Custody & Kidnapping

Generally, most of the difficulties surrounding moving out of state with a child come into play after a child is born. A pregnant woman can live in whichever state she chooses but once she gives birth, that state becomes the child’s “home state,” which means that it’s the state where the judge would have power over custody decisions regarding the child.

In general, if a woman wants to live in a different state after the baby is born, she may consider moving to that state before she gives birth in order to try to establish that state as the baby’s “home state.” If a mother is planning to relocate out of state, that is generally much harder to do after the child is born. A mother may have to go through court to get permission or may even face allegations of parental kidnapping if she moves without court permission, depending on the specific language of the parental kidnapping laws in her state. So, for example, if a mother has her baby in State A and then moves to State B without court permission, the father can still file a petition for paternity and visitation/custody in State A because that is the “home state” of the child. The mother would have to ask the judge in State A for permission to move the child to State B and the judge may or may not grant permission. So, if a mother knows that she wants to live in State B, she may want to consider moving there before birth so that State B becomes the home state.

However, moving out of state pregnant and having the child in another state doesn’t mean that the father cannot access the child. No matter where a child is born, the presumed father can file a paternity petition in court in that state (the child’s home state) to establish paternity. After paternity is established, then the father can file a petition for custody or visitation. Once the custody or visitation petition is filed, the mother can object and try to convince a judge that the judge should not grant custody or visitation if that is the mother’s preference but it can be very hard to do, however.

If a pregnant woman does move before she gives birth, she may want to ask an attorney whether or not it may be useful to create a paper trail to establish herself in that new state (for example, getting a lease in her name or some other proof of residency, getting a driver’s license with the new address, putting utility bills in her name, etc.). This type of proof of residency may help her prove she lives in the new state if the other parent files for visitation or custody in the prior state claiming that the mother actually lives there.

To talk more about the pros and cons of moving before giving birth versus moving after giving birth, you may want to talk to a lawyer. You can find a link for legal referrals on our Finding a Lawyer page. [HYPERLINK]