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 custody 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 (such as applying for custody perhaps). 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. Some 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. A lawyer can help you put together the necessary evidence if you must leave the state.
Depending on your situation, you may also want to apply for temporary emergency custody. Please see Can I get temporary emergency custody?