Parental Kidnapping

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.