Custody & Kidnapping

As a first step, you may want to talk to an attorney to find out whether what your spouse is doing is against the law or not. 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). Since I cannot provide legal advice, I cannot tell you whether or not the other parent’s actions in taking or keeping the children from you are illegal or not. You may want to ask an attorney if based on the law, the other parent’s behavior may possibly be illegal under your state’s parental kidnapping laws and what steps you can take to try to get your child back. Or sometimes a parent who believes parental kidnapping was committed who can’t find a lawyer to ask will make a report to the police to see if they take action (if they believe a crime was committed).

[INCLUDE THIS IF IT SEEMS THAT THE PARENT IS MOVING/RELOCATING WITH THE CHILD, AS OPPOSED TO GOING ON A BRIEF TRIP: And even if a lawyer tells you that the other parent’s behavior is “legal,” an attorney may be able to advise you as to whether you should file for custody in court or if there is another legal action that could get your child back, such as filing for a writ of habeas corpus to produce the child in court, or another immediate legal action. Here is some information about custody in STATE. HYPERLINK

When filing for custody, a parent may want to ask the court clerk how to see the judge immediately to request an immediate temporary (ex parte) custody order while awaiting the court date. In some states, 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. 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 is in danger or not. Also, in some states, there is a separate form/petition to file to indicate that the parent is asking for an ex parte immediate temporary custody order. Hopefully, the court clerk can let you know what would need to be filed if you choose to request this.

In addition, one thing that I wanted to mention is that when filing for custody, generally the parent would file in the state where the child most recently lived for six months (the child’s “home state”). Therefore, even if a parent has moved a child out of state, but the child has not lived in that new state for six months, custody petitions would still be filed in the former state where the child lived. Once a petition is filed and served upon the parent who left, it’s possible that the judge could make the other parent return to the child’s “home state” immediately or by the next court date and the parent can be ordered to remain in the state while the custody case is pending.

[ADD THIS IF THE LEFT-BEHIND PARENT SEEMS TO BE A DV VICTIM: If the parent filing for custody was being abused, s/he may also decide to apply for a protection order, which may possibly allow for temporary custody. Here is more information on protection orders [HYPERLINK] in STATE so you can see if you may qualify and whether your state allows a protection order to include temporary custody of a child.

It’s extremely important to try to get help from a lawyer right away. Here is a link for lawyers on our Finding a Lawyer page, some of which are free or low-cost. HYPERLINK