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EspañolCan a parent be charged with parental kidnapping without leaving the state?
Depending on exactly what your state’s law says, there might be some ways a person could commit parental kidnapping even without leaving the state.
In some states, parental kidnapping occurs only when one parent’s actions violate their custody order by interfering with the other parent’s court-ordered time with the children. If your state has a relocation law, it will say how many miles a parent can move their children from the other parent without asking the judge for permission. It’s important to keep in mind that a judge doesn’t have to grant permission just because a parent asks. S/he might not allow your child to move.
Therefore, if the other parent disagrees with the move, you might need to think about trying to negotiate with the other parent to come up with a parenting time schedule that s/he might accept rather than leaving it up to the judge to decide whether you can relocate. A family law attorney in your state should be able to help you figure out:
- what your options are; and
- how judges in your area are likely to rule if the decision is left up to them.
In other states, parental kidnapping might occur even without a custody order in effect. Laws like this tend to focus on concealment, which means hiding or keeping a child away from a parent. So, if a parent moves the children away from the other parent without telling the other parent where they are, that might be considered parental kidnapping—even within state lines. If your state has a law like this, you may want to ask a local family law attorney about your options. If you have safety concerns, you can ask whether you can keep your address confidential. You can also ask what other protections your state’s laws might offer.
If you’ve already been charged with parental kidnapping – or if you’re worried that you might be – please reach out to a criminal attorney in your state for legal advice. You can find a criminal attorney through the Bar Association’s lawyer referral service on our Finding a Lawyer page.
If I plan to move to another state, does it matter whether or not we have a custody order in place?
If you don’t have a custody order and there are no pending custody cases, whether or not a parent can move may depend on factors such as:
- whether the father’s paternity has been legally established;
- whether the state has a parental kidnapping (custodial interference) law that will apply; and
- other factors.
In many states, a biological mother’s legal relationship to the child is established automatically when the child is born. However, the second parent might have to do something specific to establish their relationship with a child. For example, a biological father or a non-biological parent might have to take steps to establish parentage. If you and the other parent are – or were – legally married, most states consider you to have equal rights to your children. Usually, that means that either of you would have the right to have the children live with you, and that either of you could make decisions about your children’s care.
When parents aren’t married, paternity is commonly established through an affidavit of paternity or a child support order. Once paternity has been legally established, some states’ laws assume both parents have equal rights. However, in other states, the mother may be considered to have custody until a legal case is filed and a custody order says otherwise.
If you know that the other parent has filed a case which involves your children, there could be additional risks to moving out of state without getting permission from the judge - even if there hasn’t been an order entered yet. Please talk to an attorney before you move if that is your situation.
If you already have a custody order, whether you can move to another state with your children may depend on a lot of different things. Some states might have rules about notifying the other parent before you go, or the judge might have written something into your custody order about how to handle moving.
Sometimes, the other parent might agree to allow you and your child to leave the state - even if that violates the custody order. However, if that is your situation, you may want to consult with a family law attorney before you move to find out how to protect yourself in case the other parent later changes his/her mind. For example, you can ask the attorney whether getting written, notarized permission from the other parent might be enough or whether you’d still need to modify your court order.
If the other parent doesn’t agree to your kids moving with you, then you might need to ask a judge for permission to relocate. Some examples of factors a judge might consider include:
- whether leaving the state substantially interferes with the other parent’s visitation time;
- whether the custody order says anything about leaving the state; or
- whether the new location will be better for the child.
It’s important to show your custody order to an attorney who specializes in custody for specific advice. If you can, it’s a good idea to do this before you go.
If you do move to another state with your children without the proper permission, you might be at risk of criminal charges for violating your state’s parental kidnapping law. Also, the other parent might file a petition against you for civil contempt if the move:
- interferes with his/her visitation rights; or
- violates any other term of your custody order.
Either civil contempt or criminal charges could put you at risk of losing custody. You might also be risking going to jail or facing other penalties.
We’re in the middle of a court case involving my children. Can I take them out of state for any amount of time?
