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Can the mother take the children out of state? Parental Kidnapping? EDIT: Social Worker

post #1 of 38
Thread Starter 
DH and 2DSDs (4 years and 2 years) mother were never married. But for the children's entire lives they have lived with DH and mother would do visitation. Mother doesn't even live in the same state, does not help support them. They did the scheduling on their own though it has never went well. DH decided to go for custody and to have the courts set a visitation schedule for the mother to stop all the conflicts it created. And the 2DSDs need a schedule, not a come whenever I feel like seeing them type of thing. They children have never been with the mother longer than 2-3 days and has said before she can't handle them for longer than that, and they have never been away from home longer than those 2-3 days.

Now, the mother talked to a lawyer who told her she has sole custody until court says otherwise and should be allowed to do whatever she wants. After setting up a schedule to see the 2DSDs for a few hours yesterday and stating she wouldn't take them overnight, informs DH that she is taking them back to her state and they will be back 'sometime next weekend'. She will have them for almost 2 weeks. She did not/would not inform DH of were they will be either.

As they were unmarried I do know that that law is real. But is there a law against that if this has been the set up schedule their entire lives? They are young and that is not in the 2DSDs best interest.

We have contacted a few lawyers and waiting for a response.
post #2 of 38
Unfortunately without some kind of guidelines such as a custody agreement and schedule, I don't think there's anything you can do. Since she is their mother and there is nothing stating that she CAN'T take them out of state or isn't supposed to have them at this set time, I can't imagine kidnapping charges could be issued. This sounds like a horrible situation. I would definitely get a court ordered custody/child support agreement issued ASAP. Good luck!
post #3 of 38
Where I live an unmarried woman has full custody unless otherwise ruled.

I was thinking about moving and my attorney said that once I kept the court order (giving ex visitation twice a week) no one had any say in it.


IF you do not have a court order giving him visitation or w/e then she isn't violating anything.

Obviously it doesn't make sense that someone who has not had the kids for more than 2-3 days should be able to take them out of the home in which they live without permission BUT the state has no way of knowing your circumstances until you let them know.

If I would call/go into social services and not give up until they agreed to at least call her and advise that it might not be best to take kids away from their primary careprovider for that long the first time. even though he may not legally be the PCP if that is indeed what he is, then they should listen.
post #4 of 38
Contact a lawyer and file for an emergency temporary order determining the children's living arrangements, and get a real order ASAP.
post #5 of 38
This happened to us recently. My step-son's mother appeared out of nowhere and took him seven hours away (in another state) after not seeing him in six months. Prior to that, she had only visited with him once or so each week. We tried calling police, but they said there was nothing they could do because she is his mother. Due to the holiday, legal action was nearly impossible for almost two weeks. We were unable to get an emergency order because the judge didn't feel he was in danger. It wasn't considered kidnapping because there was no court order. It took us seven months to get court ordered custody. My advice would be to talk to a lawyer asap and document everything.
post #6 of 38
Quote:
Originally Posted by jstpmm View Post
Now, the mother talked to a lawyer who told her she has sole custody until court says otherwise
That's not true. In the absence of court-ordered custody, possession is 9/10 of the law, as they say. If she filed for custody while the children were with her - and if she planned to testify that living with her was their status quo and your DH had no way to prove otherwise - then the court would certainly see her as the de facto custodial parent, esp. since she's the female one. But presumably your DH has plenty of people who can establish that the girls have always lived with him, in your state. The court should not look kindly on her taking them out of the situation they were accustomed to, without the knowledge or consent of their primary caregiver.
post #7 of 38
I would not let her take the children for visitation until custody and court ordered visitation are established. Do not let her take the kids. Let her visit at your home. Do not let them leave with her. It's that simple. Have you guys been documenting everything?
post #8 of 38
In some states if the parents weren't married the mother is considered the sole custodian. You have two major things against you. No divorce decree and no custody decree. In my state, ca, the divorce decree prohibits a parent from leaving the state with children without courts approval and its the custody decree that would've stopped the mom from just leaving. Technically and legally she has every right. Your husband can go file ex parte custody tomorrow a.m. however it won't be considered kidnapping but he will be able to establish custody and jurisdiction which he better do before the mom tries. Good luck.
post #9 of 38
Thread Starter 
Quote:
Originally Posted by Jeannine View Post
That's not true. In the absence of court-ordered custody, possession is 9/10 of the law, as they say. If she filed for custody while the children were with her - and if she planned to testify that living with her was their status quo and your DH had no way to prove otherwise - then the court would certainly see her as the de facto custodial parent, esp. since she's the female one. But presumably your DH has plenty of people who can establish that the girls have always lived with him, in your state. The court should not look kindly on her taking them out of the situation they were accustomed to, without the knowledge or consent of their primary caregiver.
Yes, documenting everything. And the older child attended school here last year as well as being enrolled this year. Doctors appts ect all here with us. She's never done anything to support them.


