Can the other parent take our child away?

You have sole physical custody if:

• You are an unmarried mother and there is no court order about custody. This is so even if there is paperwork or a court order that says who the father is (“establishing paternity”).
• You are an unmarried parent and you have a court order that says you have sole custody.
• You are a married or divorced parent and you have a court order that gives you sole physical custody.
• You have custody through a 209A restraining order.

You do not have sole physical custody if:

• 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.

The other parent has no right to take or keep your child away from you if you have sole physical custody. 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.”

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

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

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

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.

If the other parent takes or keeps your child when they have no right to, you can try one of the following.

Call the police

The police can:

• Try to find your child and return them to you.
• Contact the National Center for Missing and Exploited Children to find your child.
• File criminal charges against the other parent.

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. Even though the law says that you have sole physical custody without a court order, the police can’t always help you without a court order saying you have custody.

Contact the National Center for Missing and Exploited Children

You can contact the National Center for Missing and Exploited Children. Also see Amber Alert.

File criminal charges

If the police cannot help you, you can file a criminal complaint against the other parent at the criminal clerk's office at the District Court near you. Keep in mind that filing your own criminal complaint is not a quick process. If you are worried about your child’s safety you should start with calling the police.

Go to Probate and Family Court

If you already have a court order about custody, you can:

• 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. You can also file papers telling the court it is an emergency and asking for a hearing as soon as possible.
• File a Petition under Probate and Family Court Writ of Habeas Corpus (General Laws, Chapter 208, section 32). 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 to help you with this kind of case.

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.

If you are married and there has never been a court order about 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.

If you think the other parent might take your child out of the country, you can ask the Probate and Family Court for an order that:

• Forbids the other parent from leaving the United States with your child, and
• Puts your child name on the federal Do Not Depart list.

If your child’s name is on the Do Not Depart list, when the Transportation Security Administration (TSA) scans your child’s passport at the airport, they will get an alert. TSA will not let your child through security.

You should have a lawyer to help you ask for this court order. A lawyer can:

• Show the judge why you need the order,
• Explain the federal Do Not Depart list, and
• Make sure TSA knows your child is on the Do Not Depart list.

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