Kidnapping is a criminal offense that is defined, in general, as an unlawful confinement of an individual against their will that involves either concealing or moving the individual in an unknown, hidden, or secret location. A kidnapper can be a complete stranger or an individual that the victim knows, for example, a close family friend or relative.
Parental kidnapping, or parent-child abduction, is a crime that falls under the overall category of kidnapping. This means that it has many of the same elements of proof.
The difference between kidnapping and parental kidnapping is that the criminal act of parental kidnapping occurs when one parent abducts their child without the consent of the other parent and abducts their child without the consent of the other parent in violation of a child custody order.
If the abducting parent has custodial rights over the child or if there is not a child custody order in place, a parent likely cannot commit parental kidnapping. It is important to note, however, that the factors can vary by location.
If an individual has been accused of parent-child abduction, they should consult with a child custody lawyer as soon as possible to determine whether or not they can be charged with the crime.
What Is International Parental Child Abduction?
In some cases, a parent will take their child overseas unlawfully. This is referred to as international parental child abduction.
What Can I Do if My Child Has Been Taken Overseas Without My Consent?
Child abduction is a very stressful situation. What an individual can do when their child is taken overseas without their consent will depend on whether or not the abducting parent took the child to a country that is a member of the Hague Convention.
If so, then there are specific procedures an individual could follow to have their child returned. An individual should also file a missing persons report with their local police department.
Law enforcement can put the data into a computer server and request through INTERPOL, the international police association, that a search be conducted by law enforcement in the country where the individual suspects their child is located.
What Is the Hague Convention?
The Hague Convention on the Civil Aspects of International Child Abduction is an agreement entered into by certain countries to ensure the return of abducted children to their home countries. The purpose of this convention is to protect children internationally from the harmful effects of the wrongful retention or removal and outline procedures for the child’s prompt return.
It is important to note that the Hague Convention only applies to member states. An individual will be required to provide their attorney with basic information, such as:
- A certified copy of their custody decree from a United States or foreign court;
- What steps the individual has taken to contact the abducting parent or their relatives and friends.
Why Are Custody Decrees Important?
In many states in the United States and in many foreign countries, the parents share equal legal custody. In these cases, it would not be illegal for one parent to take the child outside of the country.
If an individual is considering a divorce or separation, they should obtain a legal decree of child custody. If an individual prefers having joint custody, then they should make sure to obtain a decree that prohibits the travel of their child without their permission or that of the state court.
U.S. State Department Assistance
The United States State Department considers cases of international parental child abduction to be top priority. The State Department will provide aid to parents in recovering their children.
In situations when the Hague Convention applies, the State Department may help with applications to the foreign country where the child was taken. In other situations, the State Department will help locate the child as well as help arrange visits.
The Department of State (DOS) can also provide a parent with information about the legal system of the country to which the child was taken, as well as a list of lawyers in that country.
What Is the Punishment for International Parental Child Abduction?
The International Parental Kidnapping Crime Act (IPKCA) makes federal international kidnapping a criminal offense. It makes it a federal offense to remove or attempt to remove a child from the U.S. or retain the child outside of the United States with the intent to obstruct the other parent’s custodial rights.
If an individual is convicted of this offense, they may face up to three years of imprisonment.
How Do I Stop My Child From Being Taken Out of the Country?
The most important step an individual can take to prevent their child from being taken out of the country is a well-drafted court order that includes detailed parenting time schedules that specifically outline the locations and times when the child is supposed to be with each parent.
It is important to be aware that if a parent does want to travel overseas with their child, such as to visit family in their country of origin, they can sign a detailed travel consent form along with the other parent.
If an emergency situation does arise, the parent or the parent’s representative should contact law enforcement as well as the Office of Children’s Issues at the United States State Department to speak with a country officer. They are available 24 hours per day, 7 days per week.
What if My Child Has Been Taken to a Country Not a Signatory of the Hague Convention?
If an individual’s child has been taken to a country that is not a member of the Hague Convention, they should consult with a child custody lawyer in the country where their child has been taken to. Or, they should have their lawyer do so for them.
The DOS cannot act as an individual’s attorney or representative.
Are There Any Defenses to Parental Kidnapping?
The outcome of a parental kidnapping case will depend on the unique facts and circumstances of each individual case as well as the laws of the state. This means that the defenses that may be available in parental kidnapping cases will also vary in accordance with these factors.
Examples of possible defenses to parental abduction charges may include the following:
- If the alleged abducting parent had lawful custody of the child;
- In other words, if there was not a child custody order in place or if the parent was not in violation of a child custody order;
- When the alleged abducting parent takes the child to protect them from recurring episodes of domestic violence or abuse;
- If the alleged abducting parent already had physical custody of the child before the child custody order was issued; or
- When the alleged abducting parent could not return the child to the other parent within the time frame outlined in the child custody order because of circumstances that were beyond their control.
Should I Hire a Lawyer?
If you have any issues, questions, or concerns related to a child custody order or if you are involved in a child custody dispute, it may be in the best interests of both you and your child to consult with a local child custody lawyer as soon as possible. Your lawyer can guide you through the legal procedures that will be necessary to resolve the issue.
Your lawyer can also help you request a modification of a child custody order if necessary.
