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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 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 plan to move out of state long-term.
Please talk to a lawyer in the state you are thinking of leaving from who is knowledgeable about parental kidnapping so s/he can advise you on your state’s laws and how they might apply to your situation. You can find legal referrals on our Finding a Lawyer page.
If you have been charged or fear being charged with parental kidnapping, go to our National Organizations - Abuse Victims Charged with Crimes section for possible help.
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.
If there is a custody order in place, can I take my children out of the state?
Whether someone can leave the state 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 may also apply. To find out how these factors may affect your ability to leave the state with your child, it’s important to show your custody order to an attorney who specializes in custody for specific advice. Go to our Finding a Lawyer page for legal referrals.
If leaving the state would interfere with the other parent’s visitation rights or violate any other term of your custody order, the other parent might file a petition against you for civil contempt. You might also be at risk of criminal custodial interference charges. Either may put you at risk of losing custody as well as other penalties. If leaving the state would violate your custody order, you may need to ask the judge to change (modify) the order to allow for your child to leave the state.
Alternatively, 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 an accusation of parental kidnapping or violation of the court order.
Also, often times when a custody case is ongoing (pending), both parents may be prohibited from removing the child from the state.
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 in process involving the children, such as divorce, custody, or visitation, then it may be illegal for you to take the children out of state, even temporarily, without permission from the judge. It’s common that 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 power (jurisdiction) 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.
Can I get temporary emergency custody before or after moving with my child?
The standard for getting emergency custody may be different depending on whether you are filing in the child’s home state or not. A child’s “home state” is defined as the state where the child has lived with a parent for at least six months in a row (consecutively) right before a child custody case is filed. For a child under six months old, the home state is where the child has lived since birth.1
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 experiencing or being threatened with mistreatment or abuse.2
Note: Every U.S. state follows the UCCJEA except for Massachusetts and Puerto Rico.3
It is important to talk to a lawyer who specializes in domestic violence and custody about your situation before leaving the state.
If you are applying in the child’s home state:
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 any relocation and parental kidnapping laws in your state. 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 § 102(7)
2 UCCJEA § 204(a)
3 Current as of June 2024
If I get temporary emergency custody in a state where I have just arrived, how long will the custody order last?
Usually, a court only has power (jurisdiction) to make custody decisions over a child who has lived in that state for the past six months. When a court makes an emergency custody order, the court is using “emergency jurisdiction” to issue the temporary order. Therefore, the order is supposed to last for a short time only until the home state, known as the state with “preferred jurisdiction,” can issue or change a long-term custody order. The judge is required to include the length of time the order will remain in effect in order to allow the parent to see an order from the preferred jurisdiction. 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.1
1 UCCJEA § 204
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, it is important to talk to an attorney who specializes in criminal law 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 abuse against you or your children, it may be a good idea to collect evidence of the abuse before you leave, if at all possible. 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, go to our National Organizations - Abuse Victims Charged with Crimes section for possible help.
Depending on your situation, you may also want to apply for temporary emergency custody. For more information, see Can I get temporary emergency custody?
