If you have sole physical custody, also known as, the primary custodial parent, you can take your child away from the mother. However, if you do not have primary custody, it can be virtually impossible to take the child away from the mother.
On occasion, when your child or children are taken from you, it can constitute a crime such as unlawful kidnapping. However, when you are married and there are no custody orders from the court, it remains legal for your child or children to be taken by the other parent until a court issues orders to the contrary. Or, in the case where you are divorced, and the mother has been granted primary custody for the child or children it is not appropriate for the other parent to take them. On the other hand, it becomes more complicated when there is joint legal decision making. You would need to consult a copy of the custody order to ascertain when your child or children can be taken by the other parent. It is crucially important to have an understanding that primary custody is markedly different than joint legal decision-making.
Following visitation or parenting time, the other parent has an obligation to return your child or children or let you collect your child or children. Both parents can and should follow their family custody orders insofar as they are formal orders by the court, enforceable by law, and by extension, law enforcement officers if necessary. Should one parent unilaterally elect to refuse return of your children, this act, standing alone, is a violation of a court order which can lead to fines, purge orders, or even confinement should a finding of custodial interference or parental kidnapping be made by the Court.
When You Have Sole Legal Decision Making
- When there is an ongoing 209A Abuse Prevention Case pending and you have a custody order relevant to it.
- When as a parent who is not married, you have a court order that states you have primary custody and parenting time.
- When you are a mother who is not married and there is no custody order, but you are in possession of a court order that states the name of the father of the child or children.
- When you are a mother who is not married, and no party has been to court to obtain an order stating who is the father of the child or children – this is known as establishing paternity.
- When you are a divorced parent, or married, and you are in possession of a court order that states you have primary custody for the child or children.
When You Don’t Have Sole Legal Decision Making
- When you are married and there is not a custody order in place. In that situation physical custody is presumably shared by both parents.
- When there is a court order stating the other parent and you have shared physical custody.
What Can I Do if the Other Parent Decides to Kidnap Our Child or Children?
It is a crime when the other parent takes your child or children or keeps your child or children away from you when they do not have a right to do so.
The other parent does not have the right to keep or take your child or children from you when you have an order of primary or shared custody. When visitation or court-ordered parenting time has reached its conclusion, the other parent must return the child or children to you or allow you to collect the child or children. The other parent does not have the right to keep your child or children away from you or take the child or children away from you when you have courYt-ordered parenting time or shared physical custody. In addition, the other parent has no right to keep your child outside of the scheduled parenting time, nor do they have the right to take the child or children without your permission.
In situations where the other parent keeps or takes your child or children when they do not have the right to do so, you have the following options:
- Contact the police.
- Encourage local prosecutors to file criminal charges.
- Go to the Probate and Family Court to file an enforcement motion.
- If your child or children was taken abroad contact the U.S. State Department.
- Make contact with the National Center for Missing and Exploited Children.
The Police Can Do The Following:
- Attempt to find your child or children and then return your child or children to you.
- Criminal charges can be filed against the other parent in the sole discretion of the local prosecutor’s office.
- Find your missing child or children by working with the National Center for Missing And Exploited Children.
Note: If you do not have a custody order and you are not married to the father of the child or children, the police may require you to go to the Probate and Family Court to obtain a custody order.
File Criminal Charges
- A criminal complaint can be filed against the other parent by going to the District Court near you and filing at the office belonging to the criminal clerk.
- If the other parent has kidnapped your child or children, you can also call the office of the District or County Attorney to let them know.
When You Go to Probate and Family Court
- You may file a petition to establish custody or paternity depending on whether you are married or not married to the other biological parent.
- Your family law petition will address the Juvenile or Family Court which may order the other parent to return the child or children to you. Another option is the court can also give an order to the sheriff so they can forcibly bring the other parent to the court. It will be necessary for a lawyer to assist you with this process.
- File what is known for as “Petitioner for Contempt”. Jail can be a consequence for the other parent if they do not obey the orders if issued.
Contacting the U.S. State Department
Once contacted, the U.S. State Department is able to assist when the other parent takes your child or children outside the boundaries of the United States.
What If the Other Parent Takes our Child but We Are Married and There Is No Court Order of Custody?
In circumstances when there has never been a court order regarding custody and you are married, it is not a crime when the other parent takes your child or children away from your home. Under the law, it is not considered to be kidnapping under the law. To try and get your child or children back, you may be able to obtain the custody order from the Family Court by commencing an action for marital dissolution or legal separation and seeking immediate temporary orders awarding you some level of custody.
How Can I Stop The Other Parent from Taking Our Child Out of the Country?
When you think your child or children may be removed from the country by the other parent, you can request an order from the Probate and Family Court that:
- Places the name of your child or children on the Do Not Depart list maintained by the federal government.
- The other parent can be court ordered and forbidden from departing the United States with your children or child.
When the name of your child or children are not on the Do Not Depart list, an alert will be triggered by the Transport Security Administration, known as the TSA, which routinely scans all passports belonging to your child or children when they are at the airport. When this occurs, the TSA will not allow your child or children to proceed further through the airport. In this case, you will need the skills of a lawyer for help with this particular court order. A lawyer can:
- Demonstrate to the family court judge the need for such an order;
- Ensure the TSA has full knowledge your child or children is on the Do Not Depart list after orders are issued by the family court judge.
Source: “Can the Other Parent Take Our Child Away?” MassLegalHelp, https://www.masslegalhelp.org/domestic-violence/wdwgfh7/other-parent-take-child.
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