Custody & Kidnapping

NAME, have you already consulted with a lawyer in STATE about your situation. If not, you may want to talk to an attorney as soon as possible to confirm whether or not his actions are illegal under your state’s laws. And even if it is “legal,” an attorney may be able to advise you as to whether or not you should file for custody in court or take any other immediate action. We have some information on custodial interference/parental kidnapping laws here for STATE: [EITHER LINK TO PK SECTION IF WE HAVE STATE-SPECIFIC INFO OR LINK TO THE STATUTE FOR CUSTODIAL INTERFERENCE/PK] However, it is often hard to understand the language of the law on one’s own for complex crimes such as parental kidnapping and to figure out if it refers to a specific situation. To understand STATE’s specific law regarding parental kidnapping (also known as custodial interference), you may be able to ask a lawyer whether or not the law has been violated.

Although I cannot speak to your specific situation, in general, if there is no court order for custody, some issues that may come up when deciding if a father is legally allowed to keep a child in his care are whether the father’s paternity was established, whether the parents are married or not, and the circumstances surrounding the father’s keeping the child. Establishing paternity is generally when a biological father does something to legally declare himself the father. A mother’s custody rights are automatically established at birth and a father’s can generally be established through marriage to the mother when the child is born, or if the parents are unmarried, an unmarried father generally has to do something to establish his paternity rights. Often this is done through an affidavit of paternity, usually signed at the hospital or through a child support proceeding. Otherwise, he may have to go to court to file a petition to establish his paternity.

If an attorney agrees that it is illegal for a man whose paternity has not been established in any way to take a child, hopefully the attorney may be able to accompany you to the police to advocate for them to get involved. In general, if the police are not acting on a legitimate claim of a crime, a person may go up the chain of command within the police department or even may go straight to the district attorney’s office to ask the prosecutor to get involved. Having legal representation to take any of these steps may make it easier for someone rather than doing it on his/her own.

Another option, aside from going to the police can be to file for custody in court or to file some other sort of legal petition (such as a writ of habeas corpus) to seek the immediate return of a child. In some states, when filing for custody, the person can ask the court clerk how to see the judge immediately to request an immediate temporary (ex parte) custody order while awaiting the court date. A judge may only issue this type of temporary order if a child is in danger or potential danger but each state’s standard for issuing temporary custody is different. Hopefully an attorney can advise you on whether this is possible in your state and can give advice on whether or not you should file a custody petition or some other sort of petition to seek the return of your child. Here is a link with information about custody in STATE: LINK

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 your state’s parental kidnapping law or not. I am not sure if there is/was domestic violence within your relationship but in case there was, their number is 301-270-1550.