90. The other parent has taken our child and there is no court order giving custody to either one of us. Can I go to jail for taking back the child?
Perhaps, but probably not. Usually both parents have equal custody rights if there is no custody order.
But in two situations without custody orders, unmarried parents do not have equal custody rights: 1) if paternity has not been established the father has no custody rights; and 2) if paternity has been established by signatures on the birth certificate or in a lawsuit (often handled by the Division of Child Support (DCS) or the DA), the child's caretaker might have automatic legal custody even if the court order does not say this. See Question 30. In these cases, the parents do not have equal rights to take the child even though there is no custody order.
But even if you have the right to take the child, you should not do anything that might harm the child. You should also be careful not to do anything illegal, such as trespassing or assaulting someone. Avoid taking the child if you possibly can. Try counseling or mediation, or try to get a temporary custody order from the judge. Most judges disapprove of one parent taking a child who has been living with the other parent for a long time unless there is an emergency situation like abuse or neglect.
91. What if I have legal custody and the child's other parent takes our child without my consent?
a.You can try to get the child back yourself if this will not put you or the child in danger.
b.You can ask the local police or county sheriff to help you get your child back. In a few places the police or sheriff will go with you to get your child if you have a certified copy of your custody order. In most places you will have to go to court to get an 'Order of Assistance,' which tells the county sheriff to return your child to you. Some legal services offices can help you request an Order of Assistance.
c.You can also ask the judge to find the other parent in contempt of court for violating the custody order. The judge can order fines or jail time until the other parent returns the child. You will need an attorney for this.
d.You can ask the District Attorney to bring criminal or contempt charges because the other parent has interfered with your custody rights. If the District Attorney's office decides to bring such a case (it is up to them) and wins, the other parent could be jailed and required to repay any money you spent to find the child or get legal help.
92. I am unmarried and the person I was living with has taken my child but is not the child's natural parent. What can I do?
You can call the police. You can also try to get the child back by talking to the person. But you should not do anything that will be harmful or dangerous to the child.
You can also hire a lawyer to file a lawsuit against the person or ask the District Attorney to bring criminal charges because the person interfered with your parental rights. (It is up to the District Attorney's office to decide whether or not to bring charges.