Posted for those whose clients may be facing interstate custody issues,
but written to parents:
No matter what state you are in when you read this post, if your children
have been taken without a court order, or to conceal the children from
you, you must act quickly so you do not lose your bond with the children
or lose your rights to custody and visitation.
If you wait longer than six months to object to the other parent's
out-of-state move, you will probably have to go tell your story to an
Maybe you are in the Entertainment Industry working insane hours, or you
travel for work, or are sick or depressed, in jail, kicking substance
abuse…. Whatever the reason, just face it, access to your kids
will be more difficult the longer you wait. Fix the problem now!
What do You do if Your Child is Kidnapped?
Let's face it, a misunderstanding over who has a three-day weekend,
as irritating as that situation may be, does not get law enforcement excited.
On the other hand, when a parent unlawfully takes or conceals a child from
a "lawful custodian," he or she has committed a crime. (CA Penal
Code 278 - 280). Calling law enforcement in that situation is important,
first so the child does not become too hard to find, and secondly because
your relationship with a child who never sees you dies a little each hour.
As soon as you find out that the children have been taken to live out of
the County or to another state to be hidden away, or are taken to live
anywhere against court orders, you, as the left-behind parent, should:
Enforce previous court orders by having the judge order the District Attorney,
to have peace officers “find and serve” the taking parent,
or, more effectively, “find and retrieve” the child, and bring
the child back to California.
Start a new Family Law case for custody and visitation orders in California, BUT at the same time,
contact the agencies who help in kidnapping (abduction) cases.
In Los Angeles County, with the help of your custody attorney or on your
own, contact the Child Abduction Unit of the Office of the District Attorney.
Fill out the questionnaire available online, and then take the questionnaire
to the DA at 320 W. Temple St, Room 780 (the criminal courts building
downtown). The questionnaire and other information is found at
In other communities, check the State Attorney General's Office for
their kidnapping unit. In California:
Or, out of California, check with the National Center for Missing or Exploited Children,
SCARY: The local police or sheriff's department officers do not have as
much experience with kidnapped children as do the specialty departments.
It is common for a local police officer or sheriff to tell a worried parent,
"If you know the child is in Florida, he is not kidnapped now is
he?" The truth is, although no child should be abducted, when compared
to car-jacking or petty theft, child abduction is rare. The cops just
don’t know. The specialty units will help even if local law enforcement
Home State Rule - Timing is Everything!
Even if it is decided that your child is not kidnapped, you still have
rights if your child is taken to another state.
The federal custody scheme called Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA) is part of the laws of all 50 states. Decide
which of the following scenarios fits your case and then act:
Previous custody orders:
- If a child is moved out of state against previous court orders, you, as
the left-behind parent, have the right to seek the child's return,
or at least, significant visitation rights, so as long you do not move
out of the state where the order was issued.
Further, even if the other parent moved the kids legally, for as long as
you live here, he or she will have to come to this state when either of
you attempts to modify orders. You may not have a legal timing issue when
you have a previous order, but, practically speaking, the less the kids
see you the less they think about you - do not stall in correcting problems.
No Previous Orders — First 6 Months:
- The “Home State” of a child who is under no pre-existing court
orders is the state where the child has lived during the last six months.
(Exceptions for newborns and children who have moved multiple times within
This means that even after your spouse or the parent of your child moves
away, during the next six months after the move, neither of you are allowed
to file anywhere else but in this state!
Do Not Wait!
The excuses of leaving parents usually sound like, "I needed to go
home to my parents because I couldn't afford to stay in California."
"I was afraid for my safety or the safety of my children, so I protected
them by leaving." "They are my children, I brought them into
the world, there is nothing the other parent can do about it." "I
couldn't find work in California."
None of those excuses works to allow the leaving parent to file for custody
in the new state during the crucial first six months except, in some very
narrow examples, e.g., if the parent was actually, provably, fleeing for
his or her safety. Even then, the orders in the new state may be temporary.
No matter how good the reason, the request for orders must be filed in
California for the first six months.
No Previous Orders — AFTER six months:
- If nothing has been filed in California to stop the leaving parent, any
old excuse will work AFTER six months, because the children's "home
state" is now the new state. Don’t wait!
This post is being written because in the past 60 days, I have had seven
inquiries about move-aways (that is a lot even for a custody lawyer).
None of these people had a previous court order. Two wanted to move, one
wanted to object to a move, and four of them wanted to know how to ‘get
their kids back.’ Of those last four, I was able to help one because
he had not waited too long. The other three had to be told to contact
a lawyer in the new state.
We are a transient community. Many of us have children with people who
used to live somewhere else. If there is a breakup, those parents tend
to move back to where they came from. Do not think you will ‘fix
it next week.’ If you wait too long you could permanently shrink
your relationship with your kids.
What if You Waited Too Long?
The parent WITH a previous California court order will get the best result
by seeking timely custody changes. However, even if six months has passed,
the parent with pre-existing orders still has the right to file for a
modification, or file for enforcement of the existing court order in this state.
If you are a parent whose children have been living in ANOTHER state for
longer than six months, and there is no pre-existing court order, a local
attorney cannot help you. Immediately hire a reputable Certified Family
Law Specialist from the state where the children have gone, or take a
trip to the local courthouse in that state for a self-help custody package
(check online first to make sure they have a self-help center).
Are You an Out-of-State Parent?
If you are an out-of-state parent who must find legal representation in
Los Angeles County to obtain parenting time and access to your children,
seek local counsel who is experienced in interstate custody cases. We
would like to help. Call us for a confidential consultation