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I live in the state of NC. The father of my kids and I have

never been married. He...
I live in the state of NC. The father of my kids and I have never been married. He is abusive to me and I want to move to GA to live with my mother. He says he will get me for kidnapping if I leave. Can he do that? What action do I need to do before we leave the state? I can not afford an attorney. Thanks Susy
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Answered in 25 minutes by:
11/1/2012
socrateaser
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 39,498
Experience: Retired
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Hello,

In 1978, the NC Court of Appeals held that a parent cannot kidnap a child from the other parent, unless there is a court custody order providing that the other parent is entitled to custody of the child. See, North Carolina v. Walker, 35 N.C. App. 182, 241 S.E.2d 89 (N.C.App. 02/07/1978). Since that decision, the NC Kidnapping laws have been modified by the state legislature in a manner which suggests that it could be possible to kidnap a parent under conditions that were present in the original Court of Appeals decision. See NCGS 14-41. However, there is no reported case of a parent actually being charged with kidnapping under the circumstances you describe, so from all available information, there is nothing to prevent you from leaving for GA with the children.

Upon discovering that you have left the state, the father can petition the family court for custody, and if he receives a temporary sole custody order, he may be able to force you to return the children to NC -- though you could not be criminally charged for kidnapping. If you want to prevent this from occurring, then as soon as you reach GA you would have to file a petition for a temporary protective/restraining order against the father alleging abuse and if the court agrees and orders the restraining order, then the NC court could not force the children's return, unless and until the GA court decides to terminate the temporary order.

The point is that there is a risk, but it may not be as great a risk as the risk of staying in NC. That's something only you can decide.

Your other option would be to seek a restraining order in NC family court alleging abuse which would force the father to leave the family home. Then you could petition for custody orders yourself, and as part of those orders, you could obtain orders to move to GA.

I understand your circumstances, and frankly under the circumstances, I cannot definitively say which route is better. But, at least now you know what the law is and is not, and so you can decide for yourself.

Hope this helps.

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socrateaser
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 39,498
Experience: Retired
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Customer reply replied 5 years ago


When I get to GA I will file the restraining order against him but the GA attorney says I have to wait 6 months in order to file for custody of my own children. I have been told if I file for child support in GA that automatically gives me custody so do I need to file for custody when I get to GA? I just dont want him to file and I have to return the children to Nc for we are all living with his parents in a run down shack of a house.

It's true that you must wait six months to petition for full custody in GA. However, under O.C.G.A. 19-9-64, the court is authorized to make temporary orders "in an emergency to protect the child because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse."

If the father seeks to have the NC court make different orders, then you will have to defend against those orders, and if you lose, then the children could be ordered returned to NC. However, there is no guarantee that the NC court will make those orders against you. The court may make orders against your ex. You have to decide whether the risk of leaving is greater than the risk of staying. If you are genuinely afraid for your safety or the safety of your children, then that probably will determine your choice.

Hope this helps.
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Hello again,

Customer service informs me that you are dissatisfied with my answer.

In the interest of improving my future performance, I would appreciate knowing whether or not you believe my Answer is incorrect -- and if so, exactly what is the legal basis for your belief -- or, that you or not challenging the accuracy of the answer, but are simply choosing to take advantage of the website's 100% satisfaction guarantee.

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Customer reply replied 5 years ago


Customer service is wrong, I have given you excellent scores every time. I gave you a good service the first question but hereafter I have given you excellent. they are incorrect

Thanks. I'll look into it further.

Please do not reply to this note -- otherwise, the system think you're asking a new question, and I will be required to Answer.

Best wishes.
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socrateaser
socrateaser
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Category: Family Law
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