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Can my ex wife take my son out of state without permission? I am primary caretaker, but do not have "legal" custodial rights..

Denver, CO |

I need legal advice and information on my rights as a single father living in Colorado. I have been the primary care taker for a 6 year old boy whom I fathered with
the mother in 2005. I lived with my son and his mother from 1 year before his birth, until March of 2009, then seperated. After seperating i took up full responsibility for our child, and have been raising him nearly alone for
over three years. Recently, my ex has been evicted from her apartment (again), and is talking about moving to Utah to live rent free with her brother.
She asked if i would relocate, and I said no. She asked if i would let our son move there without me, i said HELL NO. Now I fear she might attempt to take him ... We have never gone to court for custody rights, what are my rights as a father and primary?

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Attorney answers 3


Your rights? You are at the mercy of the mother, and she isn't thinking clearly about the best interests of the child.

Legal rights regarding children where the parents have not been married (another process that creates a legal relationship and rights) must be established by court order. You should have done this years ago. For the sake of the stability and continuity in care your child deserves, act immediately by filing a petition to establish your custodial rights. You want an order that confirms your de facto relationship to the child (and limits contact with the child by the mother to your immediate jurisdiction).

Nothing short of representation by an experienced family law practitioner will meet your needs. Depending on how your counsel assesses the seriousness of mother's threat to take the child and her ability to carry out such a plan, your attorney may recommend seeking immediate orders to preserve the status quo pending final decision.

Best wishes for a favorable outcome, and please remember to designate a best answer.

This answer is offered as a public service for general information only and may not be relied upon as legal advice.


Since you have no "legal" custody rights and have never been to court, your rights are very precarious. As the father, you have the right to take your child wherever you want when he is with you. When he is with his mother, there is absolutely nothing stopping her from taking the child anywhere she wants.

Deciding to handle things informally without involving the Court is very dangerous as there is absolutely nothing you can do if the other parent decides to go somewhere with the child. If she heads for Utah and you call the police to help you get your child back, the officer will ask to see your custody orders. When you tell him that you don't have any, the conversation is over.

If you are concerned about the mother leaving with your child, then you need to immediately get an actual "legal" custody case filed. You need to file a petition for allocation of parental rights and responsibilities. As soon as the case is filed and served, there will be an automatic court order prohibiting her from removing the child from the state of Colorado without permission from your or the Court.

You can reach Harkess & Salter LLC at (303) 531-5380 or Stephen Harkess is an attorney licensed in the state and federal courts of Colorado. This answer is for general information only and does not create an attorney client relationship between Stephen Harkess or Harkess & Salter LLC and any person. You should schedule a consultation with an attorney to discuss the specifics of your legal issues.


My two very learned and esteemed colleagues are totally correct and provide excellent advice. The problem is that, although you have taken care of the child throughout his life, you have never been to court in order to have a determination of parenting rights and responsibilities. As such, it is simply a free-for-all situation in which either of the parents can do whatever they want without legal consequences. She is not kidnapping the child or violating the child custody order because there is not child custody order. Right now, both of you have equal rights to the child. Until you file something with the courts and get court intervention, you do not have any leverage over her to prevent this type of aberrant conduct on her part. As they say, possession in 9/10ths of the law. You are right in fearing that she will take the child and run off to Utah. You need to file for parenting rights and parental responsibilities right away with the Denver District Court and serve her with the temporary injunction. The injunction prevents either party from removing the child out of the state without Court approval or the other party's approval. Hire an attorney as soon as possible as well.