I moved out of state a few months ago and left my child with my husband while I got myself situated. We had tentatively outlined a custody arrangement before I left, and the divorce process started. My husband decided he didn't agree with the previously agreed-on terms, and found a new lawyer. He has now served me with a petition for guardianship, saying I am an unfit mother.
Is there anything legally he can do if I just drive down there and pick her up with her stuff?
Regarding the question at the end of your post, you should review the pleadings with a lawyer and make sure there are no orders restricting your access to the child. As a general matter, if you are the legal parent and he is just a step parent (never adopted), you have full authority over your child and can revoke an informal agreement for someone else to care for her at any time; however, if he alleged t the court that you posed a danger to your daughter, it is possible he obtained a temporary restraining order without notice to you.
Regarding the question in the header of your post, that would be a criminal law question outside the scope of most family law practitioners' experience, but logically I don't see how he could be charged with kidnapping if you left your child with him voluntarily. If you're talking about the possibility that you try and retrieve her and he refuses, it might be custodial interference, but because he has filed the petition, law enforcement may see it as a civil issue rather than a criminal one. You should speak with an attorney in the jurisdiction where the case was filed about the best course of action for getting your daughter back without putting her or yourself at risk.
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I agree with Ms. Forrest. You first need to know if any orders were entered her and what he actually said. If no orders were entered, you have a legal right to your child superior to that of a step parent and you have a primary custody right. However, I would not breach the peace in exercising that right. Talk with a lawyer before taking action; and do so as soon as possible.
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