Here is a link to lawyers in STATE: LINK The reason why establishing matters is that if a man’s paternity rights are not established, he may not have legal rights to his children. However, at any point, a man may be able to file to establish his paternity in court and then file for custody or visitation.

If you believe the father’s paternity rights have been established in some way, you may want to ask an attorney if he may legally be able to keep your children with him even if you object to it. One thing to explore is what your state’s parental kidnapping laws say in your state so you’d know whether or not the other parent might be committing a crime if he took them against your will. Here is a link to your state’s parental kidnapping law if you want to read it: GO TO CRIMES PAGE, LOOK FOR CUSTODIAL INTERFERENCE LAW, CLICK ON IT AND THEN LINK HER TO THE STATUTE ITSELF (DON’T JUST LINK TO THE GENERAL PARENTAL KIDNAPPING PAGE) However these types of laws are hard to interpret and easy to misinterpret so talking to a lawyer who is familiar with custody laws in your state may be best.

I also want to point out that in general, if a parent fears that the other parent will take his/her children, and there is no custody order, s/he may want to consider filing for custody in court. One thing that may be possible is to request an immediate ex parte temporary custody order (which means the order would take effect on the day the petition is filed). Although often ex parte custody orders are granted in emergency situations, it’s possible that a parent could get one based on a threat made by the other parent to take the children, especially if the threat is to take the children out of the state. It’s also possible to ask in the custody petition that the judge order that the child cannot be taken out of the state while the court case is pending. If the court does not issue an ex parte custody order, then in many states, when a person files for custody, s/he may not go in front of a judge but rather s/he may just receive a date to come back for a hearing, which could be months away. However, if the parent tells the clerk when s/he files that s/he is also seeking an ex parte temporary custody order, perhaps s/he might be able to see the judge that same day - I can’t say for sure what the process for this may be in your state or even if your state allows for an ex parte temporary custody order. Also, as I said, in some states, there may be a specific legal standard that must be met to get an ex parte temporary custody order, such as danger to the child. I don’t know what the legal standard for granting ex parte custody orders may be in STATE.

One benefit of having a custody order is that if the other parent violates it, it may be easier to get one’s kids back than if there were no custody order. Without a custody order, in some states, if the father has legal paternity rights established, it’s possible that the father may legally be able to keep the kids with him unless and until a judge says otherwise. The police likely will not intervene and the courts may not even order that the children be returned. However, if there is a custody order that gives one parent custody and the other parent violates it, in some states, the police will intervene or at the very least, the parent can go to court and file a violation petition and ask that the other parent be held in contempt of court and that the child be returned. Here is the information about custody in STATE if you want to review it so you can decide if you want to file or not.

Whatever your situation, because custody can be a complicated issue, you may want to contact a lawyer in STATE to help you determine what your best next steps are. This person could also help you prepare for or even represent you in court, should you go to court. See the link above for a listing of lawyers in STATE.