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What Is Parental Kidnapping?
The factors and laws that impact a parent being charged with parental kidnapping.
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What actions are considered parental kidnapping?
Parental kidnapping occurs when one parent hides, takes, or keeps a child without the consent of the other parent. While the definition seems clear, the real-world determination of a parent's actions as such is much more complex than many realize. Even if you think your co-parent is engaging in behaviors that constitute parental kidnapping, it may not qualify as such due to the influence of several factors.
Elements that determine whether an action constitutes parental kidnapping may include:
- Applicable state, national, and international laws
- Marital status of the child's parents
- Existence of an established parenting plan
- Establishment of paternity or other custody
- Whether a custody case is active in court
- A parent's reason for keeping the child away
The charge of parental kidnapping is a severe one, and the existence of a pre-established parenting plan can significantly affect the possibility of a parent's actions resulting in a conviction.
What are the potential consequences?
If a parent is charged and found guilty of committing parental kidnapping, they may face various civil or criminal consequences. Because they vary significantly between states due to their respective laws, possible penalties can range from minor fines to felony charges. In proven instances of parental kidnapping, a parent who's convicted of the crime can potentially lose their custody rights.
Are there specific scenarios of parental kidnapping?
Because of the variation in several influential factors, there are no tried-and-true examples of what a court would find sufficient for a charge and conviction. Two main factors that influence whether a parent's actions constitute parental kidnapping include the parents' marital status and the existence of a custody agreement.
What if we're married with no custody agreement?
Parents who are married and not actively pursuing a divorce or child custody case are free to take their children where they want since they have equal custody of their children. Even with equal custody rights, the situation can become more complicated when one parent wants to take the children out of the state against the other parent's wishes.
In some states, it may not be illegal unless one parent hides the children from the other by refusing to disclose their location. In other areas of the country, it may depend on how long the parent remains out of state with the children. In locations with more strict laws, the parent could be accused of parental kidnapping if they leave the state with the children.
If a parent is concerned their spouse is engaging in parental kidnapping, it's generally much more challenging to leverage enough evidence to prove their claims. There would need to be significant proof that one parent is trying to limit the rights of the other by not allowing the parent to see the children or purposely concealing their location.
What if we're separated with no custody agreement?
If you are the child's mother and co-parent with the child's father, you have sole legal and physical custody as long as there's no court-ordered custody agreement. If you and your co-parent have a custody agreement, your child's father could be charged with parental kidnapping if he takes your child and keeps them away from you.
If you're the child's father, you must establish paternity to have any legal standing for custody and visitation rights. The simplest way for a father to establish paternity is to be with the mother at the hospital when the baby is born to ensure his name is on the birth certificate. If you are not listed on your child's birth certificate as their father, you can go through the process of establishing paternity.
What if we're not married and have a custody agreement?
As long as there's a court-approved custody agreement in place, then the issue of parental kidnapping becomes simpler to prove. Even so, most parents who violate a custody agreement will be charged with custodial interference instead of the anticipated charge.
Some states make the distinction between the two terms by specifying that kidnapping applies when a parent willfully attempts to hide their child from the other parent. In contrast, these states define interference as when a parent purposefully disregards their custody agreement to disrupt the other parent's custody rights.
On the other hand, other states use the two terms interchangeably. For example, if one parent fails to return the kids after their scheduled visitation or does something else to violate the custody agreement, they could be charged with either version depending on the court's interpretation of the case.
What laws address parental kidnapping?
Because of its occurrence at the state, national, and international levels, various laws at each level apply to parental kidnapping or custodial interference.
How do state laws handle it?
Although not all states have a specific "parental kidnapping" statute, most state's general kidnapping laws address the issue in some shape or form. Depending on your state, laws could differ in:
- What constitutes parental kidnapping
- Whether any defenses are considered
- How severe the punishments are
- Whether custodial interference is differentiated
What is the Parental Kidnapping Prevention Act (PKPA)?
If one parent leaves a state and takes their child to file a custody agreement in a state with more favorable custody laws, this could be considered parental kidnapping and would fall under the Parental Kidnapping Prevention Act (PKPA). Enacted in 1980, the PKPA is a federal law that prevents parents from trying to avoid custody hearings in one state by moving to another state with their children.
The PKPA dictates that a child's home state, where they live for at least six consecutive months, has the jurisdiction for child custody. This law invalidates any parent's attempts to avoid custody agreements in their child's home state or file new agreements in different states. Additionally, the PKPA prevents courts from modifying another state's custody orders until a child has lived in that state long enough to consider it their new home state.
What is the International Parental Kidnapping Crime Act (IPKCA)?
In more extreme cases of parental kidnapping, a parent may take their child from the other parent to an entirely different country. To address these instances, the U.S. Congress passed the International Parental Kidnapping Crime Act (IPKCA) in 1993. The IPKCA made it a federal crime to move or attempt to move a child to another country to interfere with a parent's custodial rights.
While the IPKCA does not include a way for U.S. criminal courts to order the return of a child located overseas, the Hague Abduction Convention helps facilitate the return of children moved to foreign countries. If your home country and the child's current country are both signatories to the Convention, you can file a civil petition and pursue your child's return through its mechanisms. At the international level, the Department of State Office of Children's Issues leads U.S. efforts to prevent global parental kidnapping and help parents and children involved.
Are there protections for child abuse or domestic violence victims?
Instances of parental kidnapping often involve one parent moving with the children, even in-state, and refusing to share their location with the other parent to obstruct their court-ordered custody or visitation rights. In some cases, parents engage in custodial obstruction to protect themselves or their children from domestic violence or child abuse. Unless your state has specific guidelines for acceptable defenses, you could be charged with parental kidnapping.
Child custody is an area of the law that is highly complex, and parental kidnapping is no exception. If you are a victim of domestic violence and want to protect yourself and your children, contact a lawyer to seek legal protection, such as a protective or restraining order, against your child's other parent. If an abusive co-parent is charged with parental kidnapping, they could potentially lose their custody rights temporarily or even permanently. On the other hand, if the courts reject your protective reasoning for parental kidnapping, your custody rights may be negatively impacted.
In cases where parental kidnapping is a risk in high-conflict situations, parents must develop and follow a detailed parenting plan. A co-parenting communication service like TalkingParents can be vital for parents who need help sticking to their parenting plan and tracking parenting time failures. Our service enables co-parents to communicate about concerns or schedule changes through calls and messages, track custody exchanges in a Shared Calendar, and keep a private journal of instances of custodial interference. For parents who choose to work with a family law attorney and need to collect and present potential evidence, our Unalterable Records keep track of all interactions within our service in a format used in courtrooms nationwide.