Custody & Kidnapping

When someone moves with a child to another state, often they may have the goal of waiting 6 months to establish home state residency and then filing for custody. However, if the other parent files a custody petition in the child’s current home state within those 6 months, it can be very risky to try to avoid being served with the custody petition in the hopes of letting the 6 months pass so that the parent can file for custody in the new state. There are a couple of concerns that this raises, which I would encourage you to consult with a lawyer about.

First, one thing I want to explain is that let’s say a parent moves from State A to State B, waits for 6 months, and files for custody in State B. In the meantime, the other parent files a proper custody petition in State A. Even if the parent who relocated files a custody case in State B after 6 months, the parent from State A could come to court in State B and prove to the judge that they already filed a proper petition in State A. The judge in State B could then dismiss the petition filed in State B. The State B judge could determine that since the petition was properly filed in State A before the child had residency in State B, the State A court is the proper court to hear the custody matter.

Second, if a parent files for custody in State A and the judge believes that the other parent is purposely avoiding being served, judges often don’t take too kindly to that. The judge could allow alternate service, such as service by publication or service to the last known address. If the respondent-parent in State B doesn’t appear in court in State A, the petitioner-parent could get a default judgment of custody. Depending on the procedure in the state, it may be possible that the judge might do what is called an inquest (a one-sided hearing where only the petitioner testifies) to establish best interests of the child or the judge may just grant the petition based on the fact that the respondent didn’t show up. And a default judgment of custody is enforceable.

Therefore, it is very important for you to talk to a lawyer who is familiar with interstate custody matters to get advice about your specific situation. The lawyer may advise you, for example, to willingly accept service of the custody petition, appear in court, and try to seek permission to relocate from the judge. Or the lawyer may give you other advice but the key here is to get advice from a knowledgeable lawyer. There is an organization called the Legal Resource Center for Violence Against Women, which specializes in interstate custody matters involving current/former intimate partners when there is a history of abuse. They give out information/advice (both to survivors and to attorneys) 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.

Another possibility is that 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.

I am also linking you to our Finding a Lawyer page in [STATE A] and in {STATE B} in case you want to try those options for getting a lawyer.