Earlier this month a Florida mother accused of kidnapping her child was captured by officials. In this very unfortunate turn of events, we examine the topic of parental kidnapping and the implications it could have on your divorce.
Unfortunately many family court conflicts result in a game of “tug-of-war” over children. Formal agreements are signed and agreed to, in order to outline the parameters of a stable future for those children. Any violation of that agreement, including with holding a child, is discouraged by the family courts. Withholding a child from the other parent, or taking a child without notifying the other parent, could potentially be defined as an act of parental kidnapping. Each state has their own philosophy on what is and is not considered parental kidnapping, and it is important that you understand how the topic is viewed in your state.
What Constitutes Parental Kidnapping?
Even though many states do not have a penal code entitled “Parental Kidnapping,” most have general kidnapping laws to provide for the same type of offense. Whether or not the taking of a child by a parent will constitute parental kidnapping is determined by three main factors:
- The legal status of the offending parent
- The existence of any court orders regarding custody
- The intent of the offending parent.
What Parental Kidnapping is Not:
Until an order is entered which limits one parent’s rights or access to a child, both parents have equal rights and access to said child. If a divorce or child custody suit has not been filed, then either parent can take their child and exercise custody over them. If one parent decides to take a child out of school early for an extended weekend trip, they can because there is no order limiting their right to do so. This may be annoying to the other parent, but it is not parental kidnapping.
Laws Vary by State
Parental kidnapping laws vary by state, but generally, the involve a defendant abducting a child by holding them in a place where they are not likely to be found. Some parents are surprised to learn that their state does not require the use of force or a weapon to support the criminal charge of parental kidnapping. The unlawful retention of the child is enough to support a charge of parental kidnapping.
Many state parental kidnapping laws are general kidnapping rules, but some states specifically tailor their kidnapping laws to address parental kidnapping.
Lawful Custody Defense and Parental Kidnapping
“Lawful custody” is a defense frequently used to defeat parental kidnapping charges. BUT, this defense does not always work on other charges or sanctions. If a custody order was in place, the offending parent could be charged with a lesser charge called “interference with child custody.” If the family law court has concerns that you were snatching, but not kidnapping, the family law court could also sanction you with contempt orders and require you to pay the other parent’s attorney fees incurred in getting the child back.
Custody battles are frustrating. They are especially difficult for parents who try to do the right thing, and extremely distressing for the children who get pulled in different directions. Before you resort to a game of tug-of-war, consult with a family and criminal law attorney to make sure that you are not tugging your way into a parental kidnapping charge.