Parental kidnapping is a phrase used to describe when a non-custodial parent refuses to return a child after a legal visit has ended. It may also apply to a scenario in which the custodial parent refuses to allow the non-custodial parent to see their children. While parents are the most common perpetrators, any family member or adult who transports a kid without consent may potentially commit this crime. In general, if there isn’t a custody order, you may take your kid without the other parent’s consent and face no legal consequences. However, if the kid is taken without a custody order, the other parent may petition a court for an ex parte interim custody order. These are granted if it can be shown that the kid is in imminent danger or is being transferred from California. You may be charged with abduction or kidnapping if this order is issued, and you take the child without authorization.
What is the Purpose of the Parental Kidnapping Prevention Act?
The Parental Kidnapping Prevention Act (PKPA) is a US law enacted on 28th December 1980 to set nationwide criteria for determining jurisdiction. The PKPA requires states to enforce a child custody ruling made by a sister state’s court if the decision is per the Act’s requirements. If a state custody law clashes with the PKPA, the federal statute takes precedence.
When granting full faith and credit to decisions from sister states, courts must nevertheless follow the jurisdictional requirements of the PKPA. The Supreme Court of North Carolina, for example, held in Williams v. Williams that an original Indiana custody decree did not have full faith and credit in North Carolina because the jury couldn’t have exercised jurisdiction to determine custody of one minor who had never resided outside of the state, or custody of another child, without first determining that it had subject matter jurisdiction.
Is Parental Kidnapping a Federal Crime?
Although parental kidnapping is mostly a state-level offense, a parent can face federal charges if they defy a child in custody. The broad federal statute banning kidnapping across state borders does not apply to instances in which a parent abducts their own child.
A separate federal statute, however, bans parents from leaving the United States with their children with the intent of preventing the other parent from exercising a lawful claim to custody or visitation. Of course, leaving the United States entails a trip through Mexico, which is just around 100 miles from Irvine.
If a parent is found guilty of this crime, they may face penalties and up to three years in federal prison. In addition, the parent’s record will show a serious criminal conviction. If the alleged kidnapper plans to conduct any of the following, a kidnapping accusation may be upgraded to an aggravated kidnapping charge:
- Inflict bodily harm or sexual assault on the kid
- Instill fear in the other parent of the kid.
- Enable another criminal offense to be committed through abduction.
- Obstruct the performance of a governmental or political function
Aggravated abduction is usually considered a first-degree felony and punished by up to life in prison.
Can a Biological Parent Kidnap Their Own Child?
Yes. A child can be kidnapped by their biological parent. Parental abduction is most often committed during a custody fight or a contentious divorce. Without the consent of the court or the other parent, one parent chooses to physically remove the kid. This is a serious crime in many states and may lead to prosecution.
The accused in parental kidnapping cases is the non-custodial parent, and the victim is the child. If the kid is under the age of fourteen, the sanctions are more severe. To establish the scope of the abduction, the court will consider a number of factors:
- The child’s age
- How far was the kid whisked away? (Including outside the country)
- If there were any efforts to hide the child’s identity.
- The kind of care the kid got
- If there were violent threats or harm
Parental kidnapping has a number of defenses. If they are proved, they may reduce or even eliminate any penalty. Defenses may include:
- No malicious intent,
- Good faith that the kid was in danger with the custodial parent
- Inadequate proof of the kidnapping event, or
- False allegations, to name a few defenses.
Both parents must always establish a child custody agreement if they divorce or separate. This step informs both parents of the regulations and how to adhere to them. It also aids in the protection of the child against parental abduction.
What Do You Do in the Case of Parental Kidnapping?
If you have exclusive physical custody, the other parent has no right to take your kid away from you. The other parent must return your kid or allow you to pick up the child after court-ordered parenting time or visitation.
On the other hand, if you share custody or have a court-ordered parenting schedule, the other parent has no right to take your child away from you while he or she is scheduled to be with you.
If your co-parent takes the child without permission, you have the following options:
- Call the authorities: The police will help you find your child and deliver him or her back home. If the perpetrator is found, they may proceed to file criminal charges against them.
- Contact the National Center for Missing and Exploited Children (NCMEC): The National Center for Missing and Exploited Children will help you locate the missing child.
- File criminal charges: You may file a criminal complaint against the other parent at a District Court criminal clerk’s office near you. You may also contact your District Attorney’s office and inform them that the other parent has abducted your child.
- Work with relevant charitable organizations: Sometimes, as the left-behind parent, you may be faced with challenges beyond your means – from lawyer fees to the stress of talking to the right people. This can be even worse if your child is taken outside the country. A good charitable organization will be able to help you secure a lawyer and guide you through the process of getting your child back home.
Parental kidnapping is happening even when we deny it, and it may hurt both parents and kids involved. Remember, this kind of accusation may be levied against even the most well-intentioned parents. If you’ve been charged with parental abduction or believe your ex-spouse is breaking your custody arrangement, carefully examine all of your legal alternatives and consult with a professional dealing with child abduction cases.