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EspañolIf the other parent takes my child out of state without my permission, can s/he be charged with kidnapping?
Whether or not the other parent can legally take your child out of state against your wishes likely depends on many factors, such as:
- how long the parent is going to be away;
- if you have a custody order and what it says about leaving the state; and
- whether or not the other parent is giving you all of the information about where the child will be and allowing you contact with the child.
Unless your custody order specifically says a parent cannot leave the state with the child, the other parent may be able to do so during his/her time with the child. If you are in the middle of a custody case, often times, the judge will order that neither parent remove the child from the state (jurisdiction) while the case is pending.
Under Oklahoma law, it can be illegal for anyone, including parents, to hide (conceal) a child under the age of 16 from anyone who has custodial rights over a child or to take the child out of state. Taking the child must be done intentionally to cause harm or distress (maliciously), using force (forcibly), or based on a lie or deception (fraudulently).1 This crime is called “child stealing,” and it is separate from the crimes of kidnapping or kidnapping for the purpose of extortion.
1 21 O.S. § 891; see Wilkins v. State, 985 P.2d 184 (Ct of Crim App 1999)
Can I get temporary custody as part of a protective order against the other parent?
A protective order cannot determine child custody, visitation, or child support. The exception to this is that a judge can temporarily suspend or change (modify) an existing child visitation order in a protective order to protect against threats of abuse or physical violence by the abuser, or against a threat to violate a custody order.1 Unless the protective order covers the child too, the judge will usually grant exceptions to the other parent for visitation and communication with the child or about the child.
It is important to know that having a protective order against the other parent alone does not necessarily give you custody or suspend the other parent’s custodial or visitation rights unless the order specifically says that it does.
To get legal help and advice on your options, please contact a lawyer. To find one in your area, go to our Oklahoma Finding a Lawyer page.
1 22 O.S. § 60.4(I)(1)
Can I get temporary emergency custody without a protective order?
If you file a motion for an emergency custody hearing in Oklahoma, you must include either:
- an independent report, such as a police report or a report from the Department of Human Services, that shows that the child is in a situation that endangers his/her safety and would likely experience permanent (irreversible) harm if that situation continues; or
- a notarized affidavit from someone with personal knowledge that the child is in a situation that endangers his/her safety and would likely cause permanent harm to the child if the emergency custody is not granted.1
The judge is supposed to hold a hearing within 72 hours of when you file the motion. If the judge fails to hold the hearing within this time period, you can bring the motion to the presiding judge of the judicial district, who is supposed to conduct an emergency custody hearing within 24 hours.1
You may want to consult a lawyer before filing for emergency custody. To find one in your area, go to our Oklahoma Finding a Lawyer page.
1 43 O.S. § 107.4(A)
