Kidnapping is an unlawful act or an instance of taking a person without consent, by force or fraud. Kidnappings can occur by family members, as well as strangers.
A parent who does not have legal custody of a child can be convicted of kidnapping. When a parent takes a child without the other parent’s consent, it is considered parental kidnapping.
It is also considered kidnapping when a person has confined another person without his/her consent for a substantial period of time if any of the following five requirements are met:
- Holding the individual for ransom or reward
- Using the individual as a hostage or shield
- Interfering with performance of any governmental function
- Facilitating the commission of any felony
- Inflicting physical injury on or terrorizing the victim
What is Considered Parental Kidnapping?
A parent who does not have legal custody of a child can be convicted of kidnapping. When a parent takes a child without the other parent’s consent, it is considered parental kidnapping. States do not have a specific law “Parental Kidnapping,” but most states have arranged their general kidnapping laws to provide for the same type of offense even if a parent took their child without consent of custodial parent. Whether or not the taking of a child by a parent is considered parental kidnapping, the court looks at three main factors, including:
- The legal status of the offending parent;
- If there is any existing court orders regarding custody; and
- The intent of the offending parent.
In order to convict you of parental kidnapping, the prosecution must prove the following elements:
- You maliciously took, enticed away, kept, withheld, or concealed the child from his or her lawful custodian who may be the other parent;
- The child was under the age of 18;
- You did not have right to custody of the child and
- You intended to keep or detain his or her lawful custodian.
What are the Consequences for Parental Kidnapping?
Parental kidnapping is a serious crime and if convicted you may be charged with kidnapping even though it was your own child. In the 38 states that have signed the UCCJEA, it is for example a felony to kidnap your own child. It also prevents parental abductors from obtaining custody orders outside the child’s home state. If convicted, your custodial rights may also be impacted, as this will be reported to the family court. The family court may also find you in contempt of a custodial court order in place, and could change or revoke custody/visitation rights if they find it is in the child’s best interest.
What Happens if the Child is Taken Over a State Line?
All states should recognize and enforce another states custody decision under the Full Faith and Credit Clause of the U. S. Constitution. However, many states have in the past sometimes ignored this clause because of differences in individual state laws. New federal laws have made it clear that a custody order must be followed. The federal Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) closes the loop holes for the 38 states that have signed it. States that have signed it are for example, Texas, New York, California, Illinois and Florida.
What is the Parental Kidnapping Prevention Act?
The Parental Kidnapping Prevention Act, in conjunction with the Uniform Child Custody Jurisdiction Act, is designed to promote the best interests of the child in a custody decision and to prevent parental abduction into other jurisdictions.
Prior to the establishment of the Parental Kidnapping Prevention Act, some parents attempted to avoid or nullify custody decisions in one state by moving to another and obtaining a different court order. The Parental Kidnapping Prevention Act invalidates this attempt by mandating that all states give Full Faith and Credit to the custody determination of the “home state.”
What are the Possible Defenses for Parental Kidnapping?
If you have been charged with parental kidnapping, the following defenses may be available:
- Intent: You did not have malicious intent to take the child from the custodial parent;
- Good faith: You had reasonable and good faith belief that child was in harm;
- No custody order: No custody order was in place at the time you took the child;
- Insufficient evidence: There is no evidence that links you to taking the child without consent
- Consent by Custodial Parent: The custodial parent gave you consent to take the child.
- Mistaken identity: Your identity was mistaken for someone else.
Do I Need a Lawyer?
To protect your children from a possible parental kidnapping or to try to get them back if they have been abducted, speaking with a local family lawyer to discuss what your best options are is highly recommended. Working with an experienced family lawyer can help you understand your rights and help you deal with the complicated legal system.