The answer can be “yes” or “no” depending on the following factors:
- The child was born to married parents, and there is no custody order
- The child was born to married parents, and there is a custody order
- The child was born to unmarried parents
Married Parents and No Custody Order
In the absence of a court order, a mother cannot legally take or keep the child away from the father. However, if the mother is aware that the father can cause harm (kidnap, abuse, or neglect the child, indulge in domestic violence, or abuse substances in the child’s presence) to the child, and has good evidence of the harm, she can keep the child away as long as her family law attorney petitions the court and provides evidence that the child will be physically or psychologically harmed if he is with the father. She should file the petition immediately after taking/keeping the child away from the father.
If the mother keeps the children from him, the father may call the police to help him exercise parent-time. Now, remember that the courts always decide on custodial matters based on the best interests of the child, and if the mother has lied about any harm to the child from the father, the courts may not regard her as an ideal custodial parent, and her lies can weaken her custody case. If, however, she proves that she was right in keeping the child away from the father, it can strengthen her custody case.
Married Parents and a Custody Order in Place
The mother is expected to comply with the court-approved parenting plan/custody order. If she has been awarded sole custody, she must allow the father to visit the child according to the terms of the order. If she has joint custody, the child will anyway share his/her time with the parents.
If the mother keeps the child away from the father despite the court order, she risks compromising her custodial rights significantly. There is an exception – the mother can keep the child away from the father if she is aware and has evidence that the father will inflict physical or serious psychological harm on the child. However, she must petition the courts immediately and provide evidence why she has kept the child away from the father. She may even petition that child custody should be taken away from the father (if the parents have joint/shared custody) or that his visits should be supervised or visitation rights taken away (if she has sole custody).
In both these situations, the mother cannot keep the child away from the father simply because she opines that the father lacks parenting skills, the father does not pay child support, or he is not precise in following the visitation schedule. She must have good evidence of imminent harm to the child.
If the child was born to unmarried parents, and if the father has not established paternity, the mother can keep the child away from the father because she has de facto sole custody of the child. After the father establishes paternity, he can file a petition for custodial rights. After the court grants the rights to the father, the mother has to comply with the court’s orders.
In many cases, both parents view child custody from a legal angle. We urge all parents to understand the child’s emotional turmoil and resolve their child custody case, if unavoidable, in an amicable manner.