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

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#1 of 38 Old 08-12-2010, 03:02 PM - Thread Starter
 
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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.
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#2 of 38 Old 08-12-2010, 03:34 PM
 
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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!

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#3 of 38 Old 08-12-2010, 03:34 PM
 
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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.
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#4 of 38 Old 08-12-2010, 04:29 PM
 
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Contact a lawyer and file for an emergency temporary order determining the children's living arrangements, and get a real order ASAP.
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#5 of 38 Old 08-12-2010, 10:03 PM
 
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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.
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#6 of 38 Old 08-12-2010, 10:20 PM
 
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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.

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#7 of 38 Old 08-12-2010, 11:25 PM
 
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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?

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#8 of 38 Old 08-12-2010, 11:34 PM
 
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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.
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#9 of 38 Old 08-13-2010, 03:47 AM - Thread Starter
 
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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.


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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.


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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?
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#10 of 38 Old 08-13-2010, 05:06 AM
 
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[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?

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#11 of 38 Old 08-13-2010, 12:42 PM - Thread Starter
 
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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?
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#12 of 38 Old 08-13-2010, 05:30 PM
 
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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.

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#13 of 38 Old 08-13-2010, 07:59 PM
 
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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.

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#14 of 38 Old 08-13-2010, 09:12 PM
 
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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.
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#15 of 38 Old 08-14-2010, 03:48 PM
 
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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.
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#16 of 38 Old 08-14-2010, 06:13 PM
 
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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.
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#17 of 38 Old 08-14-2010, 07:20 PM - Thread Starter
 
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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.
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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.
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#18 of 38 Old 08-14-2010, 09:16 PM
 
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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
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#19 of 38 Old 08-14-2010, 11:52 PM
 
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Fair enough, but... OP still can likely not legally stop Mom from taking the kid(s).
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#20 of 38 Old 08-15-2010, 02:25 AM
 
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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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#21 of 38 Old 08-15-2010, 12:11 PM
 
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From http://singleparents.about.com/od/le...ed_mothers.htm

"You should be aware, though, that many states either make no presumption of custody based on the birth certificate, or presume joint custody even in cases where the parents were never married."


From http://www.ehow.com/list_6523745_cus...d-parents.html
"In some states, the presumption is that an unmarried mother has sole custody of a child when no father is listed on the birth certificate. In other states, the mother is always presumed to have at least initial custody, regardless of whether the father is listed on the birth certificate. Still other states presume joint custody of the child by default, while a few states make no presumption of custody at all."

From http://www.dearesq.com/which-of-two-...imary-custody/
"In both a marriage, and the instance of an unmarried family where the father has been legally acknowledged as the father, either through DNA testing, a paternity action or, if your state’s laws provide, by being listed on the birth certificate, both parents are equally entitled to having the child with them"

It sounds like you can't make a presumption one way or the other, you need to look at what the laws are in your state.

Here's a link to custody laws in each of the 50 states:
http://singleparents.about.com/od/le...stody_laws.htm

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#22 of 38 Old 08-15-2010, 12:38 PM
 
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It should also be noted that a court would NOT presume that the mother has physical custody in this case, at least after a filing, b/c the FATHER has de facto (factual) custody. This is b/c the children have always resided with him - the faster you get into court the better OP.
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#23 of 38 Old 08-15-2010, 12:42 PM
 
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It should also be noted that a court would NOT presume that the mother has physical custody in this case, at least after a filing, b/c the FATHER has de facto (factual) custody. This is b/c the children have always resided with him - the faster you get into court the better OP.
I agree with you, once it gets to court. In the meantime there is nothing they can do legally. There is no custody order, depending on the state by default it could be the mother or it could be either parent (assuming the father is on the BC). One of the parents should have been responsible, in this case the father since he has physical custody, and filed for custody with the court and avoided all of this. My post was directed specifically at that one comment.
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#24 of 38 Old 08-15-2010, 12:43 PM
 
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It should also be noted that a court would NOT presume that the mother has physical custody in this case, at least after a filing, b/c the FATHER has de facto (factual) custody. This is b/c the children have always resided with him - the faster you get into court the better OP.
Correction - the faster DAD gets into court, the better.