If there is any kind of ongoing court case that involves your children, it might affect both parents’ ability to take their kids across state lines for any amount of time. This is because at the start of a case involving children, many judges automatically enter orders prohibiting both parents from taking children out of the state. The order might say that the parents can’t “remove the children from the jurisdiction.”
Even if you are only leaving for a short time, it still might violate your court order if your children leave the state without the judge’s permission. You may want to ask the judge or your attorney if you can take your children out of the state before leaving.
Common examples of court actions involving children are cases for divorce or custody and visitation. If you filed for a protective order and requested temporary custody, that might count as well.
A case would usually be considered “ongoing” if:
- either parent filed a petition, even if you haven’t had a court date yet;
- you have already been to court at least once, and there are more court dates scheduled or expected in the future, even if you haven’t been to court recently; or
- you have already had a trial or hearing, but the judge hasn’t entered a final order yet.
How can I keep the other parent from moving out of the state or country with our children?
If you have reason to believe that the other parent will move your children out of the state or country without your consent, you might be able to ask the judge to issue an emergency custody order. In this order, the judge might include various measures to ensure that the children are kept in the state. For example, the judge may:
- prohibit either parent from taking the children out of the state;
- grant you temporary custody; or
- place temporary restrictions on the other parent’s contact with the children.
If you believe that the other parent may try to hide your children from you, you could ask the judge to order him/her to deposit money with the court, which is called posting a bond. If your children were taken, the bond money could cover the costs of trying to find them and getting them back.
If you already have a custody order, you may be able to file to change (modify) the order to include any of the above protections.
Note: If the judge specifically orders that your child cannot leave the U.S., you can enroll in the federal government’s Prevent Abduction Program. This would create a “travel alert” to keep your child from boarding a flight.1 You could also ask the court to hold your child’s passport. In some situations, the judge might agree to hold the other parent’s passport too. 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.
You may want to talk to an attorney about your options. You can also go to our Custody section and choose your state to see if we have any more information.
1 See the U.S. State Department website
If I’m a victim of domestic violence, is that a defense to being charged with parental kidnapping?
The parental kidnapping laws that apply will be the laws of the state you’re leaving, not the state you’re going to. If you are charged with parental kidnapping, some states might offer what is called an “affirmative defense” to victims of domestic violence. This defense is generally intended to protect those who are escaping a pattern of domestic violence or trying to protect a child. Whether or not you can use this defense depends on your state’s laws and your situation. If you have enough evidence to prove this defense, you might not get convicted of parental kidnapping.
However, having a defense available may not prevent you from being arrested and charged with the crime. You might still suffer all of the consequences that could come with being arrested, which may include losing custody or going to jail. Even if you are eventually found “not guilty,” you might still have to go through the expense and stress of a criminal trial, and you might not be able to get custody back.
To take advantage of the legal protections offered by an affirmative defense, some states require you to meet specific conditions. You usually need to do these things before or immediately after you flee. For example, to avoid being charged with a crime, some states require a domestic violence victim to make a report to law enforcement before leaving the state. This is why it’s so important to speak to a lawyer in the state you want to leave - so that you understand what the laws in that state require. In order to try to avoid criminal charges, it is important to talk to a criminal law attorney or a custody attorney who is familiar with parental kidnapping in the state you hope to leave. Go to our Finding a Lawyer page for legal referrals.
If you haven’t left the state yet, hopefully, the attorney can tell you whether or not you are in danger of committing parental kidnapping. You can also ask how to leave legally, and if there are any steps you can take to protect yourself before you go.
If you have already left, you can ask about whether or not you might have broken the state’s parental kidnapping law. You can also ask if there are any steps you can take to try to avoid being charged with a crime now.
If you are fleeing abuse, it may be a good idea to collect as much evidence as you can before you leave. You can see examples of the types of evidence that can be helpful in our Preparing for Court – By Yourself section. Hopefully, you can do that in a way that won’t put you in greater danger.
