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EspañolWhat is parental kidnapping? Which state’s laws apply?
Parental kidnapping is a crime. It might be called different things in different places, such as custodial interference, child concealment, or parental abduction.
Each state and territory has its own definition of the crime. In some states, it may be illegal to take children out of state only if doing so violates a custody order or if there is an active custody case pending. In other states, it might be illegal for a parent to move his/her children anywhere, even within the state, if s/he hides the children’s location from the other parent.
Other factors that may be considered under the law are:
- whether the parents are married and considered to have equal parental rights;
- if the parents aren’t married, whether the father’s paternity has been legally established; or
- if the parent is planning a short trip out of state or if s/he plans to move out of state long-term.
Since the laws can be so different, it’s important to understand which state’s laws apply to your situation. Whether or not you can be charged with parental kidnapping will depend on the laws of the state your children are leaving, not the state that you are moving them to.
If you’d like to read your state’s law, you can go to our Crimes page and choose your state from the drop-down menu. Look for a crime called custodial interference or something similar; there will be a link to the law (statute) itself. As you are reading, please keep in mind that these laws can be easy to misinterpret, especially in times of stress, and so it’s best to have a lawyer explain them to you.
Before you move, please talk to a lawyer who is knowledgeable about parental kidnapping in the state you are thinking of leaving. You can find legal referrals on our Finding a Lawyer page.
If you have been charged with parental kidnapping, or if you are afraid that you might be charged, please contact us on our Email Hotline for referrals to national organizations that might be able to help.
Depending on your situation, you may also want to apply for temporary emergency custody. Please see Can I get temporary emergency custody of my child? for more information.
What state has the power to decide the custody of my child?
Generally, the custody of your child will be decided by a court in your child’s “home state”. A state is generally considered the child’s “home state” if all of the following factors are true:
- It’s where the child has lived with a parent or a person acting as a parent;
- They lived there for at least six months in a row (consecutively); and
- The six-month period took place right before a child custody case was filed.1
For a child less than six months old, the home state is where s/he has lived since birth with a parent or a person acting as a parent.1
However, if you already have a custody order, then the state that issued that order might still have the power to make decisions about your child. This can be the case if at least one parent still lives there, even if the child no longer does.
The reason the child’s home state matters is that it determines which state’s court has the power to decide about custody. When a court or judge has the power to make decisions in a case, this is called having jurisdiction.
Note: Every situation is different. There may be exceptions to these general rules, or other reasons a different state might still have the power to make decisions about your child. Please see If I plan to move to another state, does it matter whether or not we have a custody order in place?
1 UCCJEA § 102(7)
If I need legal advice, do I talk to a criminal defense lawyer or a custody lawyer?
Getting the right kind of lawyer is important for getting good advice.
- If you have been charged with parental kidnapping, or if the other parent threatened you with it, the best lawyer to talk to is a criminal defense attorney in the state you left.
- If you have questions about custody or divorce, talk to a family law attorney. You may need to talk to family lawyers in both states - the one where you used to live with your child, and the one where you live now.
- Sometimes, you might need both a criminal defense lawyer and a family lawyer.
Some lawyers may handle both areas of law, especially in small towns where there might be few lawyers.
No matter who you talk to, it’s important to choose a lawyer who has experience with cases like yours and knows the laws and courts in your area.
If your case involves domestic violence, it’s especially helpful to work with a lawyer who has handled similar cases. We have a list of questions to ask lawyers to help you find someone with the right experience. Keep in mind that this kind of interview and evaluation of a lawyer is more relevant when you’re hiring a private lawyer. If you get a lawyer from a free legal services organization, the lawyer would likely be assigned to you, and you may not get to choose between attorneys. However, legal services attorneys often have a lot of experience with domestic violence cases; if you qualify for assistance, not being able to choose isn’t necessarily a bad thing.
You can find legal referrals on our Finding a Lawyer page. You can also try contacting the Legal Resource Center on Violence Against Women, which can sometimes help find lawyers and provide information for custody cases involving domestic abuse across state lines.
