Determining custody in kidnapping cases

            Posted on September 13, 2015  

            Determining custody in kidnapping cases

Q. I had a hot relationship with a woman, and we decided, on a whim to get married and live in Massachusetts. Shortly thereafter we had a child, Lizette, now 3. After Lizette was born our marriage went from sweet to sour, with lots of arguing over not having enough money, her not working, and some pushing back and forth.

Then my wife said she was pregnant, again. This was upsetting because we planned on her going to work. We argued more. Then my wife left and kidnapped Lizette by taking her without my consent. It took me a while to track her down. By that time she had the baby. Then I went to her new house one night and kidnapped the two kids and took them back here.

Can she get the kids back, even though she kidnapped them first?

A. Lizette was a resident of Massachusetts before your wife took her to another state without your permission. The one important thing you didn’t tell me was if your wife and Lizette were in that other state for more than six months. If yes, then under Massachusetts case law, that means this state lost jurisdiction over Lizette. Further, because the second child was not born here, this state has no jurisdiction over that baby.

If so, then your wife can file a case seeking custody of both children in the state she has been living. That court is likely to award her custody on an emergency temporary basis. Then she can file a complaint here that will result in the court ordering you to return the children to her. She also might get the court to order you to pay for her expenses and legal fees.

But if Lizette was not in that other state for six months, then under the Massachusetts version of the Uniform Child Custody Jurisdiction Act, this state has jurisdiction over Lizette. That means you can ask this court to award you full custody of Lizette. The judge will make a decision based on the child’s best interests.

For more information on kidnapping and related cases, you need to go to my website, nissenbaumhickey.com. Within a few weeks you will be able to go onto amazon.com and buy my new eBook on Kidnapping.

Of course, if the judge grants you Lizette’s primary custody, then you can go to the other state to seek custody of the second child. There you will need to prove two things: that you are actually that child’s biological father and that it would be best if both children were raised together in your home. But be careful what you wish for because that second argument could come back and hit you in the face.