Family Law

Abduction of a Child in Divorce

A parent who is unhappy with a court's custody order might be tempted to take matters into his or her own hands by taking the child and moving to another state, hoping to receive a different ruling. Federal law prevents this. State courts are not permitted to reverse custody orders established in other states. But this doesn't stop some parents from trying.

Your Child's Home State Has Jurisdiction over Custody

When parents who have children file for divorce, they must complete and include an affidavit. The affidavit tells the court where the child has lived for the last several years. This is usually the state where the parent is filing for divorce, and this is the only state that can make custody decisions.

Parental Abduction Affects Custody Decisions

If one parent abducts a child after the other has filed for divorce, the law will do its best to find and return the child to the home state that has jurisdiction, the right to make custody orders. In most states, judges can consider interference with the relationship between a child and the other parent when making custody decisions. The act of abduction usually guarantees that a court in the home state will not give custody to the parent who took the child and fled.

Parental Abduction as Child Abuse

Abruptly cutting off the relationship between a child and parent by taking the child and moving out of the state or the country may be considered child abuse. Even with mental health counseling (and especially without), the sudden loss of a parent can have a serious effect on the child for years. Such abuse will factor into custody decisions made as part of the divorce process.

Parental Abduction is a Crime

In some states, parental abduction of a child is considered a crime. If the parent does not return the child voluntarily, it can be a felony. Taking a child across state lines involves the federal government and can result in charges of kidnapping.

An Exception Exists In Cases of Danger

The situation changes if you feel your child is in danger and you leave because you want to protect the child. Even federal law recognizes that this is sometimes necessary. You would most likely need the help of an attorney to prove your case in a way that will stand up in court.

International Child Abduction

The worst kind of parental abduction occurs when a parent leaves the country with the child. In some cases, international law protects against this as well. When this happens, some countries have a pact to return a child to the child's home country.

A Divorce Lawyer Can Help

The law surrounding divorce, child custody and parental abduction is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact a family law lawyer.

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This article was verified by:
Dominic J. Baccarella | May 06, 2015
4144 N. Armenia Avenue, Suite 220
(813) 254-8998 View Profile

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