Parental Kidnapping

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