For mothers, it’s the scariest moment.
With no custody agreement the father took the child.
Will you see your children again?
What can you do about it?
In this article, we’re going to go over:
- what to do when there is no custody agreement and the father took the child
- who has custody of a child if there is no court order?
- if there is no custody order in place can the father take the child?
- is it parental kidnapping when the father takes the child with no custody order?
Let’s jump straight into it.
Table of Contents
- With No Custody Agreement, The Father Took The Child
- Who Has Custody of a Child if There is No Court Order?
- If There is No Custody Order in Place Can I Take My Child?
- Can Unmarried Father Take Child From Mother?
- Is It Parental Kidnapping If No Custody Order
- Don’t Lose Your Children
With No Custody Agreement, The Father Took The Child
We see this happen a lot with clients filing for divorce or fighting for custody.
With no custody agreement, the father took the child.
There are two scenarios if the father took the child with no custody agreement:
- can my husband take my child without my permission
- can a father take a child from the mother
In each scenario, the father’s custody rights are different.
But how you should handle the father taking the child without a custody agreement is the same.
If the father takes the 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
But can the police get involved in child custody if the father won’t give the child back to the mother?
The police cannot get involved if one parent is withholding a child from another parent.
The police can
- try to find your child and return them to you
- give you a police report if the father took the child
- file criminal charges against the other parent
At a minimum, the police will file a police report if the father took the child without a custody agreement.
You need to present a copy of this police report to the judge during your custody battle.
Can My Husband Take My Child Without My Permission?
Your husband can take your child without your permission.
Married parents share joint custody (even if there are irreconcilable differences).
It is legal for your husband to take your child without your permission.
It is not a crime for your husband to take your child without your permission.
Until there is a custody order, the parents have equal rights to custody and control of the children.
If you and your husband are separated, taking a child without your permission can work against him.
You should file for temporary custody orders until the divorce gets finalized.
The judge will look at a father who won’t give the child back to the mother as an inability to co-parent.
Working WITH the mother is very important for the best interests of the child.
A father who is withholding a child from another parent may lose majority custody.
Can a Father Take a Child From the Mother?
An unmarried father cannot take a child from the mother.
Mothers have full legal and physical custody.
If a father takes a child from a mother, it can be parental kidnapping.
When a child is born out of wedlock, the mother has full custody.
The father has zero custody rights or visitation rights to the child.
Meaning that a father cannot take a child from the mother without a custody agreement.
The father will have to:
- prove paternity
- hire a family law attorney
- file a petition for child custody
Who Has Custody of a Child if There is No Court Order?
When it comes to who has custody of a child if there is no court order, we need to look at three scenarios.
- married parents
- married parents filing for divorce
- unmarried parents
If the parents are married, both parents have equal custody of a child if there is no court order.
This is because both parents have equal rights to the child.
Either parent has the right to take the child at any time.
Married Parents Filing For Divorce
If the parents are married, but filing for divorce, things could change.
Who has custody of a child if there is no court order is the same as married parents NOT filing for divorce?
But the judge may provide the parents with a temporary court order for custody.
Usually, this happens when the parents move out during the legal separation.
If there is a temporary custody order, then that will determine who has custody of a child if there is no PERMANENT court order.
Related: Dissolution vs Divorce
But what if the child was born to unmarried parents?
In this scenario, the mother is the one who has custody of a child if there is no court order.
The mother has full legal and physical custody of the child until the father:
- proves paternity
- files a petition for child custody
After the father does these two things, then he has a shot at getting custody of a child.
If There is No Custody Order in Place Can I Take My Child?
If there is no custody order in place, you can take your child depending on whether the child was born:
- during a marriage
- outside of wedlock
If there is no custody order in place and you are married, then you can take your child.
Both parents have equal rights to the child.
This is also true if you and your spouse are going through the divorce process, but there is no custody order in place.
But if the child was born out of wedlock and there is no custody order in place, the father cannot take the child.
For children born to unmarried parents, only the mother can take the child.
This is because the father has no parental rights if there is no custody order in place.
Can You Kidnap Your Own Child?
If the other parent has sole physical custody, then you will be kidnapping your own child.
If you have joint legal custody, but zero physical custody, then you have parental rights.
But without any physical custody, you cannot take your child.
Taking your child can be considered parental kidnapping.
But what if the other parent has full legal and physical custody?
In this instance, you have zero parental rights.
If you take your child, you will be kidnapping your own child.
The key difference here is parental kidnapping vs kidnapping.
The criminal charges can be much greater.
Can Unmarried Father Take Child From Mother?
An unmarried father cannot take a child from the mother.
If the parents are unmarried, the mother immediately has full custody of a child born out of wedlock.
Full custody means she has legal custody and physical custody of the child.
She is able to make all major decisions for the child.
The father has zero visitation or custody rights to the child.
After the father establishes paternity, that does not give the father rights to the child.
He will still have to file a petition for custody and visitation of the child.
But, if he does establish paternity, then he will be financially responsible for the child.
Meaning that, even though he has no rights to the child, he will owe child support.
And child support and child custody are separate issues.
This means that paying child support is not indicative of receiving custody rights.
What To Do If The Mother Won’t Let Father See Child
If the mother won’t let the father see the child, the father should call the police.
The police will file a report for Visitation Interference for the father.
The police will not be able to remove the child from the mother.
This is true even if the father has visitation rights and the mother won’t let the father see the child.
When the mother won’t let the father see the child, it’s a civil matter.
The police cannot get involved in these matter unless there is a threat of domestic violence.
The father should call his family law attorney after he has received the police report.
This is one of the reasons a judge will change custody.
What Can I Do If The Mother Won’t Let Me See My Child?
If the child was born out of wedlock, you cannot do anything if the mother won’t let you see the your child.
Again, the mother has full custodial rights to the child if it was born out of wedlock.
If the mother won’t let you see the child, but you want to, you do have some options.
You will have to prove your paternity and file for child custody.
If you prove your paternity and gain custody, you will have to start paying child support.
But you will have visitation and custody rights.
Meaning that the mother will HAVE to let you see the child per court orders.
Related: Grounds for Full Custody of Child
Parental Kidnapping No Custody Order
Parental kidnapping is when one parent takes the child and refuses to return them.
Parental kidnapping with no custody order is valid for the following reason.
One parent removes the child to a second, or unknown, location to deny the visitation of the other parent.
When Is It Considered Kidnapping By A Parent?
It is considered parental kidnapping when one parent takes the child without consent.
There are two main ways parental kidnapping happens:
- one parent violates the custody agreement and takes off with the child
- there is no custody agreement and a parent takes the child without consent
Is It Still Parental Kidnapping Without Custody Orders?
Even without custody orders, it can still be considered parental kidnapping.
If the child was born to married parents, and there is no custody order, then they have equal rights to the child.
Meaning that either parent can take the child at any time.
It only becomes parental kidnapping when the child gets held at an unknown location to avoid visitation.
If the child was born to unmarried parents, then the mother has full custody of the child.
The father has no parental rights to the child.
So, if an unmarried father without custody takes the child, it’s kidnapping.
Not parental kidnapping since he does not have any parental rights.
Don’t Lose Your Children
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