When my daughter was about 6 Months old her mother left NM with her, without my consent, and kept her in Japan for 2 years. I was going through problems with major depression at the time and did not have the mental or financial capacity to retain legal services. Do her actions constitute parental Kidnapping? If so, is it too late to take her to court for it?
1 Answer from Attorneys
40-10A-201. Initial child-custody jurisdiction. (2001)
(a) Except as otherwise provided in Section 204, a court of this state has jurisdiction to make an initial child-custody determination only if:
(1) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
There is more to this statute but I think this part governs your situation, assuming you don't have any kind of judicial determination establishing custody of the child. That is part of a uniform child custody jurisdiction statute that I believe every state has adopted, so they're all the same. Under NM law you do have rights to the child but if you allowed her to leave and didn't get any kind of court order, as you suspect you've probably consented to the removal, so it would not be parental kidnapping. If you want to test this idea further you could go to the police or the district attorney and see if they think there is a violation of the interference with custody statute but I doubt it.
Question now is who has jurisdiction over the child so you can petition a court for visitation or custody. If she is back in this country and has lived in another state for six months or more then that state will have jurisdiction. If she is not in another state but remains in Japan, then you'll have to see what the Japanese courts will do. One possibility you may have is if she has returned to this country but has not lived in another state for more than six months jurisdiction could conceivably still be in New Mexico. Long shot.
To get anything moving you're going to need good legal advice from an attorney with experience in this area, which is a sort of exotic area of law.