Custody & Kidnapping

Although I cannot speak to your state’s laws or your situation in particular, when one parent leaves the state with a child, it may be possible that the other parent may report it to the authorities. Each state has a different law on parental kidnapping (also known as custodial interference) and so the language of the law may determine whether the parent’s actions violate the law or not. In general, if someone reports a possible crime to law enforcement, the police may evaluate whether the person’s actions violate the law and the district attorney may decide whether or not to prosecute. Also, if there is a current court order for custody, it may be possible that moving without first modifying the order to ask for permission may be considered contempt of court – again, this will vary by state and may even vary by case, depending on what the custody order says. You may want to talk to a lawyer in the state that you left from as soon as you can to see what your state’s laws say about parental kidnapping and whether your actions violated the law – if so, you may want to get advice as to what you can do about it now.

Another possible factor that may be considered when deciding if a mother who leaves the state has violated any laws may be whether or not the father’s paternity has been legally established. In general, if a mother wants to move a child out of state, it could be possible that s/he may have to ask permission from a court to do so if the father’s paternity has been established and if the father does not agree – this may depend, in part, on the state’s laws regarding who is considered to have custody of the child when the parents are unmarried. Establishing paternity is when a biological father does something to legally declare himself the father. If the parties are married, it is generally established automatically. If the parties are unmarried, he may sign an affidavit of paternity at birth, be declared the father through a child support case, or go to court to get himself declared the father - I don’t know exactly what he would have to do according to {STATE} law since each state is different. However, if you do not believe the father has legally established his paternity, this may be something to raise with the attorney who you speak with so you can find out if this affects whether or not you can leave with your children. Different states view the establishment of paternity differently for unmarried mothers - some assume that the mother has custody even if paternity is established until a court says otherwise and some states view the parents as having equal rights once paternity is established. You can ask the attorney about how this may be viewed in your state and based on the specifics of your situation.

In some states, if a person is leaving the state to flee a pattern of domestic violence or to protect the child from abuse, s/he may have what is called an “affirmative defense” to a criminal charge of parental kidnapping. This basically means that if a person is charged with kidnapping, s/he may be able to plead “not guilty,” and, if s/he has enough evidence to prove that s/he was fleeing domestic violence or preventing child abuse, s/he may be able to avoid being convicted. (In general, evidence of domestic violence or child abuse could possibly range from things such as proof of calls to 911, police reports, medical reports, criminal convictions of the batterer, proof that the victim has seen a counselor and tried to get help, testimony from family, friends, or other witnesses, or anything that is evidence of an ongoing abusive relationship. The exact evidence that is able to be entered in court may depend on that state’s “rules of evidence” among other factors). However, by the time the victim gets to prove this affirmative defense, s/he may have already been arrested, temporarily jailed, and may have lost custody pending the outcome of the trial. Therefore, it is generally best to try to take actions ahead of time to avoid being charged with or arrested for parental kidnapping. Also, not all states have this option of presenting such an affirmative defense. I don’t know if this is available in your state or if your situation would fit but a criminal defense attorney who defends parental kidnapping cases can hopefully advise you about this.

Another thing that you may want to discuss with an attorney is whether or not you may want to file for what is called “temporary emergency jurisdiction” (emergency custody) in the state that you moved to. Temporary jurisdiction may be difficult to get, depending on the situation, the judge, etc. In general, a person may be able to get temporary emergency custody in a new state s/he has moved to with a child if:

1. the parent and the child are present in that new state, AND
2. the child has been abandoned OR emergency custody is necessary to protect the child because the child, or a sibling or parent of the child has been subjected to maltreatment or abuse or threatened with abuse. [NOTE: INCLUDE THIS IF SHE IS IN MA OR IF YOU DON’T KNOW WHAT STATE SHE’S IN: In MA, however, it only applies if the child is subjected to or threatened with maltreatment or abuse, NOT a sibling or parent].

Either way, whether you are a victim or not, we strongly recommend speaking to a custody lawyer about your rights and your state’s laws. You can find a lawyer here [INSERT FINDING A LAWYER]

To read more about custody laws in your state, see LINK