The other parent is threatening to take my child. Can he do that?
It is a crime for the other parent to take your child from you if you have physical custody. The crime is called "parental kidnapping."
You have physical custody if:
- you are an unmarried mother and no one has been to court to "establish paternity" (legally say who the father is); or
- you are an unmarried mother and there is a paternity finding (a court order saying who the father is) but no court order of custody. For example, if the Department of Revenue brought a case for child support, the judge probably decided paternity (who the father is) but probably did not decide custody. In this case, you still have custody;or
- you are an unmarried parent and you have a court order giving you custody; or
- you are a married or divorced parent and you have a court order giving you custody. The custody order can be part of a divorce, separate support, complaint for custody, or 209A Protective Order.
- If you are married and there is no court order of custody, then both parents have physical custody. It is not a crime for the other parent to leave the home with the child if you are married to him and there is no court order of custody.
Legal custody is different from physical custody. If a court gave you sole physical custody, then the other parent cannot take the child from your home outside his visitation hours. It does not matter if he has joint legal custody. If he does not have physical custody and he tries to take your child, then he may be guilty of “parental kidnapping” or "custodial interference." If you have court-ordered physical custody, and the other parent takes your child without your permission when it is not his visitation time, or if he refuses to return your child after visitation, this may be kidnapping.
What can I do if the other parent kidnaps my child?
If you are the only parent with physical custody of your child, it is kidnapping for the other parent to take your child outside of his visiting hours without your permission. If the other parent kidnaps your child, you can do any or all of the following things:
- Call the police. The police can file criminal charges. The police can also activate the Amber Alert system, to help find missing children.
If you are an unmarried mother without a court order, the police may not want to do anything, even though the law says you have physical custody without a court order. You may need to go to Probate and Family Court to get a custody order that you can show the police to get them to help.
- File criminal charges
Call the police and ask them to file criminal charges, or you can do it yourself at the criminal clerk's office at the District Court near you. You should also call the District Attorney's office to tell them the other parent has kidnapped your child.
- Go to Probate and Family Court
Ask the Probate and Family Court for a "Writ of Ne Exeat" or a "Writ of Habeas Corpus." These are court orders that say
- the other parent cannot leave the state with your child, and
- that the child must be brought to the court.
- File a Complaint for Contempt
against the other parent if you have a custody order from the court and the other parent violated it. There will be a hearing and the other parent will have to tell the judge why he violated the custody order.The judge may write a new order about where your child should live or change the rules about visiting.
- Call your local legal services program
or call a private lawyer to see if they can help.
- You can try to contact the local media
Contact the newspaper, TV, radio stations and/or government officials - your mayor, state representative, or local congressional office, to let more people know your child has been kidnapped. and to get help finding your child. The National Center for Missing and Exploited Children is also helpful. Their number is 1-800-843-5678.
- You can contact the U.S. Department of State - Office of Children's Issues
for help if the other parent has taken your child to another country.
What if the other parent takes my child but we are married and there is no court order of custody?
If you are married and there has never been a court order on custody, then it is not a crime for the other parent to take your child from your home. It is not kidnapping under the law.
But you can still try to get your child back. You can:
- Go to Probate and Family Court and file a Complaint for Custody; and
- When you file the Complaint for Custody, also file an "ex parte emergency Motion for Temporary Custody" to get your child back. "Ex parte" means you testify to the judge by yourself without waiting for a hearing that the other parent can attend. Tell the clerk and the judge that your motion is “ex parte” because of the emergency of the other parent taking your child.If the judge gives you an order of temporary custody, the police will try to find the other parent and serve him with a copy of the order. The other parent will have to give your child back to you. You will then have to go to another hearing, later on. At the hearing, the court will decide what to do next about custody.
Produced by an AmeriCorps Project of Western Massachusetts Legal Services updated and revised Massachusetts Law Reform Institute Last updated October 2009