Custody & Kidnapping

Whether or not a person can leave the state with his/her child is a complicated legal question. It depends on a lot of different factors and we strongly recommend that you talk to a lawyer in [OLD STATE] who specializes in custody before making any decisions.

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 what your state’s law says about this and how it may or may not apply to your situation - you would have to ask a lawyer about this. You may want to ask an attorney how your plan to leave with your child may be considered under your state’s parental kidnapping laws. Here is a link for free and paid lawyers in your state [HYPERLINK].

If you are planning to leave the state, an attorney may also be able to tell you whether or not you should try to first file for custody and ask the judge for permission to leave the state, or whether you should try to file for emergency custody in the new state if you or the child is in danger of maltreatment or abuse, or whether none of those things may be necessary.

Also, generally, custody can be filed for as part of a divorce. A lot of times in a divorce proceeding, a custody agreement is negotiated between the parties before a divorce is final. You may want to ask an attorney if you can try to work out an agreement with your spouse to move with your children out of state while the case proceeds. If both parents can’t agree on custody, it could go to trial and the judge would eventually decide. Another thing to consider is that often times in many states, once a divorce or custody case is filed, both parents may be prohibited from removing the child from the jurisdiction (the state). I don’t know what your state’s rules are about this but an attorney could tell you.

If you file for custody as part of a divorce or before, an attorney may tell you that you need to get specific permission from the judge to move. If so, you may want to ask an attorney how to prove to the judge that moving is in the child’s best interest. Some possible things parents may generally show as reasons for a move are that the child would be attending a better school (e.g., if the school is ranked higher that a child’s current school, is safer, etc.); that the parent and child would be in a better economic or professional situation; that there is extended family support there; the neighborhood is safer, etc. In terms of your specific situation, you may want to get an attorney to advise you on how to best present your argument for moving, what information you can gather to help your case, etc. Here is a link for custody information in [STATE] [HYPERLINK] and here is a link for some information about the divorce laws in your state [HYPERLINK], including information about whether a spouse can get alimony and also the basic steps for filing for divorce.

Another possibility in some situations is that sometimes spouses are able to work out some type of agreement where one parent moves out of state and the other parent gets visitation. Often times, this may be done in court after one party files for divorce or custody or perhaps it may be done outside of court, before any court action is filed. If someone is thinking of trying to work out an out of court agreement to move, s/he may want to ask an attorney if putting this type of agreement in a notarized writing may one day help protect the parent who leaves in case the other parent accuses him/her of parental kidnapping. I don’t know if such an agreement would have any legal effect but if someone is thinking of trying to work out this type of out of court arrangement, hopefully a custody lawyer in his/her state would know. Also, as I mentioned above, if this move is done after any divorce papers are filed, the parent may possibly be in violation of his/her state’s court rules about not removing the child from the jurisdiction while a case is pending.

Also, in general, if a parent leaves without a court order, during the first 6 months that s/he is in the new state with the child, either parent can usually file for custody in the prior state and the parent who moved may have to return to that state for the court dates. It is possible that a judge might even rule that the children have to stay in the old state during the court proceeding or longer if the permission to move is ultimately denied. Again, it is generally best to talk to a lawyer before moving if possible.