Kidnapping is an unlawful act wherein someone takes another person against their will or coerces another person to leave with them and keeps them captive. A kidnapper can be a stranger to the victim or someone that is very close to the victim, such as a family member.
Parental kidnapping, also known as parental abduction, is a criminal act that typically occurs when a parent takes a child without the other parent’s permission in violation of a standing child custody order.
The key to determining whether or not a parental kidnapping has occurred is to establish if there is a valid court custody order that explains the parental rights of the legal parents or guardians of the child.
So, for example, assume Parent “B” does not have visitation or custodial rights during their child’s spring break from school. However, Parent “B” found a last-minute, bargain airline deal and wants to fly to a sunny destination with their child for a few days of their spring break. Suppose Parent “B” contacts Parent “A” to let them know their plans. Parent “A” does not approve and states that Parent “B” cannot take the child during spring break. However, Parent “B” picks up their child early from soccer practice and proceeds with their plans to leave town with the child during their spring break. In this scenario, Parent “B” could be charged and found guilty of parental kidnapping.
If the scenario above slightly changed, the outcome may be very different. If the parents (“A” and “B”) were no longer together but never formalized a custodial agreement with the courts, Parent “B” would most likely not be charged with parental kidnapping. Without a court order stipulating the parental rights of each parent or guardian, Parents “A” and “B” have equal rights with regard to their child.
It is also important to note that the legal standing of a parent is also taken into consideration by the courts. If for instance, a couple has raised a child together, but one partner is not a biological parent and has never taken any formal legal action (such as adoption), they may not have any legal standing in the eyes of the court.
As with most legal matters, each potential parental kidnapping case is different. The totality of circumstances must be reviewed by the court before a final determination is made. This includes any possible legal defenses.
Some possible defenses to parental kidnapping include:
- Lawful custody: The parent may argue that they were not in violation of the standing custody order;
- Escaping domestic violence: While the parent may have been in violation of the custody order, it may be a defense if they were fleeing a domestic violence situation in order to protect themselves and their child or children;
- Already had custody of the child: If a parent already has custody of the child before the announcement of the custody and visitation order, the parent may be able to make the case that they were not in violation.
The Parental Kidnapping Prevention Act (PKPA) is a federal law that was enacted to discourage the abduction of children, especially when moving across state lines. The PKPA sets guidelines for courts to determine the child’s home state. It stipulates that a court in the child’s home state must oversee the custody question. The hope is to discourage a parent from taking their child to another state (or country) where custody laws may be more favorable to them.
In addition to determining a child’s home state to establish which court has jurisdiction on a custody matter, the PKPA also spells out other guidelines for courts to follow, including:
- Whether the child has a significant connection to a state;
- Whether there is an emergency situation; and
- Whether there is a better location for the case to be heard.
It is always a good idea to speak with an attorney if there is a question regarding a potential child custody violation. A child custody attorney can assist and present you with the best legal options available for you and your child or children. Divorces and breakups are difficult and personal experiences for all parties involved. It can be very difficult to cope with the changes that ensue due to a split, especially for a child.
Courts consider the totality of circumstances and always want to do what is in the best interest for the child. Thus, it is important that you put forward a solid case to protect yourself and your child. Learn about your rights and any potential limitations surrounding your custody matter by contacting an attorney as soon as possible.