Custody & Kidnapping

Whether or not a parent can move with his/her children is a complicated legal question. It depends on a lot of different factors, and we strongly recommend that you talk to a lawyer in your state who specializes in custody before making any decisions.

To find a lawyer, including one who may be able to provide free or low-cost legal services, you can click on our Finding a Lawyer page. If there was domestic violence in the relationship, then another option may be to call the Legal Resource Center for Violence Against Women (www.LRCVAW.org), which specializes in interstate custody matters for abused women. They may be able to connect you with an attorney in your current state who can advise you about the state’s laws on parental kidnapping. Their number is 301-270-1550.

I cannot tell you specifically whether you can or cannot move since I cannot give legal advice. However, I will try to provide some general, basic information that may be useful.

If no custody order is in place (and there are no pending court proceedings involving the child), whether or not a parent is able to move may depend on factors such as whether the father’s paternity has been legally established, whether the state has a custodial interference law that will apply, and other factors. You mentioned that the father did not sign the birth certificate. Therefore, I assume he didn’t sign any sort of affidavit of paternity at birth, correct? In most states, the affidavit is usually what’s needed to get a father’s name on the birth certificate when the parents are unmarried. However, is it possible that his paternity may have been established in any other way? For example, if there is a child support order, if the parents were married, or if either parent filed a paternity petition in court, it may be established. Some states’ laws assume that a mother has custody of a child born out of wedlock but other states’ laws assume both parents have equal rights once paternity is established. I don’t know what STATE laws say about this. If you are sure that paternity has not been established, you may just want to confirm with a lawyer who specializes in STATE custody issues about whether or not you are free to move under the state’s custodial interference laws.

Here is a link to STATE’s custodial interference (parental kidnapping) law: STUDENT, PLEASE GO TO THE CRIMES PAGE, LOOK FOR A CRIME CALLED INTERFERENCE W CUSTODY OR SOMETHING SIMILAR AND CLICK ON IT - THEN LINK HER TO THE ACTUAL STATUTE However, these laws are hard to interpret (and easy to mis-interpret) and so we strongly suggest talking to a lawyer for advice to see when the law would apply in a case between unmarried parents when there is no custody order and where paternity has not been established (if that is the case).

One thing to consider is that if a child is moved to a different state, either parent may still be able to go to court in the state where the child was previously living to file for paternity, custody or visitation of the child. Depending on the situation and the state, the judge may order the child to be returned to the state during the court proceeding while deciding whether or not to allow the move. The parent who moved may also have to be present in court for the court case unless s/he gets permission to appear in court by phone. If the child and parent move, and the other parent doesn’t file anything in court for 6 months, paternity/custody/visitation petitions may need to be filed in the new state where the child is living. There may be exceptions to this general rule, however (such as if there were previous court cases regarding the child in a different state, perhaps, and other exceptions). Again, for specific advice, talking to a lawyer is best.