The answer depends on:
- When the mother has primary or shared custody
- When the mother has sole custody
- Whether taking the child away amounts to parental kidnapping
When the Mother Has Primary or Shared Custody
Most parenting plans address the issue of a parent taking the child out on a trip:
In general, the parenting plan states what both parents can and cannot do when they want the child to travel with one of them.
Some parenting plans require either parent to notify the other parent or take his/her permission before traveling out of state with the child. Both the parents have to act according to the restrictions in their parenting plan. So, if there is a restriction on travel, and if the non-traveling parent does not grant permission for the travel, then the child would not be able to travel. The other parent can either abide by his/her decision or petition the court for permission. If the court does not grant permission, then the other parent cannot take the child on a trip with him/her. Taking the child out on a trip despite either parent’s or court’s refusal can amount to parental kidnapping.
So, when the parenting plan specifies that the mother has to obtain permission to take the child out of state,and if she does not get it from the father or the court, she cannot take the child on a trip.
However, if the parenting plan does not contain any terms that address travel, the mother can take the child out without the father’s permission as long as the travel is within her custodial time. Nevertheless, it is always better to check with the family law attorney to ensure that one is on the right side of the law.
If there is no parenting plan in place, you can take the child without informing the father – but you must do so only in your mutually agreed custody time.
The same rules apply when either parent wants an extended visitation period, which is quite a regular occurrence when children are out of school during holidays.
In general, noncustodial parents, parents who are involved in custody battles, parents whose paternity has yet to be proved, or parents who have been directed by a court order to take permission have to obtain the other parent’s approval before taking the child on a trip. If they don’t, their action can be viewed negatively by the courts which you will read more about later in this post.
When the Mother Has Sole Custody
A mother who has the sole custody of the child can take the child out without the father’s consent as long as the parenting plan or custody order does not prohibit her to do so. If the parenting plan is silent on traveling with the child, the mother with sole custody can still take the child without informing the father, but the trip should not obstruct the father’s visitation time.
If the mother is unmarried, she can exercise de facto sole custody of the child, and she can take the child anywhere without the father’s consent. This situation may change after the father proves paternity, and it is a major reason why unwed fathers should file for paternity and receive a custody and parent-time plan.
If the mother has been awarded sole custody in a court order and she intends to relocate to another state, she will be required to send a written notice of her relocation plans to the father. The ex-spouses can then work out a new parenting plan and obtain the court’s approval – or better still, they can consult their custody attorney who can guide them on to better, affordable, and quicker solutions such as mediation. After the new parenting plan is approved, the mother must comply with its terms.
Whether Taking the Child Away Amounts to Parental Kidnapping
When either parent takes his/her child away without taking the other parent’s permission or by violating the parenting plan/custody order, that act may possibly be regarded as parental kidnapping. Please keep in mind, however, that most of these situations are not kidnapping, but mere custodial interference. Even when there is no parenting plan in place, the act of one parent taking off with the child without informing the other parent could be interpreted as parental kidnapping. You’ll want to research your state’s law regarding kidnapping and meet with a family law attorney in your state to make sure the conclusions you draw from your research are correct.
If any parent is charged with parental kidnapping, the court may award financial penalties, community service, and even jail time to that parent. Plus, the courts are likely to have a poor opinion of his/her parenting capabilities, and therefore can modify the parenting plan in a manner that does not favor the “kidnapping parent.”
To sum up, a mother can take the child without informing in the following situations:
- When the custody is shared and the parenting plan is silent about taking permission for travel, the mother can take the child without permission so long as the travel is within her custodial time.
- When the custody is shared and there is no parenting plan, the mother can take the child without permission based on mutually-agreed terms.
- When the mother has sole custody, she can take the child without informing the father, so long as the trip does not obstruct his visitation.
- When the mother is unmarried, and the father has yet to prove paternity, she can take the child without any permission.