Custody & Kidnapping

Your concern about what happens if your ex refuses to return your child after a visit is a valid issue to raise. In general, married parents are considered to have equal rights to a child until a court order says otherwise. So, if a parent wants to keep their child with them – even if the other parent disagrees – this may not be “against the law” per se. Therefore, the police may not intervene unless the behavior specifically violates the state’s parental kidnapping law. It could be possible to get the courts involved by filing a custody petition in the child’s “home state” but often, the first court date could be months away during which time the child may remain out of state with the other parent.

Before your child leaves the state for a visit, you may want to consult with an attorney to figure out the best way to protect yourself. A court order for custody that lays out when visitation will take place is the most enforceable. However, since custody can be a very long process and often custody is not handled until a divorce is filed, perhaps the parents will draw up a written contract that gives the details of the trip, including the return date, a schedule for phone calls, etc., and even any penalties for violating the terms of the contract. However, it’s important to know that police will not enforce a private contract between parents - they may only help enforce a court-issued custody order that is clearly violated.

Here is a link for lawyers, HYPERLINK including free legal services where hopefully you can get some specific advice and suggestions.

Here is a bit more information about filing for custody, in general, and a link to custody information in STATE. HYPERLINK Under certain circumstances, when filing for custody, a parent may be able to ask for immediate temporary custody while the case is pending and while awaiting the return court date. In some states, temporary immediate custody may only be granted if the child is in danger with the other parent but other states may have other standards - and in some states, there is a separate form/petition to file to indicate that temporary custody is requested pending the return court date. Hopefully the court clerk can let you know what would need to be filed if you choose to go this route. A parent who is considering asking for temporary immediate custody may want to ask a lawyer what the legal standard is in his/her state and whether it is necessary to prove that the child was in danger or not. In some states, once a custody petition is filed, both parents are prohibited from taking the child out of state while the court case is pending without specific permission from the judge. Again, hopefully you can talk to a lawyer to decide whether you want to file for custody or take other actions to try to prevent your ex from keeping your child out of state.