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Is it legal for the other parent to take our child away?

If you have sole physical custody, it is not legal for the other parent to take your child from you. Sometimes taking your child from you is a crime, like "parental kidnapping."

But if you are married, and there is no court order of custody, it is legal for the other parent to take your child.

Or if you are divorced and the other parent has sole physical custody it is legal for them to take your child.

If you share physical custody, it is complicated. Read your custody order to find out when it is legal for the other parent to take your child.

Physical custody is different from legal custody. If you have sole physical custody, the other parent may not take your child away from you.

After parenting time or visitation the other parent must bring your child back or let you pick up your child. The other parent must obey the parenting time order. If they do not bring your child back or let you pick up your child, even if you share legal custody, they violate the custody order. They may be guilty of a crime like “parental kidnapping” or "custodial interference.”

Massachusetts also has laws about taking your child out of state.

You have sole physical custody

  • You are an unmarried mother and no one has been to court to get an order that says who your child’s father is. This is establishing paternity.
  • You are an unmarried mother and you have a court order that says who the father is, but there is no custody order.
  • You are an unmarried parent and you have a court order that says you have custody.
  • You are a married or divorced parent and you have a court order that gives you sole physical custody.
  • You have a custody order in a 209A Abuse Prevention case.

You do not have sole physical custody

  • You are married and there is no custody order. Then both parents have shared physical custody.
  • There is a court order that says you and the other parent have shared physical custody.

What can I do if the other parent kidnaps my child?

It is a crime for the other parent to

  • take your child from you or
  • keep you child away from you

when they have no right to.

 

The other parent has no right to take or keep your child away from you if you have sole physical custody. After court-ordered parenting time or visitation the other parent must return your child or let you pick up your child.

The other parent has no right to take or keep your child away from you when your child is supposed to be with you, if you have shared physical custody or court-ordered parenting time.

Also, the other parent does not have the right to take or keep your child outside of their parenting or visitation time without your permission.

If the other parent takes or keeps your child when they have no right to, you can:

  • call the police
  • contact the National Center for Missing and Exploited Children
  • file criminal charges
  • file a complaint in the Probate and Family Court
  • contact the U.S. State Department if your child was taken abroad

The police

The police can

 

Note

If you are not married to your child’s father and you do not have a custody order the police may need you to get a custody order from the Probate and Family Court.

The National Center for Missing and Exploited Children

You can contact the National Center for Missing and Exploited Children. See also Amber Alert.

File criminal charges

You can file a criminal complaint against the other parent at the criminal clerk's office at the District Court near you.

You can also call the District Attorney's office to tell them the other parent has kidnapped your child.

Go to Probate and Family Court

You can

  • file a Petition to Obtain Personal Liberty (General Laws, Chapter 248, section 36). This petition asks the Probate and Family Court to order the other parent to bring the child to court. The court can also order the sheriff to bring the other parent to court.

     

    The court does not have a form for this kind of petition. You need a lawyer help you with this kind of case.

  • File a Complaint for Contempt. This complaint asks the Probate and Family Court to order the other parent to obey your custody order. If the court decides the other parent is disobeying the order, it can put them in jail until they do obey it.

     

    Contact the U.S. State Department

    You can contact the U.S. State Department for help if the other parent takes your child out of the country. See U.S. State Department International Parental Child Abduction.

    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 ask the Probate and Family Court for a custody order.

Produced by an AmeriCorps Project of Western Massachusetts Legal Services updated and revised Massachusetts Law Reform Institute
Last Updated July 2017

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