Ask A Divorce Lawyer: Is it kidnapping when I am still married and take our son away?

Question:

My wife and I are having an extremely difficult time right now on account of her troubles with severe depression and obsessive-compulsive behaviors. We have been together for almost 10 years, but the situation is worsening. I don’t think I can stay any longer.

I feel very strongly that I should be our 3-year-old son’s primary caregiver. I’ve considered leaving the house and taking my son with me the situation is so bad. If I do that, will it be considered kidnapping since my wife doesn’t want us to leave? It’s unhealthy for us to continue to live there and I want to get my son out of there. Do I alert the courts that I’m moving out?

 

Answer:

 

Each state has specific laws relating to child custody and I must preface my answer by stating that I am not licensed in the state of Tennessee.  Cordell & Cordell does have offices and licensed attorneys in Tennessee that would be happy to consult with you should you chose.
 
Generally, because there is no custody order, a parent can take a child out of the home without asking permission from the courts. However, there is nothing to stop the other parent from simply picking the child up from daycare or school later – or from filing a kidnapping charge.  
Temporary orders allow the issue of custody to be settled during the interim until a final hearing or a settlement is reached. A temporary order can specify custody, child and spousal support, and parenting time. By filing a request for a temporary order, it would help act as proof that you are not acting with malice simply to keep your children from your spouse, but that you have legitimate concerns regarding the safety of your children.
 
Some courts have self-help desks and fill-in the blank forms that allow you to ask for temporary orders yourself. I would highly caution against self-representation when dealing with custody issues and would again suggest you contact an attorney licensed in Tennessee.

 

Nancy R. Shannon, a Nebraska native, is an Associate Attorney in the Omaha, Nebraska office of Cordell & Cordell, P.C. She is licensed in the state of Nebraska where her primary practice is exclusively in the area of domestic relations. Ms. Shannon received her Bachelor of Arts degree from Doane College and her Juris Doctor from University of Nebraska – Lincoln, where she was a finalist in a Moot court competition and active in Client Counseling activities.

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