Custody & Kidnapping

NOTE: THIS HAS INFORMATION FOR A MARRIED V WHO MOVED FROM NY TO FLORIDA AND ASKS IF SHE CAN FILE FOR CUSTODY - IT COVERS THE LOGISTICS OF FILING FROM A NEW STATE AND ALSO THE HOME STATE RULE; AND TOUCHES ON PK ISSUES. CHANGE THE TEXT AS NEEDED; THIS IS WRITTEN IN THE THIRD PERSON: READ CAREFULLY TO CHANGE “HER” TO “YOU” ETC IF YOU ARE WRITING TO THE VICTIM

In terms of your question about whether or not she can file for custody, was she hoping to file in NEW STATE? Or was she thinking of filing in OLD STATE and asking for permission to relocate to NEW STATE.

In terms of in which state a person can legally file for custody, generally custody petitions are filed in the “home state” of the child. In general, the last state where a child has lived with his/her parent for 6 consecutive months is generally considered the child’s “home state” and the state that has jurisdiction (power) over the child for custody matters. Therefore, if either parent wanted to file for custody of the child, s/he may generally have to file in the home state until a new home state is established but there may be exceptions to this general rule. For example, if there was already a prior court case for custody or visitation in another state, that state may keep jurisdiction even once the parties have moved and so petitions related to the children may have to be filed in that state (unless and until the court gives up jurisdiction to a different state). Sometimes, when filing for custody in the home state, the parent can ask for an immediate, temporary ex parte custody order to be issued that would grant the parent custody until the next court hearing. However, some states may only issue this sort of ex parte custody order if there is some sort of danger to the child.

Also, if the parent can prove that the child, the parent or a sibling are 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. Again, I cannot speak to your daughter’s specific situation. Here is information on filing for temporary emergency custody in a state that is not the home state: http://www.womenslaw.org/laws/general/parental-kidnapping/when-you-want-…

To find the locations of courthouses in NEW STATE, if necessary, you can go to our Courthouse Locations page:LINK

Although the law may require a person to file for custody in the child’s home state, logistically, it may be difficult for someone to file a court petition while s/he is out of state since there may be multiple court dates that s/he will need to attend. However, it may be possible to hire a lawyer who is in the state where the person wants to file and see if the lawyer can appear instead of the person for certain court dates. It may even be possible for the lawyer to ask permission for the petitioner to “appear” in court via phone or video conference. If your daughter is thinking of filing for custody in OLD STATE, she may want to talk to a family law attorney in her county to get advice as to whether or not this would be possible to do without traveling back and forth for every court date. Here is a link for lawyers in OLD STATE: LINK

Another issue that I wanted to raise, INSERT NAME, is the issue of whether or not a parent can legally move out of state with his/her child without violating any custodial interference laws. Whether or not a person can leave the state with his/her children is a complicated legal question. It depends on a lot of different factors and we strongly recommend that she talk to a lawyer in OLD STATE who specializes in custody to get legal advice. 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). 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 his/her state’s parental kidnapping law or not. Their number is 301-270-1550.

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. Again, talking to a lawyer who is familiar with custody and parental kidnapping laws to make sure that she wouldn’t be committing parental kidnapping by leaving the state with her kids is generally best.

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.