And I don't mean to ride the fact that it has to be Dad, but it does. OP cannot do anything, legally, as she is not a party to the case.
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#25 of 38 Old 08-15-2010, 12:45 PM
 
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From http://singleparents.about.com/od/le...ed_mothers.htm

"You should be aware, though, that many states either make no presumption of custody based on the birth certificate, or presume joint custody even in cases where the parents were never married."


From http://www.ehow.com/list_6523745_cus...d-parents.html
"In some states, the presumption is that an unmarried mother has sole custody of a child when no father is listed on the birth certificate. In other states, the mother is always presumed to have at least initial custody, regardless of whether the father is listed on the birth certificate. Still other states presume joint custody of the child by default, while a few states make no presumption of custody at all."

From http://www.dearesq.com/which-of-two-...imary-custody/
"In both a marriage, and the instance of an unmarried family where the father has been legally acknowledged as the father, either through DNA testing, a paternity action or, if your state’s laws provide, by being listed on the birth certificate, both parents are equally entitled to having the child with them"

It sounds like you can't make a presumption one way or the other, you need to look at what the laws are in your state.

Here's a link to custody laws in each of the 50 states:
http://singleparents.about.com/od/le...stody_laws.htm

Thats why I said in most states, not all. It gets very tricky when the parents aren't married and no one has bothered to get court ordered custody.
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#26 of 38 Old 08-15-2010, 12:46 PM
 
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Correction - the faster DAD gets into court, the better.

And I don't mean to ride the fact that it has to be Dad, but it does. OP cannot do anything, legally, as she is not a party to the case.
Agreed. It has to be the parent of the child. The OP has no say in this case at all.
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#27 of 38 Old 08-15-2010, 01:39 PM - Thread Starter
 
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I agree with you, once it gets to court. In the meantime there is nothing they can do legally. There is no custody order, depending on the state by default it could be the mother or it could be either parent (assuming the father is on the BC). One of the parents should have been responsible, in this case the father since he has physical custody, and filed for custody with the court and avoided all of this. My post was directed specifically at that one comment.
DH is on the BCs of both children. And DH has filed for custody, that is what started this. If he had never filed, she never would of taken them. She doesn't want it on paper that she has to have a set schedule to visit the kids.


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Correction - the faster DAD gets into court, the better.

And I don't mean to ride the fact that it has to be Dad, but it does. OP cannot do anything, legally, as she is not a party to the case.
I know, and he is the one doing everything. But I am helping by doing research and asking advice of people who have been there/done that.
She is trying to keep me from the courtroom too
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#28 of 38 Old 08-15-2010, 03:30 PM
 
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DH is on the BCs of both children. And DH has filed for custody, that is what started this. If he had never filed, she never would of taken them. She doesn't want it on paper that she has to have a set schedule to visit the kids.




I know, and he is the one doing everything. But I am helping by doing research and asking advice of people who have been there/done that.
She is trying to keep me from the courtroom too
Is there a court date? Does your DH's attorney know that she took the kids? Sorry if you already mentioned it. If not, tomorrow first thing I would call the attorney and get an emergency hearing to get temporary custody back to their father until the court date. I am sure any judge would grant that given he has had custody. It is clearly not in the best interest of the children to be taken from their home so abruptly.
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#29 of 38 Old 08-15-2010, 03:38 PM - Thread Starter
 
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Is there a court date? Does your DH's attorney know that she took the kids? Sorry if you already mentioned it. If not, tomorrow first thing I would call the attorney and get an emergency hearing to get temporary custody back to their father until the court date. I am sure any judge would grant that given he has had custody. It is clearly not in the best interest of the children to be taken from their home so abruptly.

We are talking to one tomorrow morning and we are going to file for that. Our initial court date is in October. It isn't in their best interest. All they have ever known is here. DSDs have only met her family once or twice before this.
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#30 of 38 Old 08-16-2010, 01:34 AM
 
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Correction - the faster DAD gets into court, the better.

And I don't mean to ride the fact that it has to be Dad, but it does. OP cannot do anything, legally, as she is not a party to the case.
I'm sorry, I tend to think of married couples as a collective 'you' and did not mean to imply that the OP is the one that needs to be filing. I also noted earlier in the thread that the OP has no right to deny the mother anything since she is a legal stranger.

OP - I'm glad you'll be filing to get emergency temp custody. Did she remove the children AFTER your dh filed originally? If she did I would expect her to at least get a good lecture from the judge since thats really not ok, if not more than that.
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