Quote:
Originally Posted by Lilypie32 View Post
I would not let her take the children for visitation until custody and court ordered visitation are established. Do not let her take the kids. Let her visit at your home. Do not let them leave with her. It's that simple. Have you guys been documenting everything?
That is how we feel now! We just hope she'll bring them back like she claims she will.


Quote:
Originally Posted by Avani View Post
In some states if the parents weren't married the mother is considered the sole custodian. You have two major things against you. No divorce decree and no custody decree. In my state, ca, the divorce decree prohibits a parent from leaving the state with children without courts approval and its the custody decree that would've stopped the mom from just leaving. Technically and legally she has every right. Your husband can go file ex parte custody tomorrow a.m. however it won't be considered kidnapping but he will be able to establish custody and jurisdiction which he better do before the mom tries. Good luck.
DH has filed for custody, our court date is in October. Because we already have one set, she can't file for custody in her state right?
post #10 of 38
[QUOTE=jstpmm;15731110




DH has filed for custody, our court date is in October. Because we already have one set, she can't file for custody in her state right?[/QUOTE]

Yes she can file as she wishes. Anything can happen to your filing. You can cancel it, postpone it, etc. Of course when you go to court make them aware if she has filed anything, but there is nothing to prevent the mom from filing. And in all fairness, how would she know that you filed in your state until she is served papers?
post #11 of 38
Thread Starter 
Quote:
Originally Posted by zebra15 View Post
Yes she can file as she wishes. Anything can happen to your filing. You can cancel it, postpone it, etc. Of course when you go to court make them aware if she has filed anything, but there is nothing to prevent the mom from filing. And in all fairness, how would she know that you filed in your state until she is served papers?
She's been served already. Since she has been served does that prevent her from filing for custody in her state?
post #12 of 38
Quote:
Originally Posted by jstpmm View Post
She's been served already. Since she has been served does that prevent her from filing for custody in her state?
I'm not a lawyer, I've just been forced to play one in my family quite a bit...

I do believe that filing, serving her and having a set court date in the county/state where the children have been residing and attending school - and doing all of this BEFORE the mother filed anything in her state - establishes your county/state as the one with jurisdiction over their custody. Therefore, anything she might file in a different jurisdiction, from this point forward, could/should be dismissed. That is not to say you should ignore it! God forbid, you don't want the confusion of an ex parte ruling in another court, because you failed to respond to or show up for something she filed!!!

But I believe that even if she had filed first, your DH would have been able to transfer jurisdiction to your state, by demonstrating to the court in her state that he has been the constant primary caregiver and that the girls have never resided with their mother, until she removed them from your state without notice.

