When one parent takes or keeps the child away from the other parent, and this act of taking or keeping the child away violates the other parent’s custodial rights, then, depending on the state you’re in, it might be a crime. Depending on the laws of your state, it might be custodial interference, parental kidnapping, parental child abduction, etc. Parental kidnapping can sometimes occur in high-conflict divorce cases.
Note that though parental kidnapping and custodial interference are used interchangeably in many states, some states make a distinction between these two terms. These states consider a parent guilty of custodial interference when he/she disregards custodial orders, and of parental kidnapping when he/she takes the child away with the intention of hiding the child from the other parent. Therefore, when you are confronted with such a situation, consult your child custody attorney about the terminology used in your state.
Here are a few facets related to parental kidnapping that you should be aware of:
Temporary Orders and Parental Kidnapping
In most cases, spouses separate before filing for divorce. After the divorce petition is filed, getting a divorce decree and custodial orders can take anywhere from 2 months to 2 years depending upon the complexity of the case. Some high-conflict cases may drag on for longer too.
As long as the spouses remain married, they get equal custodial rights – even though they may be separated. So, when separated parents don’t see eye-to-eye on matters of child custody, they should obtain a temporary order from the court that defines how the child custody ( legal, physical, sole, joint, or split) will be shared until the divorce is complete. Even when they agree on child custody, they should inform the courts and seek their approval of the custody-sharing plan until the divorce is completed.
If one parent senses that the child is in danger of being kidnapped by the other parent, he/she should immediately, perhaps at the time of separation, provide proof of the other parent’s intentions and obtain emergency custody or restraining order from the courts. Asking for an emergency restraining order is no small thing, though, so make sure there is serious evidence of the other parent’s intention to kidnap the child.
Violation of such temporary orders can be considered custodial interference or parental kidnapping depending upon the laws and terminology used in the state. Additionally, such orders can even protect a parent from being unjustly charged with parental kidnapping.
Parental Kidnapping and Unmarried Parents
If the parents are unmarried, and there is no custodial order in place, then the mother has de facto full physical and legal custody. In such a case, parental kidnapping may occur when the father takes or keeps the child away from the mother.
If the unmarried father wants to share custody of the child, he should establish paternity (proof that he is the biological father) before obtaining custodial orders from the courts. Usually, the courts award the biological father visitation rights (parenting time) before issuing the custodial order.
Any violation of the parenting time or custodial order could be regarded as parental kidnapping or custodial interference.
Impact of Child Abuse and Domestic Violence on Parental Kidnapping
When domestic violence is inflicted on a spouse, or the child is abused, the victimized spouse may keep the child away from the abusing spouse. In such cases, the abusive spouse can charge the victimized spouse with parental kidnapping. He/she may even file criminal charges. However, the action of the victimized spouse can be defended in many states by terming it an “affirmative defense” so long the victimized spouse provides sufficient evidence that the abusive spouse was an imminent threat to the child’s safety.
If you’re caught in such a situation, check with your family law attorney about how your actions will be interpreted by the state’s laws.
How is Custody Decided in Parental Kidnapping Cases?
Courts take into account the circumstances that led to parental kidnapping, its impact on the child, the likelihood of it happening again, and the best interests of the child before deciding on custodial matters. If the courts find that the offending parent is a threat to the child, then they may take away physical custody from him/her and permit supervised visitation. Though rare, in extreme cases, the courts can even take away the offending parent’s visitation rights.
Legal Consequences of Parental Kidnapping
The kidnapping parent can be charged with a felony or misdemeanor depending upon the circumstances of the case, the duration of the abduction, the criminal record of the parent, whether the offending parent physically or emotionally harmed or threatened the child or the other parent, whether the offending parent exposed the child to risk of injury or illness, and whether the other parent’s visitation rights or custodial time was violated.
Based on the findings, the offending parent may have to undergo probation, jail time, pay financial penalties, pay the other parent towards restitution, bear the expenses for bringing the child to the other parent, lose gun rights, and/or lose custody or visitation rights.