Most people know what kidnapping is – thanks to movies and television, most people simply assume kidnapping is forcefully abducting a person, usually a child. However, kidnapping is more common than many might think, especially when it comes to parental actions. Parental kidnapping is the illegal transport of one’s own child, and typically only comes up if a parent violates a custody agreement.
Parental kidnapping can easily happen by mistake, but it’s important to remember that ignorance of the law is not a valid excuse for breaking the law. Parents should fully understand their legal rights to their children as well as any factors that may limit their access to their children. Violating a custody agreement rarely works out in the child’s best interest and may unintentionally hurt the offending parent’s relationship with the child.
What Constitutes Parental Kidnapping?
Many states do not have specific laws against “parental kidnapping,” but have laws centered around general kidnapping laws that specifically apply to children of parents who share custody. Parental kidnapping hinges on the legal status of the parent in question, his or her intent in taking the child, and the existence of any court orders that apply to the situation.
Unless there are specific orders in a custody agreement that limit one parent’s access to the child or his or her parental rights, both parents are assumed to have equal access and rights to the child. Additionally, if no divorce lawsuit or custody lawsuit has been filed, both parents are assumed to have equivalent custody of their children. If parents have equal custody over their children, then they may take the children wherever they please, as long as doing so is legal and safe for the child. The parents need not inform one another of plans to travel. As long as the person taking the child is a legal parent, this is not parental kidnapping, even if it may be inconsiderate to the other parent.
Lawful Custody
The most common defense used against charges of parental kidnapping is claiming lawful custody. The offending parent will argue that he or she was acting lawfully and had legal rights to perform the action in question. Some states have specific guidelines in their kidnapping laws meant to handle these situations. For example, in Texas, a lawful custody claim hinges on the offending parent’s intent. If he or she took a child solely to cause distress to the other parent, this intent would disqualify them from arguing lawful custody.
If there are any custody orders in place, the offending parent may receive a lesser charge of interference with child custody. In these situations, the offending parent is typically required to pay the other parent’s legal fees. Additionally, the offending parent often loses some measure of custody and may even face fines or jail time depending on the specifics of the situation.
International Abductions
If a parent takes a child over international borders, things become much more complicated. Depending on the other country’s child abduction laws or agreements to international treaties like The Hague Convention on International Child Abduction, the responding parent may need to contact public officials and apply a mix of legal and political pressure to have the child returned. In these situations, it is vital for the responding parent to connect with an attorney with experience or specialization in international custody disputes.
Ultimately, it’s important for parents to approach custody agreements with the best interests of the children in mind, instead of attempting to spite their former spouse. When married parents have disputes over supposed kidnappings, a San Diego child custody attorney’s input will be extremely valuable in determining the legal status of the offending parent’s actions. The best way to prevent parental kidnapping issues is to have a clearly defined custody agreement and consistent, constructive communication between the parents.