Please update us (or update me in a PM). If there are courts in the US giving temporary sole custody to mothers, of young children who have only ever resided with or been supported by their fathers, that is gross sexism and I very much want to know about it! It should not be ignored or tolerated.
post #13 of 38
When we filed for custody in CA, the act of filing put in place a temporary order restricting either parent from traveling out of state with the child without the other parent's permission. Since your husband has already filed I would look and see if that is the case where you are.
post #14 of 38
Quote:
Originally Posted by Lilypie32 View Post
I would not let her take the children for visitation until custody and court ordered visitation are established. Do not let her take the kids. Let her visit at your home. Do not let them leave with her. It's that simple. Have you guys been documenting everything?
Actually, OP would have absolutely no right to do so. Regardless of the situation, she is a legal stranger and cannot deny Mom her children.

As for the question of custody and what Dad can do? Since they were not married - was he ever actually, *legally* determined to be the father? If not, he cannot stop her from removing the children, either.
post #15 of 38
Quote:
Originally Posted by Jeannine View Post
That's not true. In the absence of court-ordered custody, possession is 9/10 of the law, as they say. If she filed for custody while the children were with her - and if she planned to testify that living with her was their status quo and your DH had no way to prove otherwise - then the court would certainly see her as the de facto custodial parent, esp. since she's the female one. But presumably your DH has plenty of people who can establish that the girls have always lived with him, in your state. The court should not look kindly on her taking them out of the situation they were accustomed to, without the knowledge or consent of their primary caregiver.
Forum crashing as an unmarried mother. Usually an unmarried mother has sole legal and physical custody. In most states until paternity has been established and the father legitimates the child, he has no legal rights to the child at all. Once that has been done, he still has to sue for custody which it sounds like they are in the process of doing but the mother BY DEFAULT has sole legal and physical custody.

In their situation, the courts would probably grant the father custody since he is the primary caregiver but that has not yet been done. Since the mother has sole legal and physical custody, she cannot be legally charged with parental kidnapping.
post #16 of 38
Question: Was the father present at the birth? If so, he may have signed an affidavit of paternity which takes care of the proving paternity problem. I'm not sure what state you live in, but once paternity is proven, (at least in theory) fathers have as much rights as mothers.
post #17 of 38
Thread Starter 
Quote:
Originally Posted by mtiger View Post
Actually, OP would have absolutely no right to do so. Regardless of the situation, she is a legal stranger and cannot deny Mom her children.

As for the question of custody and what Dad can do? Since they were not married - was he ever actually, *legally* determined to be the father? If not, he cannot stop her from removing the children, either.
Quote:
Originally Posted by FourTrees View Post
Question: Was the father present at the birth? If so, he may have signed an affidavit of paternity which takes care of the proving paternity problem. I'm not sure what state you live in, but once paternity is proven, (at least in theory) fathers have as much rights as mothers.

He did sign ROPs for both kids and is listed as father on both BCs.
post #18 of 38
Quote:
Originally Posted by Minxie View Post
Forum crashing as an unmarried mother. Usually an unmarried mother has sole legal and physical custody. In most states until paternity has been established and the father legitimates the child, he has no legal rights to the child at all. Once that has been done, he still has to sue for custody which it sounds like they are in the process of doing but the mother BY DEFAULT has sole legal and physical custody.

In their situation, the courts would probably grant the father custody since he is the primary caregiver but that has not yet been done. Since the mother has sole legal and physical custody, she cannot be legally charged with parental kidnapping.
This completely depends on the STATE. DO NOT assume this - ask your lawyer. In my state this is NOT the case - and my ex and I both had equal rights to our son even though we were never married or had any legal relationship - but my ex has always been on ds's BC.

ETA - I know that the above is true in some states, I'm just making the point that it is not in every state. nak
post #19 of 38
Fair enough, but... OP still can likely not legally stop Mom from taking the kid(s).
post #20 of 38
Quote:
Originally Posted by mtiger View Post
Fair enough, but... OP still can likely not legally stop Mom from taking the kid(s).
You're absolutely right about that. Once there is a court order she and her dh will have that ability (on a limited basis depending on what the court order actually has in it), and when the mom threatens to remove the children from the state, etc. Laws vary so much from state to state, especially in family law which is so dependent on factual circumstances, that the absolute best bet is to ask a lawyer in your area who can tell you what to expect.
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