Custody & Kidnapping

In general, if people are legally married, most states consider the parents to have equal rights to the child so that either parent may be able to have the child in his/her possession. However, many states also have parental kidnapping/custodial interference laws that apply to married couples as well as unmarried couples that may prohibit certain behaviors (such as concealing the whereabouts of the child, for example).  This is the law in STATE SHE LEFT FROM that refers to custodial interference: LINK However, laws that deal with parental kidnapping can be hard to interpret (and easy to misinterpret) and so you may want to talk to a lawyer in STATE LEFT FROM to figure out whether this law applies to your situation or not. 

If someone moves his/her children out of state, the other parent may do three things.  First, s/he may call the police and accuse the parent of parental kidnapping (and then the custodial interference law in the state the parent left from would either confirm that the parent has broken the law or may confirm that the parent has not broken the law).  Second, the left-behind parent may go to court to file for custody of the children and to ask for immediate temporary custody. (I discuss this more in the next paragraph.) The parent who left may be ordered to return the children to the state pending the custody hearing. Third, the left-behind parent may do neither of these things.  I cannot say what may or may not happen in your situation.  

Here is some more information on the general custody process. Often times, when parents cannot agree on where a child should be living, one parent will go to court in the child’s “home state” and file for custody and permission to move out of the state with the child.  The “home state” is generally considered to be the state where the child has last lived consecutively for a period of 6 months. Under certain circumstances, when filing for custody, a parent may be able to ask for an immediate (ex parte) temporary custody order while awaiting the next court date. In some states, this sort of (ex parte) temporary immediate custody may only be granted if the child is in danger with the other parent but other states have other standards. In some states, there is a separate form/petition to file to indicate that temporary custody is requested pending the return court date.  If you decide to go back to the children’s home state to file for custody, hopefully the court clerk can let you know what would need to be filed if you decide 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 that state and whether it is necessary to prove that the child was in danger or not. However, in some states, once a custody petition is filed in the child’s “home state,” there are automatic restraining orders put in place prohibiting either parent to leave the state with the child - I do not know if this would apply to custody proceedings in your state or not. 

Instead of returning to a child’s “home state” to file for custody, if a parent who has left the state with his/her children can prove that the child, a sibling, or the parent is in danger of being maltreated or abused, s/he may be able to file for temporary emergency custody in a state other than the home state (so, in a new state where the parent and child are).  However, this type of out-of-state order may only be valid until a regular custody petition is filed in the home state.  Here is a link for information about filing for temporary emergency custody in a state that is not the home state. However, you may want to get legal advice in your current state first to see what the chances are of succeeding on this sort of custody case if you are considering filing. To find the locations of courthouses, if necessary, you can go to our Courthouse Locations page. [HYPERLINK]

If an attorney advises you to file for custody in either OLD STATE or NEW STATE, here is some information about the custody laws in OLD STATE, and the custody laws in NEW STATE. [HYPERLINK]

To look for a lawyer, here is a link for free legal organizations and private lawyers in OLD STATE so you can call to get legal advice, and also as for lawyers in NEW STATE. [HYPERLINK]

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. Their number is 301-270-1550.

[ADD THIS IS IT IS POSSIBLE THERE IS DV AND SHE FLED BEC OF DV] Lastly, there is a non-profit organization called Greater Boston Legal Services that has a “Relocation Counseling Project,” which provides information to domestic violence victims in any state who are fleeing abuse and relocating. Although they don’t provide direct legal representation, they can help you think through your options with an eye towards keeping you safe. They can work with local domestic violence programs to find safe and affordable places with the best privacy options based on relevant state laws, Address Confidentiality Programs, DMV procedures that are friendly, etc. They can be reached at 1-800-323-3205.

[INCLUDE IF RELEVANT] Speaking of abuse, I wanted to mention that if someone is in danger and files for a protection order, it may be possible to ask for temporary custody as part of that order - but getting temporary custody on a protection order might impact a parent’s ability to try to move the custody case to a different state. Here is information on protection orders in OLD STATE and in NEW STATE. [HYPERLINK]. You may want to try to get some advice from a custody lawyer in your state before filing for a protection order that includes temporary custody.