My Brother and his Wife are having a rough time and a split is sure to happen. They have 1 child a little boy that is only 2. My Brother has worked through out the marriage and his wife has not. She does not clean the house or cook and would not take care of my Nephew if she didn't have to while my Brother is working.
My Mother wants to send my Brother enough money to leave the state where he lives and come here with his Son. I am worried that my Brother will get into trouble if he brings my Nephew with him without his Mothers knowledge. I don't know if this is considered kidnapping since my Brother is the childs Father and no custody has been discussed yet. I know that my Brothers wife would never agree for my Brother to bring my nephew here. She uses my Nephew as leverage against my brother.

Any advice? Is this illegal?

I know we should consult with a lawyer but hopefully it won't need to get that far.

Yes. It IS indeed kidnapping. Even with full custody, if the mother retains legal custody, the father cannot move with the children without going to court and getting a court order to do so. Whether or not the mother is a "good" mother...she still has parental rights. Your brother is best off going through the proper channels.

definitely consult an attorney, your brother might be able to file for custody of the child before she does and since she doesn't work it might benefit him. But you should talk to an attorney first.

In order to file for divorce you must live in a county 90 to 120 days depending on the state. If he leaves and your brother takes this kid away, and he is not a resident of the other states (as he just left with the child)... then the court of jurisdiction, where she files, will order him to return. Then it becomes a crime, as far as I understand. That is what my lawyer told me.

Custodial interference is a felony in Ohio.

Also, depriving a child of either parent unless they are in danger is not a good idea. I'd suggest your brother look into moving out, taking the kid for a visit, filing for divorce and an ex parte order granting him emergency custody during said visit. That is legal.

There is NO SUBSTITUTION for legal advice with a local attorney. Do not ask one even from a nearby jursidiction. That pisses the courts off big time.

Not legal and trust me, it WILL get that far and the kid could end up on the milk carton pic, the whole nine yards. It is unwise to just take the child. He SHOULD get to an attorney or judge ASAP.

Definitely consult an attorney, different states may have different laws/interpretations of the law. But, yes, in general, this would be considered kidnapping unless he has a court order giving him sole legal and physical custody. Though he is the father, custody is in BOTH parents control unless and until there is a court order in place stating otherwise. And, in most states, even though he may have sole legal and physical custody, he would be required to keep the child within a certain distance (i.e. 50 miles) of the non-custodial parent.

If he is certain this is what he wants, he should consult an attorney and get a separation/custody agreement BEFORE he does anything.

*legalities aside, he really should consider the potentially irreparable emotional harm he will do to his child by taking such an action. Regardless of whether she is a good or bad mother, she IS his mother. Custody battles do more harm to children than good, in most cases. They are adults, they should make every attempt to work this out in an adult fashion without making a victim of the child. JMO

Thanks all I just needed some information to give my Mother. She doesn't think it is illegal but I thought it was. This has all just happened today my Brother is staying in a Motel and my Mom is afraid that my Nephew will not be taken care of with my Brother being out of the house.

Ummmm, ever heard of Children's Services? They really do exist to help. Use the resources the community provides.

Ummmm...yeah. Thanks.

Seriously, there is a negative stigma about them. But they are objective and can help a lot in the right situation.

I wish your nephew good luck.

If custody hasn't been established, then it can't be ruled as kidnapping, because one parent has just as much right as the other in claiming the child.

I agree with the majority of posters here.

Seek qualified legal advice before he crosses a state line with the kid. And before you or your mother assist him in doing it. It might get very ugly.

Potentially, mom calls the police, reports the father and child missing...father get's stopped or even arrested, has to bail out and hire an attorney and worst case the kiddo goes into foster care while the muddle gets worked out. All these possibilities are expensive and scary. Better to explore your legal options first.

Each state has different laws so find council in the state in which he and the child reside.

If money is an issue there are attorneys who work for little or nothing and can usually be located by calling your state bar association. You can do this by just picking up the phone and asking information for the number to the state bar association. There may also be a fathers rights organization in the city or state that your brother can turn to for advice and tips in finding representation.

It could really turn out bad for him in the long run if he took his son away.

Thanks everyone. I just spoke with my Brother and things seem to be ok for now. He is staying in a motel and my Nephew is with him. My Brothers wife has agreed to seek counceling and hopefully they can work everything out and stay together instead of getting a divorce. They are young only 22 and 21. I know that my brother can be impatient and will be taking anger managment classes starting next week.
My Mother paniced when she spoke with my Brother earlier today it is hard for us to know what is really going on since we are so far away. If things do end up going bad atleast now I know exactly what action we need to take to make sure my Nephew is taken care of.

I would still seek out a lawyer! anger management classes and counseling are good starting points, and I wish your brother, his wife and their son the very best, but if I could go back to my divorce I would seek legal advice from the start so as to understand my rights. I was lucky in that I had a judge who saw the wool over my eyes and had an eye-opening conversation with me before he would continue the case. now, I have full, sole custody of my daughter. So, yes, by all means work things out if possible. But be prepared if things go south

talk to a lawyer you brothers works she has the parental rights (tecinally) my x husband stayed home with our daughter i worked i was told i could only hope for weekend visits. my husband tecinally and legally couldnt work but he was ruled as the custodial parent because he was a stay at home dad. so ask a lawyer, because if he doesnt he will lose all custody.

by the way mothers dont always have more rights than the father

it really depends on who is the homemaker and who earns the money

Seek legal advice...children and both sets of parents have rights regardless of custody arrangement until your rights have been dismissed by a court.

the first thing to do is contact a lawyer. The laws concerning this issue are different in every state.

Now, with that said, in MOST states, not all but most, if the parents are married, and one of them moves out without filing for a divorce or to remove custody, etc. they can LEGALLY take any children with them, as there is not a law that states the child(ren) are requried to be left with a specific person if one of the two adults moves out. Some states this is NOt true, but only a very few.

Now, lets say he moves to another state witht he children. If she files for a divorce before he does (and she can do so immediately whereas he ahs to wait 90-180 days or longer), she can ask the court to order him back to that state with the children until things are straigtened out in court. He would then be required to do so within a set time period, or face charges.

If a divorce is filed for prior to the move, then most likely he would not be able to move out of state, or even out of county until everything is settled, although he WOULD be able to file for initial custody until everything is straightened out. Thats what I had to do. i field for divorce, and got temporary immediate custody, until the divorce was final. When it was finalized I retained sole custody. I still could not leave the state however without the mothers permission, or takin git into court and getting them to ok it.

So, as you can see, there are a lot of options here, and the best thing you can do is contact a lawyer and get edumacated on the laws in the concerned area.

i amglad t o hear they are talking things through, btw. Hopefully it wont come to divorce and custody and everything else.

Good luck and best wishes.