Unmarried Father's Rights When the Mother Plans to Move Out of State

Attorney Answer

Right now there is nothing legally stopping her. Your son's name on the birth certificates makes him the legal father, but with no custody order in place, no court has told either parent where the children may live. Until he files, the mother can leave Idaho with the boys and he has no order to enforce.

The fix is to open a case. Idaho Code Title 7, Chapter 11 — the Paternity Act (§ 7-1101 et seq.) — is the vehicle for establishing paternity and getting custody and support orders for children whose parents were never married. Section 7-1126 directs that in a custody proceeding under that chapter the court applies Idaho Code §§ 32-717 through 32-717E. Because he is already on the birth certificates, his gap is almost certainly not parentage — it is the absence of a custody order.

Once a custody action is filed, Idaho Code § 32-717 tells the judge to award custody as appears to be in the best interests of the children, considering all relevant factors: the wishes of the parents and of the children, the children's interaction and relationship with their parents and siblings, their adjustment to home, school and community, the character and circumstances of everyone involved, the need to promote continuity and stability, and domestic violence. An out-of-state move gets weighed inside that framework — what it does to the children's stability and to their relationship with their father. Note what that means: a judge can allow the move. The question is not whether he can veto it, but whether a court, hearing both sides, finds the move is in the boys' best interests.

Timing matters more than anything else here. Filing while the children are still in Idaho, with an Idaho court, is a different case than trying to reach them after they have been established in another state for months.

What you can do

1. Have your son see a family law attorney this week — before the move, not after. Speed is the whole ballgame. 2. File a custody action in the Idaho county where the children currently live, under the Paternity Act, asking for a custody and parenting-time order. 3. In the same filing, ask for temporary orders: a temporary custody and parenting schedule, and an order restraining removal of the children from Idaho while the case is pending. This is the request that can actually stop the move. 4. Gather proof of the informal arrangement they have been running — a calendar of overnights, texts arranging exchanges, school and daycare records listing him, photos, receipts for things he has paid. 5. Keep exercising his time with the boys exactly as they have been doing, and keep it documented. A consistent, involved-parent record is what § 32-717's continuity and stability factors reward. 6. Do not take the boys and keep them, and do not agree in writing to the move to keep the peace. Both make his case harder. 7. Get copies of the birth certificates and any voluntary acknowledgment of paternity now, so the paternity piece is not a delay.