When a marriage ends, one of hardest, inevitable outcomes is that the parents will have to share the children. Even worse, some parents use the children as leverage against the other parent. This blurs the line between parenting and war with the other parent, leaving many moms to wonder whether their husband can take their child without their permission.
Unless there is a court order that says otherwise, each parent has the equal right to parent the child. This means taking the child to live with them and for other usual parenting activities.
However, parents do not have the right to take a child with the intent to deprive the other parent of contact. That is called parental kidnapping and is a felony. Parental kidnapping is marked with secrecy and complete alienation from the parent.
Read on to get a more complete perspective regarding your options when your husband takes your child. We address the federal laws that prohibit parental kidnapping and the divorce procedures that may prevent it from happening.
Disclaimer: This article is for informational and educational purposes only. It is not a substitute for legal advice. Please consult a licensed attorney in your state if you have questions or believe you have a legal situation.
Can My Husband Take My Child Without My Permission?
When the parents do not have a custody order regarding their child, each parent has the equal right to parent the child. This includes taking the child on trips and even relocating with a child.
Parents who want to prevent this from happening should begin their divorce or custody case right away. Once you initiate a divorce or custody case, you have additional protections that we discuss in more detail below.
Even outside the confines of divorce or custody cases, sometimes it is not okay for your husband to take your child. There is a very fine line between parental interference and parental kidnapping.
When Taking a Child is Parental Abduction?
There are certainly times when a husband’s taking a child goes beyond a benign trip out of town. And thankfully, there are a series of state, federal, and international laws to deal with it.
Parental abduction has three characteristics: concealment, intent to prevent contact, and flight. These scenarios happen when a parent or family member takes and hides a child to prevent any contact with the other parent.
The other parent may make the child use a new identity and lie about who they are.The child becomes a missing child.
Parental abduction differs from custodial interference. Custodial interference happens when one parent makes it hard for the other parent to have parenting time.
In custodial interference cases, both parents know where the child is and may have phone or electronic contact. The other parent may be a nightmare to deal with, but you know where they are.
Parents whose child has been kidnapped by a parent or family member do have some legal remedies. The Uniform Child Abduction Prevention Act (UCAPA) is a uniform law adopted by all 50 states. It identifies abduction risk measures and provides provisions that courts can include in order to reduce the risk of abduction.
UCAPA gives parents a method for going to the state court in their area and asking for orders to keep their child safe. This may include eliminating unsupervised parenting time for the risky parent.
Parents who kidnap their children in foreign countries are subject to additional laws. Taking a child out of the country with the intent to obstruct the other parent’s parenting time is a federal crime. Any parent who does so may be prosecuted under the International Parental Kidnapping Crime Act of 1993.
The Hague Abduction Convention creates a procedure for the return of wrongfully removed children to their home country. This means that parents can get their United States custody orders enforced throughout the world.
Husband Takes Child During Divorce Case
Upon the filing of a divorce case, parents can no longer do entirely as they wish. The court expects the mother and father to maintain the status quo. Overall, the premise is that things should continue as they were until the parents reach a mutual decision or the court decides.
In relation to parenting time, maintaining the status quo means that both parents continue to have an amount of parenting time similar to what they did before.
If the other parent fails to maintain the status quo, you likely have recourse through the court. Some states, including California, Colorado, and Oklahoma, issue an automatic temporary injunction to prevent this very behavior.
The states that issue an automatic temporary injunction require that the parents maintain the status quo for the pendency of the case. They take effect upon initiating parent when the case is filed. The rules start applying to the other parent when that parent is personally served.
Even if no automatic temporary injunction is in place, parties to a divorce can request temporary orders from the court. This resolves issues where one parent is not maintaining the status quo.
What is Custodial Interference?
Custodial interference is the term for taking or keeping a child from the other parent. There must be an intent to interfere with the other parent’s rightful physical custody.
Custodial interference does not involve secrecy or the indefinite removal of a child that are the hallmarks of parental kidnapping. It is still serious though.
Many states have made it a crime to engage in custodial interference. However, it will be hard to get action on custodial interference without a court order that defines custody.
Once there is a court order, it is fairly easy to address these types of issues. The court may do it through a contempt proceeding. This can lead to jail time for the parent who violates the order.
Many states also have parenting time enforcement procedures that are especially tailored for parenting time disputes. These types of actions can lead to make-up parenting time for the mother. Perhaps most importantly, the court can rework the parenting time schedule if it seems one parent is not following it.
The courts do take a parent’s inability to foster a good relationship with the other parent seriously. It speaks to the suitability of the parent.
What You Can Do If Your Husband Takes Your Child?
In situations less serious than parental abduction, you may want to start by opening a divorce case with the court. Once you do that, you can ask for court orders to determine parenting time.
For situations that feel emergent because your child is missing, the Department of Justice recommends that you contact law enforcement. From the courts, you have a few different options.
If you can locate your child, the court can issue a pickup order under Uniform Child Abduction Prevention Act. This order will direct local law enforcement in any state to assist you in retrieving your child.
Because parental kidnapping is a felony, the court can also issue an arrest warrant for your husband.
How to Prevent Parental Kidnapping?
According to the Uniform Child Abduction Prevention Act, some signs that a parent may be preparing to abduct their child include:
- Quitting their job;
- Selling or liquidating assets;
- Purchasing one-way plane tickets;
- Threatening abduction; and
- Previous abductions or attempted abductions.
A mother can file a motion asking the court to take action under UCAPA. The court will, if appropriate, place restrictions on the husband to ensure the child remains in the state or country.
Anyone concerned about their child being taken on unauthorized international travel does have some options. First, sign up for the Children’s Passport Issuance Alert Program.
The State Department will attempt to contact you if anyone submits a passport application for your child after you enroll in this program.
What Happens if Both Parents Cannot Agree ?
The court settles the issue for the parents if they cannot agree about where the child should be. This would come about as part of the divorce case between parents.
In addition to settling property issues, the court also addresses issues regarding the children in a divorce case. When making decisions like this, the court also applies the ‘best interests of the child’ standard.
The court can issue temporary parenting time orders to determine the child’s living arrangement during the case. Then, it can issue permanent orders if the parents fail to reach an agreement.
Parents who are not yet ready to file a divorce case may find themselves between a rock and hard place in some states. Some states do not entertain custody-only cases for married parents.
When determining what to do, the court will consider several factors, including:
- What are the child’s emotional ties to each parent?
- Can each parent provide adequate shelter and safety?
- The mental and physical needs of the child.
- The child’s ties to the community if different geographical areas are proposed.
If you have the fear that your husband may take your child, hiring an attorney may be the best step. They can help you evaluate all of your options to keep you and your child safe.
If it is too late for that, try to parse out whether your husband is intending a kidnapping or something less. Fortunately, the court can take action for even less severe cases.