It is possible for a parent to kidnap their own child, but many states make a legal distinction between kidnappings, child abduction, and interference with custody. Essentially, this means that simply because a parent took their own child, they may not be guilty of the crime of kidnapping. It's important to understand exactly how each of these crimes are defined in order to determine if you or someone else may be guilty of the crime.
To start, it's important to understand that without a contradictory court order, a biological parent has the right to travel anywhere they want with their child. Couples that are married and are both living with their children will rarely have any court orders in place regarding custody, so either parent will typically have the right to take their children and travel anywhere within the United States without the permission of the other parent. Leaving the country is also usually permitted.
This means that if there is no custody order in place, a parent cannot be charged with any form of kidnapping. This is true even if the other parent does not want the children to travel. It is possible, however, to obtain an emergency court order demanding the return of the children if there are circumstances which would indicate that the children were in danger.
If you are in a situation where you do not have a court order in place, but you want to prevent your spouse or ex-spouse from taking your children somewhere, you need to contact a lawyer immediately.
Interference With Custody
A parent who maliciously interferes with a custody arrangement can be guilty of interference with custody. Typically, this part of the law applies when a parent prevents the other parent from fulfilling their court ordered visitation. An example would be a parent who denies another parent the right to see their child on their designated visitation weekend.
Be aware, however, that in order to prove interference with custody, it is necessary to show that the child or children were maliciously withheld. The court will not look favorably on complaints where a parent was held up in traffic and was late returning a child, for example. Essentially, the burden is to prove that the parent has acted in a way to deliberately prevent the other party of a custody agreement from seeing his or her child.
This crime can happen when anyone maliciously takes a child with the express purpose of hiding them from their legal guardian or guardians. While parents do commit this crime, it can also be done by any family member or adult who takes a child without permission. Typically, a person does not use threats of force to abduct a child. An example of this could be a non-custodial parent who picks up a child from school then refuses to relinquish the child to the custodial parent. In this scenario, the parent was legally allowed to pick up the child from school, but they are withholding the child from the parent or guardian who is supposed to have custody or visitation.
Kidnapping is a crime in which a child is abducted and carried a great distance while using threats or force. Child kidnappings usually starts with child abduction, but the charge is escalated to kidnappings once the perpetrator uses threats or force to keep the child.
It's important to realize that this means that not every child abduction is kidnapping. There is an actual legal distinction between the two crimes. Unfortunately, the majority of kidnappings and abduction occur with a parent or other relative who the child trusts. While this means that the vast majority of the time the child is safe, it also means that it can be very difficult for the child to realize that something is wrong until it is too late.
What Do I Do If My Child Was Abducted or Kidnapped?
Fortunately, there are things that you can do if your child is a victim of parental abduction or parental kidnapping. Even if your child was taken out of the country, it is possible to get them back.
If your child was recently abducted, the first thing you need to do is to file a police report. In some cases, the police can help find missing children, while in others all they'll really be able to do is put out an alert. However, this alert is critical to helping to ensure that the child does not board a plane or other means of leaving the country.
If the police cannot help, or if they have reached a point in their investigation where they cannot progress any further, it's time to bring in an organization that specializes in cases like this.