Custody and kidnapping are complicated and it is important to try to find an experienced lawyer to help you with your case. The terms used on this page are defined generally, and may have different meanings in your state. Please consult with a lawyer about your specific state’s laws.
When the other parent wants to take your children out of the state
I am afraid the other parent will take our children out of the state. What can I do?
If you are afraid that the other parent will take your children away without your consent, you might be able to ask the judge to issue an emergency custody order that says the other parent cannot take the children out of the state, or that the other parent may only have supervised visitation. Please see Can I get temporary emergency custody? for more information as to what factors a judge might consider when deciding whether or not to grant emergency custody. You can also go to the Custody section of your state for more information.
If you have reason to believe that the other parent may try to hide the child from you, you could ask the judge to order the other parent to, deposit money with the court (“post a bond”) that would cover the cost of having to try to locate and get your child back if s/he were taken. If you already have a custody order, you may be able to file to modify the order to include this.
If the other parent takes my children out of state, can s/he be charged with kidnapping?
The answer to this question is very complicated and may depend on many different factors. The criminal laws on parental kidnapping, also known as custodial interference, child concealment, or parental abduction, are different in each state. In some states, it may be against the law to take children out of state only if it violates a custody order or if there is an active custody case pending. In other states, the act of taking the children out of state itself may not be illegal unless the parent conceals (hides) the children from the other parent. Other factors that may be considered are whether the parents are married (and considered to have equal parental rights) or, in the case of unmarried parents, whether the father’s paternity has been legally established. Also, there could be a big difference if the other parent is planning a brief visit out of state or if s/he is planning on moving out of state for a long time.
We strongly suggest talking to a lawyer who specializes in custody matters and/or a prosecutor to find out if the other parent’s actions are legal or not. See our Finding a Lawyer page for information about resources in your state.
How can I keep the other parent from taking my children out of the country?
You may want to immediately contact a lawyer who can help you figure out what you can do to try to prevent an abduction. For a list of legal resources, please see our Finding a Lawyer page.
If you can convince a judge that your concerns that the other parent is going to take the children to another country are “reasonable” based on the facts, you may be able to get the court to intervene. If you are seeking custody of your children, you can ask the judge to include a provision that the non-custodial parent is not allowed to travel with your child out of the country.
If the judge specifically includes language that the child cannot be removed from the U.S., you can enroll in the federal government’s Prevent Abduction program, which would create a “travel alert” to prevent the child from boarding a flight.
If you think that the other parent may try to flee with your child out of the country, you could ask the court to hold your child’s passport, and even possibly the other parent’s passport, so the child cannot leave the country. If your child does not have a passport yet, you may be able to register for the Children’s Passport Issuance Alert Program from the U.S. State Department, which provides the following service:
“Parents may register their U.S. citizen children under the age of 18 in the Children’s Passport Issuance Alert Program (CPIAP), one of the Department of State’s most important tools for preventing international parental child abduction. If a passport application is submitted for a child who is registered in CPIAP, the Department alerts the parent or parents. This program provides parents advance warning of possible plans for international travel with the child.”
1 See the U.S. State Department website
When you want to take your children out of the state
Can I move my children out of the state?
The answer to this question is very complicated and may depend on many different factors. We strongly suggest talking to a lawyer for specific legal advice on your situation. The laws on parental kidnapping also known as custodial interference, child concealment, or parental abduction, are different in each state. In some states, it may be against the law to take children out of state only if it violates a custody order or if there is an active custody case pending. In other states, the act of taking the children out of state itself may not be illegal unless the parent hides (conceals) the children from the other parent. Other factors that may be considered are whether the parents are married and considered to have equal parental rights or, in the case of unmarried parents, whether the father’s paternity has been legally established. Additionally, there may be a big difference between if you are planning a short trip out of state or if you are intended to move out of state long-term.
Again, please talk to a lawyer in the state you are thinking of leaving from who understands custody laws and criminal laws to determine what your state’s laws are and how they might apply to your situation. Please click on Finding a Lawyer.
If you have been charged or fear being charged with parental kidnapping, please let us know and we will try to get you in touch with an organization that can help you.
Depending on your situation, you may also want to apply for temporary emergency custody. Please see Can I get temporary emergency custody? for more information.
Can I get temporary emergency custody before or after moving with my child?
If you are applying in a state where you and the child have recently arrived:
Under a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), you can apply for temporary emergency custody in a state that is not the “home state” of the child if:
- the child is present in the state and either:
- the child has been abandoned; or
- it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.1
Note: Every U.S. state follows the UCCJEA except for Massachusetts and Puerto Rico.2
We strongly recommend that you talk to a lawyer who specializes in domestic violence and custody issues about your situation before leaving the state.
