Custody & Kidnapping

TAILOR THIS AS APPROPRIATE - THIS WRITER HAD ONE CHILD BORN AND ONE ON THE WAY: It seems that there are a few issues that are presented by your email. The first is whether or not a parent can move out of state with his/her children when the other parent objects. And the second comes from the fact that you have only been in your current state for a few months, which has to do with which state would have the power to make custody decisions about your child. Lastly, you mentioned that you are due to give birth in your current state before you move. I will try to give you information about all of these topics in this email.

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.

When a parent wants to leave the state with a child against the other parent’s will, one concern that arises is whether or not the parent’s action would violate the state’s parental kidnapping law (often known as the custodial interference law).

In general, 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. If paternity hasn’t been established, a parent who wants to move may want to ask a lawyer whether or not s/he is free to move under the state’s custodial interference laws. If paternity has been legally established (which can often be done via a child support order, through an affidavit of paternity, through marriage, etc.), 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. I don’t know what Oklahoma laws say about this. Again, it is important to speak to a lawyer who understands your state’s custodial interference laws who can advise you about whether or not you can move based on your specific situation and your state’s laws.

Normally, if a state’s custodial interference laws do not allow a parent to move away with a child, the parent may have to go to court to file for custody and for permission to relocate - however, a court generally does not have jurisdiction (power) over custody matters until a child has been living in that state for 6 months. 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.)Prior to living in a state for 6 months, the child’s prior state where s/he lived for 6 months generally still has power (jurisdiction) over custody matters. Therefore, you may want to ask an attorney about whether or not the fact that you have only been there for a few months affects whether or not you are able return to your home state- and whether or not the parental kidnapping law may apply or not. [INCLUDE THIS ONLY IF SHE IS PREGNANT: However, if someone gives birth in one state, that state may be considered the child’s “home state” even if the child has not lived there 6 months yet. Often times someone who is pregnant and planning to move to another state may choose to try to move before birth to establish the new state where s/he is moving to as the baby’s “home state” for future custody matters.]

To find a lawyer, including one who may be able to provide free or low-cost legal services, you can click here to this part of our site: LINK If there has been any domestic violence in the relationship, another option may be to call the Legal Resource Center for Violence Against Women, 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 and give you advice about whether or not you can move out of the state with your kids. Their number is 301-270-1550.

[INCLUDE THIS ONLY IF RELEVANT: Lastly, you specifically asked about whether or not the father needs to sign something for you to move. Although I cannot speak to your situation or give you any sort of advice, sometimes a parent may decide to get a notarized letter giving permission for a move as a way to try to defend against any future allegations that the move was done without that parent’s knowledge. Again, perhaps a lawyer can advise you on whether or not such a notarized letter would help your situation.]