The answer to your question is "yes." You COULD possibly be charged with parental kidnapping if you take the children out of state.
Below please find the language of the Parental Kidnapping Statute 565.153:Parental kidnapping--penalty.
565.153. 1. In the absence of a court order determining rights of custody or visitation to a child, a person having a right of custody of the child commits the crime of parental kidnapping if he removes, takes, detains, conceals, or entices away that child within or without the state, without good cause, and with the intent to deprive the custody right of another person or a public agency also having a custody right to that child.
2. Parental kidnapping is a class D felony, unless committed by detaining or concealing the whereabouts of the child for:
(1) Not less than sixty days but not longer than one hundred nineteen days, in which case, the crime is a class C felony;
(2) Not less than one hundred twenty days, in which case, the crime is a class B felony.
3. A subsequently obtained court order for custody or visitation shall not affect the application of this section.
You may request that your spouse agrees to allowing you to leave the state. If your spouse agrees, then even if you are not in divorce proceedings, then you should file a Stipulation and Order for Custody of the Children and to Allow you to Leave the State.
If there is nothing in writing that has been entered with the Court, your spouse MAY file a report with the police department for parental kidnapping. The allegations of the report would be investigated. Once the police finished with it's investigation, the evidence would be presented to the prosecutor. The prosecutor would review the evidence and, if there was enough evidence, a warrant could be issued for your arrest for parental kidnapping.
Since your husband has had virtually no contact with your children, it may be easy to get an Order of Sole Custody
of the Children and an Order allowing you to leave the state. However, in order to do so, you will have to open a case in the Family Court and file a Petition for Sole Custody of the Minor Children and Permission to leave the state. You would file the original Petition with the Court, and you must serve your spouse with the Petition. You may wish to hire a process server to serve your spouse with the documents. Once served, the process server would file a Proof of Service with the Court that indicates the date, time and place that your spouse was served.
You must also request a date for hearing at the time you file your Petition. The Court will provide you with a date.
If your spouse fails to Answer your Petition IN WRITING within 30 days, you can file for a Default and Default Judgment for Custody and Permission to Leave the State. If your spouse doesn't respond.
Below please find a link to the form for Petition for Custody of the Minor Children
I hope you find this information useful.
My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions.
Thank you for your business!
Many customers have asked how they can specifically direct a question to me in the future. If you specifically want me to assist you in your legal matter, just put "xavierjd” in the subject line and I will gladly pick up the question as soon as I am on-line.
***Answers given are for informational purposes only and are not meant to replace the advice or assistance of an attorney licensed to practice law in your state. If you need any more information, please do not hesitate to ask. Thank you!