Emergency jurisdiction is a temporary solution designed to protect children who are at risk of abuse or mistreatment. Only the state with “preferred jurisdiction,” usually the home state, can issue or change a long-term custody order. If cases regarding the same child have been filed in two different places, the judges are required to communicate with each other to decide which state will keep the long-term custody case.
If you are applying in the child’s “home state”:
You may request temporary custody (or emergency custody) if you are filing for custody in the child’s “home state,” which is generally the state where the child has lived for the past 6 months consecutively (in a row). Depending on your state, you may be able to request temporary emergency custody as part of a regular custody petition or there may be additional forms you need to file. You may or may not have to prove that the child is in danger in order to get emergency custody. However, you still may not be able to take your child out of the state even if you have temporary custody - it may depend on what the order says as well as other laws such as relocation laws and parental kidnapping laws. If you know you are planning to leave the state, you might want to ask the judge to include permission for you to leave the state in the custody order. It is up to the judge to decide.
1 UCCJEA § 204(a)
2 Current as of August 2021
The other parent is threatening to charge me with parental kidnapping if I leave the state. What can I do?
If you have not left the state yet or you have left but have not been charged with kidnapping, we strongly suggest that you talk to an attorney who specializes in criminal laws in your state. Hopefully, the attorney can advise you on whether or not you are in danger of committing parental kidnapping if you leave and what possible court actions you can take before leaving to do so legally. If you have left, you can ask about what steps you can take to try to avoid being charged with parental kidnapping. Go to our Finding a Lawyer page for legal referrals.
In some states, if you are criminally charged but you are fleeing a pattern of domestic violence or to protect a child, then you may have what is called an “affirmative defense” to the charge of parental kidnapping - but this can depend on your state’s laws and your specific situation. If you have enough evidence to prove this defense, you might be able to avoid being convicted. However, it may not prevent you from being arrested and charged with the crime and you can still suffer all of the consequences that could come with being arrested, such as losing custody. If you are fleeing domestic violence or to protect your children, it may be a good idea to collect evidence of the abuse before you leave, if at all possible, depending on your situation. Evidence of domestic violence or child abuse may include proof of calls to 911, police reports, medical reports, criminal convictions of the batterer, proof that you have 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. Note: In some states, there are specific conditions you need to meet before or immediately after you flee to take advantage of these legal protections. For example, some states require a victim of domestic violence to make a report to law enforcement before leaving the state to avoid being charged with a crime. You can ask an attorney in the state you left from for this information. A few states do not apply their parental kidnapping laws to victims of domestic violence, which is why it is important to speak to a lawyer in your state to understand what the laws in your state require.
If you do take your kids out of the state and are charged with kidnapping, you or your lawyer can contact us and we can try to refer you to experts who can assist you. Be sure to tell us that you have been charged with the crime of kidnapping or custodial interference and from what state.
Again, we strongly recommend that you talk to a lawyer who understands domestic violence, custody and your state’s criminal laws before you make a decision.
Depending on your situation, you may also want to apply for temporary emergency custody. Please see Can I get temporary emergency custody?
If there is a custody order in place, can I take my children out of the state?
The answer to this question is complicated and may depend on many factors such as whether leaving the state violates the other parent’s visitation time, whether the custody order addresses leaving the state, whether the custody case is ongoing, how long you will be away, etc. The state relocation and parental kidnapping laws also apply. To find out how these factors may affect your ability to leave the state with your child, we strongly suggest showing your custody order to an attorney who specializes in custody for specific advice. Go to our Finding a Lawyer page for legal referrals.
Generally, if leaving the state would interfere with the other parent’s visitation with the child or violate any other term of your custody order, you may be at risk of civil contempt charges for violating a custody order and, in some states, at risk of criminal custodial interference charges. Being charged with either may put you at risk of losing custody as well as other penalties. Also, often times when a custody case is pending (ongoing), both parents may be prohibited from removing the child from the state (jurisdiction).
If leaving the state would violate your custody order, you may need to ask the judge to modify the order to allow for your child to leave the state.
If the other parent agrees to allow you to leave the state in violation of the custody order, you may want to ask an attorney whether getting written, notarized permission from the other parent would be enough to protect you from a later accusation of parental kidnapping or violation of the court order or not.
Again, please talk to a lawyer in your state who is familiar with custody and domestic violence.
If there is an ongoing court action involving my children, can I take them out of the state?
If there is some type of court action involving the children, such as divorce, custody, or visitation that is in process, then it may be illegal for you to take the children out of state, even temporarily, without permission from the judge and/or consent of the other parent. Often when one parent files for custody, the court automatically enters orders prohibiting either parent from removing the child from the state. If you have a current court action of this sort, then you may want to ask the judge or your attorney if you can take the children out of the state.
Also, keep in mind that once a court action is started in one state, then that state court generally has jurisdiction (power) over the case until it is finished. If your case is finished and you want to try to change a final custody order in a different state, go to our Changing a final custody order page for more information.