Custody & Kidnapping

IN THIS CASE, WE DIDN’T KNOW IF THERE WAS A CUSTODY ORDER. IF YOU KNOW, YOU CAN ELIMINATE ONE OF THE ALTERNATIVES BELOW:

I am not sure from your situation whether or not there is a current custody order that grants the father specific visitation so I will address both situations, where there is a custody order and where there is not. If there is a court order for custody that lays out specific visitation times, and you believe that the order is being violated, you may want to consult with an attorney about the best course of action to take. In general, if a parent is violating a custody/visitation order, there can be penalties that could vary from state to state but they can often range from possible fines/jail time for serious violations, to having to make up the lost visitation time (if a parent isn’t given his/her visitation), to in extreme circumstances (usually for continual or very serious violations) even losing custody. I can’t say how your state in particular handles violations of a custody/visitation order. You may want to talk to a lawyer in your state who specializes in custody to find out what may happen in your particular situation and whether or not you can go to court and ask that the judge order the child’s immediate return.

Another way to handle the violation of a court order may be going through the police. I can’t speak to whether or not your state’s police will get involved in custody violations or whether they would refer the parent to file in court. Again, talking to an attorney in your state may provide some insight for you. One issue that comes up often when a parent holds a child in a different state and refuses to return the child in violation of a clear custody order saying otherwise is that sometimes, the police will not enforce another state’s order. The parent may be able to file for contempt in the state that issued the custody order and get a bench warrant for the other parent to produce the child in court. However, in many states, the police will not enforce a bench warrant issued by another state’s judge. Often, the parent trying to enforce the custody order may have to go to the state where the other parent is holding the child to file for an emergency pick-up order in that state’s court, which could then be enforced by police. Sometimes the parent may be able to get a lawyer in the state where the child is being held to file it on his/her behalf without going to that state. You may want to talk to a lawyer in the state where the child is being held. Also, if you are a domestic violence victim, you may be able to get help from the Legal Resource Center on Violence Against Women, which specializes in interstate custody matters for abused women. Their number is 301-270-1550. Since I cannot give advice and am not knowledgeable about the particular states involved, I cannot say whether or not you may have a hard time getting police in another state to enforce a court order.

If there is no court order for custody but rather just a verbal agreement about visitation times, some issues that may come up are whether the father’s paternity was established, whether the parents are married or not, and the circumstances surrounding the father’s keeping the child. Establishing paternity is generally when a biological father does something to legally declare himself the father. A mother’s custody rights are automatically established at birth and a father’s can generally be established through marriage to the mother when the child is born, or if the parents are unmarried, an unmarried father generally has to do something to establish his paternity rights. Often this is done through an affidavit of paternity, usually signed at the hospital or through a child support proceeding. Otherwise, he may have to go to court to file a petition to establish his paternity. I don’t know exactly what he would have to do according to [STATE] law since each state is different. If you are not sure if his rights have been established, talking to a lawyer who specializes in custody can help you understand what your rights are under [STATE] law and what his rights are.

Either way, whether a father’s legal paternity rights were established or not, in some states, a parent can be committing the crime of custodial interference (parental kidnapping) if s/he hides or conceals a child from the other parent. You may want to also ask the attorney if the fact that he is keeping the child from you violates your state’s parental kidnapping laws and what steps you can take to get the child back. Depending on the facts of your situation, an attorney may advise you to try to get the police involved, or to file in court for custody and try to get immediate temporary custody, or there may be other options that apply to your situation. I cannot tell you if any of these options would apply to your situation since I cannot give legal advice - only at attorney can advise you. Here is a link to lawyers in case you do need to go to court or in case you want to get more specific information about the law in your state on parental kidnapping: LINK And here is some information on custody in your state in case you do end up having to file: LINK