The father of my daughter and I are both from WV. I moved to TN for a better job. My daughter was going to stay in WV to finish the school year. Now 2 years later, the father still will not give her to me. Avoids all my calls, I've drove up there after he says OK come get her, then he is no where to be found. I tall to her on the phone and she desperately wants to be with me. Her and her father live with the grandfather and her father leaves all the time and leaves her there. There has never been a court arrangement or custody order. We never been married, and he signed the birth certificate but paternity was never established. I have a family member that gets to see her on weekends, if I go up there and take her while she's with my family member would I be accused of kidnapping?

Its his daughter too. Just as much as yours.


And whithout a custody order to the contrary... he has just as much right to have her as you do.

As it is.. he doesn't have to give her back. If you want it to change... go to court and try to get custody and a vistation schedule establishhed. Then it will be able to be legally enforced and you both will have to comply with what they order, which ever way they decide. And you will have a recourse if he doesn't. And he will if you don't.

You do know a DNA test will establish paternity... very easily. And a court will demand it be done. Doesn't matter who signed what... and if you were ever married or not.

Yes if YOU go up and do that he can call the police to report a kidnaping... then you and your family member will be in for a serious legal battle that goes far beyond family court in seriousness. Them in particular because THEY would have ZERO legal rights in this matter not being either parent.

First, if he is listed on the birth certificate as the father he is the legal father. Paternity testing wouldn't be needed unless he is denying paternity.

Second, so, as smoothy said, you both have equal rights to the child. Since there is no court order giving him custody. You could not be prosecuted for kidnapping unless you hid the child from him.

However, it would be better if you went to court and asked for primary custody, rather than just taking her. If you take her and he decides to file for custody, just taking her will work against you.

I'm not too sure waiting two years to attempt to obtain custody of the daughter is going to look good to the Court.


At any rate, that's the only way I see to go.

This also concerns me - " I have a family member that gets to see her on weekends" Under what arrangement can a family member see the child but not the mother, apparently for two years.

I think there might be more than is said here.

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Originally Posted by JudyKayTee

I'm not too sure waiting two years to attempt to obtain custody of the daughter is going to look good to the Court.


At any rate, that's the only way I see to go.

This also concerns me - " I have a family member that gets to see her on weekends" Under what arrangement can a family member see the child but not the mother, apparently for two years.

I think there might be more than is said here.

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And if THAT member abducts a child that's not theirs (because they are not the father, mother or legal guardian)... they will have a very serious criminal charge lodged against them. That can earn a sentence of 25 to life.

Bingo! Same with the old "aiding and abetting."

The other family member is my mother. He has nothing against my fam only me for leaving him. I did contact my uncle who is a magistrate judge in WV and he said there is no law against it and no law for it. So he recommended that before I leave the state to stop at the police station and tell them I am taking her. She is 10 years old its not like she is 2 and can't decide for her self where she wants to be. I would never keep him from her since he is a good father... but like I said, he has hatred toward me for no longer wanting to be with him. So thanks for the help.

I disagree with your uncle's advice to stop by the police. When you get home, I would write a letter to him telling him that she wants to live with you so you have taken her home.

As soon as she has established residency, you file for custody.

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Originally Posted by kaylasno

The other family member is my mother. He has nothing against my fam only me for leaving him. I did contact my uncle who is a magistrate judge in WV and he said there is no law against it and no law for it. So he recommended that before i leave the state to stop at the police station and tell them i am taking her. She is 10 years old its not like she is 2 and can't decide for her self where she wants to be. I would never keep him from her since he is a good father...but like i said, he has hatred toward me for no longer wanting to be with him. So thanks for the help.

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If your mother takes the child... she's committing Kidnapping... (if you did it it would be parental abduction).she isn't the parent or the guardian, her relationship to you have no bearing if that happens. And incidentally a 10 year old doesn't get to decide who they live with. Sorry, that's how it is. They might be allowed to express their feelings in certain states but they don't even have to be considered in any of them. The judge decides based on what they feel is best for the child.

GO to court and file for custody... if you get it,fine, if he gets it.. so be it... and nobody gets arrested or spends time in jail.

I have to disagree with smoothy. I don't believe you would be accused of, let alone prosecuted for parental kidnapping.

But I do agree it would be better go for custody first.

Correct Scott. I do know now after speaking with my uncle I would not be accused of kidnapping. Of course I would love to do everything the right way and go through the courts, but to anyone who hasn't been through it.. it is a never ending process with no result unless you hire an attorney. And when I try to contact legal aide for assistance it says all the attorneys are busy at this time please try your call again and hangs up. Well its done that for months. I feel I have no option but to get her and deal with whatever consequence. TN is much easier to deal with so when I get her I will properly file for custody because they will not do anything as long as she is in WV.

And my mother would not take her. The father lets her stay weekends there. So technically I would be taking her from my mother.

"And my mother would not take her. The father lets her stay weekends there. So technically i would be taking her from my mother."

You are going to create a breach between your mother and the child's father that will never, ever heal. Talk about the ultimate betrayal!

I personally think you thinking is flawed and is your logic - and "technically" may or may not enter into this.

The child has been with her father for what the Court may very well consider to be a lengthy period. She's established in her present home. You are planning to change that.

I think the Court will not look favorably on your behavior - please post and keep us informed on how this plays out.

OK, Your daughter's age works for you. She is old enough where a judge might listen to her. Also do you have any proof that the agreement was for her to stay only until the school year ended?

In any case, please keep us posted. And make sure you have a copy of her birth certificate with you at all times.

I do have her and no kidnapping charges! I will file for custody tomorrow morning. Thanks so very much scott

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Originally Posted by ScottGem

I disagree with your uncle's advice to stop by the police. When you get home, I would write a letter to him telling him that she wants to live with you so you have taken her home.

As soon as she has established residency, you file for custody.

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Actually, the child's "residency" has nothing to do with it. As soon has the child has lived in Tennessee for six months, then you can file for custody in Tennessee. Until then, either parent would have to file in West Virginia.

Here is the pertinent W.V. kidnapping statute:

"2011 West Virginia Code
§61-2-14. Abduction of person; kidnapping or concealing child; penalties.
"(a) Any person who takes away another person, or detains another person against such person's will, with intent to marry or defile the person, or to cause the person to be married or defiled by another person; or takes away a child under the age of sixteen years from any person having lawful charge of such child, for the purpose of prostitution or concubinage, shall be guilty of a felony, and, upon conviction thereof, shall be confined in the penitentiary not less than three nor more than ten years.

(b) Any person, other than the father or mother, who illegally, or for any unlawful, improper or immoral purpose other than the purposes stated in subsection (a) of this section or section fourteen-a or fourteen-c of this article, seizes, take or secretes a child under sixteen years of age, from the person or persons having lawful charge of such child, shall be guilty of a felony, and, upon conviction thereof, shall be confined in the penitentiary not less than one nor more than ten years."

Thus OP could not be accused of kidnapping, although the child's relatives (except the mother and father) could be.