Disclaimer: Please note that this article is not intended to be legal advice. You should always talk to an attorney who is skilled at family law about your unique situation.
As the primary custodial parent, you have sole physical custody, you may remove your child(ren) from the mother. Nevertheless, if you don’t have primary custody, it is practically impossible to remove the child(ren) from the mother.
Occasionally, if your child(ren) are taken from you, it can amount to a crime like unlawful kidnapping. Despite that, when you’re married and there aren’t any custody court orders, it stays legal for your child(ren) to be taken by the other prior to a court issuing orders on the contrary. Additionally, if you’re divorced, and the mother has primary custody of the child(ren) it isn’t suitable for the other parent to take the child(ren). Instead, it becomes more complex when there’s mutual legal decision-making. You’d need to refer to a copy of the custody order to determine when your child(ren) may be taken by the other. It’s vitally important to know that primary custody is significantly different than mutual legal decision-making.
After parenting or visitation time, the other parent has the responsibility to give your child(ren) back to you or let you pick them up. Each parent can and are obligated to follow their family custody orders inasmuch as they’re legal orders by the courts, enforced by law, and police officers when required. If one parent decides to refuse to give back your child(ren), doing so, by itself, violates the court order that may lead to them being fined, cleanse orders, or even imprisonment should an examination of custodial hindrance or parental kidnapping be determined by the Courts.
When You Have Sole Legal Decision-Making
- When there’s a current 209A Abuse Prevention Case unresolved and you have a custody order related to it.
- As a parent that isn’t married, when you have a court order declaring that you have primary parenting and custody time.
- As a mother who isn’t married, and no party has gone to court to acquire an order declaring who is the father of the child(ren).
- As a mother, that isn’t married and there is no custody order, but you have court order establishing paternity and specifies the name of the father of the child(ren).
- As a divorced parent, or married, and you have a court order declaring that you have primary custody of the child(ren).
When You Do Not Have Sole Legal Decision-Making
- If you are married and there isn’t a custody order established. Under the circumstances, physical custody is likely shared by both parents.
- When there is a court order declaring that you and other parent have mutual physical custody.
What Can I Do if the Other Parent Kidnaps Our Child(ren)?
It’s a crime if the other parent takes the child(ren) or keeps them away from you when they don’t have the right to do it.
The other parent doesn’t have the right to take or keep your child(ren) from you while you have an order of shared or primary custody. As court ordered parenting time or visitation reaches its conclusion, the other parent must give back the child(ren) or allowing you to pick up the child(ren). If you have court ordered parenting time or shared physical custody, the other parent doesn’t have the right to keep your child(ren) from you or take the child(ren) from you. Additionally, the other parent doesn’t have the right to keep them outside of the arranged parenting time, nor do they have the right to take the child(ren) without your consent.
Under circumstances, whereas the other parent takes or keeps your child(ren) when they don’t have the right to, you do have options:
- Get a hold of local police.
- Urge local prosecutors to file criminal charges.
- Visit Probate and Family Court to file a motion for enforcement.
- If your child(ren) were taken overseas get a hold of the U.S. State Department.
- Get a hold of the National Center for Missing and Exploited Children.
The Police Can Do The Following:
- Try to find your child(ren) and give them to you.
- Locate your missing child(ren) by working alongside the National Center for Missing and Exploited Children.
- Criminal charges may be filed towards the other parent at the discretion of your local prosecutor’s office.
Note: If you don’t have a custody order and you aren’t married to the father of them, the local police might require you to visit the Probate and Family Court to acquire a custody order.
File Criminal Charges
- When the other parent kidnapped your child(ren), it’s advisable to let the District or County Attorney know.
- A criminal complaint may be filed towards the other parent by going to your local District Court and filing at the criminal clerk’s office.
When You Go to Probate and Family Court
- You can file a request to establish paternity or custody depending on if you are married or not to the other biological parent.
- Your family law request addresses the Juvenile or Family Court which orders the other parent to give your child(ren) back to you. Additionally, the court may also give an order to the sheriff so they can bring the other parent to court by force. You will need a lawyer to help you with this.
- File what is called a “Petitioner for Contempt”. Jail time can be a result for the other parent if they don’t comply with the orders that are issued.
Contacting the U.S. State Department
When notified, the U.S. State Department can assist you if the other parent takes your child(ren) outside the United States boundaries.
What If There Is No Court Order of Custody and the Other Parent Takes our Child(ren) but We’re Married?
In the situation when there’s never been a court order concerning custody and you’re married, it isn’t a crime if the other parent takes the child(ren) from the home. Under the law, it isn’t considered to be kidnapping. To attempt to get your child(ren) back, you might be able to acquire the custody order from the Family Court by initializing an action for divorce or legal separation and pursuing immediate temporary orders granting you some degree of custody.
Is There a Way I Can Stop the Other Parent from Taking the Child(ren) Out of the United States?
If you think your child(ren) might be taken out of the country by the other parent, you can petition an order from the Probate and Family Court that:
- Puts the name(s) of your child(ren) on the Do Not Depart listing managed by the federal government.
- The other parent may be court ordered and prohibited from leaving the United States with your child(ren).
If the name(s) of your child(ren) aren’t on the Do Not Depart listing, an alert will be tripped by the Transport Security Administration (TSA), which frequently scans every passport belonging to your child(ren) when they’re at the airport. When this happens, the TSA won’t permit your child(ren) to travel further throughout the airport. In this case, you’ll need the knowledge of a lawyer for assistance with this specific court order. The lawyer can:
- Demonstrate to the family court judge the requirement for such an order;
- Guarantee the TSA has full awareness that your child(ren) are on the Do Not Depart listing after orders have been issued by a family court judge.
- Canterbury Law Group, and Canterbury Law Group. “Can A Father Take A Child Away From The Mother? – Canterbury Law.” Canterbury Law Group, 18 Sept. 2019, canterburylawgroup.com/can-a-father-take-a-child-away-from-the-mother/
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