Parental Rights of Unwed Fathers When Mother Leaves State

By Sherrie Scott

man image by Stanisa Martinovic from

Child custody issues can become complicated when parents do not live within close proximity of each other. Parents sometimes leave the state where their child was born to pursue job opportunities, another relationship, or to be with extended family members. If an unwed father finds himself in a situation where the mother of his child has left the state, he must take the necessary steps to protect his parental rights and maintain his relationship with his child.

Rights to Custody

An unwed father is entitled to exercise his parental rights to custody of his child. If an existing custody order is in place, even if the mother moves to another state, she must abide by the order and continue to allow the father to exercise his parental rights. If no current custody order exists, the father must file for custody and establish his rights as a parent.

If by moving away the mother is attempting to distance the child from his or her father, the father can then file a motion to enforce his custody and visitation rights. If the mother refuses to follow the order, she may be held in contempt. This means that not only can custody be awarded to the father, but she can also be subject to an arrest warrant for possible parental kidnapping.

Time is of the Essence

A father must act promptly when he learns that the mother of his child has moved or is planning to move his child to another state. The father has six months to file for custody modifications or enforcement. If there is no custody order in place and the child is removed from the state, the father still has six months to file for an initial custody determination in the state where his child lived. When a determination is made in the original state, it is valid in the new state. If the father suspects the mother of abducting the child, he can have his parental rights enforced through public authorities, such as the police department.

Home State Custody Jurisdiction

If the mother moves to another state with the intention of filing a custody order in that state, the father can have any custody orders in the new state dismissed because the new state does not have legal jurisdiction of the custody case. Home state jurisdiction is the state in which the child lived for at least six months prior to any custody proceedings. Just because the child no longer lives in the state where his father lives, does not mean that the state does not have jurisdiction and can not enforce the original decree. Any modifications to custody orders must be made through the home state and the father has the right to enforce the original decree through the state courts.

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