Can a parent kidnap their own child? Is it parental kidnapping if there is no custodial order? Who gets custody in parental kidnapping cases? You will find answers to these and many other questions in this article.
What is Parental Kidnapping?
Kidnapping is a crime accompanied by the illegal deprivation of a person’s freedom against their will by hiding in a secret place. The kidnapper can be either a relative or a stranger.
Parental kidnapping is also a crime for which punishment is provided. The main difference between parental kidnapping and ordinary abduction is that the offender is one of the parents who took their child without the other parent’s consent.
Depending on whether the kidnapping parent has a custody order, the court may or may not consider kidnapping a crime. However, depending on the state, judicial action may differ. Therefore, a parent who wants to take a child should first consult with their attorney to ensure that their actions will not be considered wrong. Then, after considering the case, the experienced lawyer can suggest what steps to take in this situation so that the law is on the client’s side.
Why Would a Parent Kidnap a Child?
Even knowing that parental abduction is a severe offense, parents still decide to take such a step. There are three common reasons for abduction:
- Disagreeing with a custody order
Child abduction is often committed by parents involved in a custody dispute. A parent who loses custody may feel that the court’s decision was unfair to them. As a result, they may want to revoke the court order by kidnapping the child, thereby satisfying their vision of a proper custody decree.
- Fear of abusing a child
Sometimes parents take a desperate step to kidnap a child to protect them from cruelty and abuse. However, there are cases when the accusation of cruelty is false. The court will not be kind to a parent who lies in this case.
- Revenge on the other parent
One parent can kidnap a child to get revenge on the other parent. And often, such actions have nothing to do with the child’s best interests.
Sometimes, for revenge, the kidnapping parent may begin to blackmail the other parent with the child, threatening to harm them. Such abduction is often accompanied by a permanent change of appearance, names, and residency. In addition, the kidnapper may tell the child that the other parent and family no longer love them or are dead.
Prolonged existence in such conditions causes child depression and increased anxiety.
What is Parental Kidnapping Without a Custody Order?
Depending on the parents’ status and unforeseen circumstances, the court may not always recognize kidnapping as an offense.
Parents Are Married
If the parents are not yet divorced and no child custody case occurs, both parents have equal custody rights. As a result, they are free to spend time with their children even if the other parent disagrees.
Even when married parents live separately and apart but do not have a physical custody order from a court, it is not custodial interference if one parent keeps a child from the other. However, there is a “BUT.”
If a parent can easily take their child for a picnic, camping trip, etc., without the other parent’s consent, does this right apply when taking the children to another state or country?
It all depends on the particular state laws. For example, in some states, the court will consider parental kidnapping illegal only if one of the parents does not inform the other about the children’s location. In other states, the court considers the duration of the child’s absence in the home state before deciding on parental kidnapping. However, some states still restrict leaving the state with the children without the other spouse’s permission entirely.
A child abduction claim will be difficult to prove if the parents are married without court-ordered custody agreements. The claimer will need to provide solid proof that one parent does not allow the other parent to see the children or hides the children’s location.
Parents Are Not Married
If the parents are unmarried and have no custody order, one parent has sole legal and physical custody until a court decree says otherwise. In this case, a court can charge the other parent with kidnapping if they take the child away.
To be eligible for custody, a parent must establish paternity. They can do it using a DNA test or by providing the child’s birth certificate with the names of both parents.
How to Avoid Parental Kidnapping?
As mentioned earlier, the child abduction charge will depend on state laws and case factors. Based on this, protection against parental kidnapping will vary according to these aspects.
Defense factors include the following:
- When the abducting parent leaves with the children to protect them from domestic violence or abuse;
- When the abducting parent had legal custody (for example, a child custody order did not exist or the parent did not violate the child custody order);
- The abducting parent can not return the child to the other parent within the period established by the child custody order due to circumstances beyond their control (for example, when a flight is delayed due to natural factors).
In domestic violence and child abuse situations, the victim may keep the kid away from the other parent for protection. But the abusive parent can accuse the other parent of the child kidnapping when it happens.
The court may criminally charge the victim-parent under state law. However, in domestic violence circumstances, many states allow affirmative defense.
An affirmative defense allows the victim-parent to dismiss charges or significantly reduce them. The victim has to provide evidence of abuse and cruelty in the family as mitigating circumstances.
If one parent wants to take a child away from another abusive parent, they should learn the laws of their state and/or contact a family law attorney. Whatever your intentions, kidnapping a child is a crime.
How to Prevent Parental Kidnapping?
Many child abductions occur before or after a custody decision is made. If one parent fears that the other parent may take the child without their consent, they may ask the judge to assign an emergency custody order. A temporary custody order may include supervised child visits or prohibition of leaving the state with a child.
Also, custodial parents should notify the administration of the school/kindergarten about the court order so that they do not transfer the child to the other parent. Moreover, the custodial parent should notify relatives of the non-custodial parents that assisting or hiding the child will be considered a felony.
What is the Parental Kidnapping Prevention Act?
The Parental Kidnapping Prevention Act is a federal law that establishes a common standard for determining which state court will have jurisdiction over child custody cases involving parents who live in different states. The Act was legally established in 1980. The law serves to prevent parents from blocking each other’s custody rights.
Under the Parental Kidnapping Prevention Act, the child’s home state court will have complete jurisdiction over child custody matters. In addition, the Act states that the custodial parent and child must have resided in the home state for at least six months before applying. However, the regulation allows for relaxation of residence requirements if the child is less than six months old or has not resided in any state for more than the required period.
In addition, the parental kidnapping laws don’t only require a child custody order to be issued by a court in the state in which the child is located. The courts of other states must also recognize and comply with the court’s order. Also, if the parents decide to revoke or change the child custody petition, they should apply in the child’s home state.
Who Gets Custody in Parental Kidnapping Cases?
Family сourts make custody decisions based on the best interests of the child. The judge considers each parent’s ability to provide for and maintain the child’s welfare. Custody law also considers the willingness of parents to cooperate and the likelihood that the custodial parent will interfere with the relationship between the child and the non-custodial parent.
The courts do not take kindly to child abduction, so they often decide on custody in favor of the other parent. Moreover, when considering the case, the judge also considers the reasons for the parental kidnapping. And if it is proven that the abduction was for the child’s safety, the court can grant custody to the kidnapping parent.
However, judges take child abduction issues seriously. Even if the first parent acted in good faith, the court might limit the custody rights of the kidnapping parent.
The court also does not approve of the parent’s desire to limit the child’s communication with the other parent. Moreover, if there are no good reasons for doing so, the court may grant custody rights to the other parent.
When the abducting parent causes psychological or physical harm to the child, the courts will defend the child’s rights. In this case, the judge may limit the physical custody of the kidnapping parent and order a supervised visit.
If a parent has kidnapped a child due to constant cruelty or sexual or mental abuse in a family, the court will consider this when making a custody decision. If the court determines that the abusive parent poses a threat to the child’s physical and mental health, the court will order supervised visitation.
Parental kidnapping is a serious offense. However, even if you decide to do it for your child’s well-being and health, you should be prepared for the consequences. And sometimes, these consequences can mean the loss of rights to the child for you.
Therefore, when deciding on kidnapping, you should think twice. And best of all, consult with your lawyer and do everything under the law.