Custody & Kidnapping

If one parent is thinking of moving out of state with a child against the other parent’s wishes, often the parent who disagrees with the move may be able to file in court to try to stop the move and to ask that the child remain in the state. If the parent already left with the child, the remaining parent can still file in the court where the parent and children were living in order to try to seek custody/visitation and/or to ask the judge to order that the children be returned to the state if they were already moved by the other parent. A judge could order that the child must remain in or return to the state while the custody case is going on and until a final court order is issued. Usually during a court custody case, the parent who wants to move with the children will need to prove to the judge that it is in the child’s best interests to move and the other parent can try to convince the judge that it is in the child’s best interest to remain in the state. I cannot say specifically what you may need to file in your state or how a judge may rule – you would have to get advice from a custody attorney in your state.

If it is a father who is filing in court, he may have to prove that his paternity was already established or if it wasn’t established, perhaps he may even file to establish paternity at the same time as he files a petition to try to get the children returned. Do you know if your paternity was established legally? This is commonly done when both parents sign an affidavit of paternity at the child’s birth, or through a child support order. If you are not sure, you may want to talk to a lawyer to see whether or not your paternity was established and what effect, if any, it may have on your ability to file in court to try to prevent or reverse a move.

[IF THE PARENT HASN’T MOVED YET, ADD: If the parent has or gets a custody or visitation order over the child and there is some type of fixed schedule, the other parent may have to ask for permission from the judge to relocate or take some other steps required by law (such as notifying the other parent in writing, for example). The judge will consider a lot of factors such when deciding whether or not to allow the move, specifically focusing on whether or not it is in the child’s best interest to move.]

If the parent has already taken the children out of state before the other parent files anything in court, the remaining parent generally can still file in court in the state where the child lived for the past 6 consecutive months (known as the “home state”). Often, a judge may order that the child remain in the state until the case is resolved but in other cases, a judge may not order this - it may depend on the state’s laws and the facts of the specific situation. I cannot speak to what may happen in your state or your specific situation. Here is a link for lawyers in your state if you want to get legal advice or representation about your specific case: LINK and here is a link with information about custody in your state: LINK

A parent may also want to talk to a lawyer who is familiar with parental kidnapping laws in his/her state to find out whether or not the other parent’s actions may be violating the state’s criminal parental kidnapping law or not. If the lawyer advises that it is a crime, the remaining parent may decide to file a complaint with the police.