Kidnapping is a crime that is generally defined as the unlawful confinement of a person against their will that involves either moving or concealing the individual in an unknown, secret, and/or hidden location. The kidnapper may be a complete stranger or someone that the individual knows, such as a relative or close family friend.
Parental kidnapping, also referred to as parent child abduction, is a crime that falls under the overarching category of kidnapping and thus entails many of the same elements of proof. As implied by its title, the main difference between kidnapping and parental kidnapping is that the criminal act occurs when one parent “abducts” their child without the consent of the other parent in violation of a child custody order.
Accordingly, if the abducting parent still has custodial rights over the child or if there is no child custody order in place, then it most likely will not constitute the crime of parental kidnapping. It should be noted, however, that these factors may vary by state. Thus, a person who has been accused of parent child abduction should consult with a child custody lawyer immediately to determine whether they can be charged with this crime.
What are some Examples of Parental Kidnapping?
As previously discussed, one of the deciding factors in parental child abduction cases is whether the abducting parent still held custodial rights over the child pursuant to a valid child custody order.
For example, imagine that a child custody order provides that Parent A has no custodial or visitational rights over their child during the child’s summer vacation. Despite this fact, Parent A asks Parent B if they would be willing to consent to Parent A taking their child on a one-week vacation with them because they found a deal on a normally expensive vacation package.
If Parent B declines to give their permission so that Parent A may do this, then Parent A will not be allowed to take the child on vacation with them. If Parent A ignores Parent’s B wishes and takes the child on vacation with them in the middle of the night, then parent A could be arrested and charged with parent child abduction.
On the other hand, if the parents were no longer a couple, but they never obtained a formal child custody order from the court, then Parent A could probably not be arrested and charged with parent child abduction. Again, without a court order that specifies each parent’s custodial rights over the child, then both parents will still have equal parental and custodial rights over the child.
Additionally, one other factor that the court will take into consideration before making a decision is whether the individual who took the child is a biological parent or not. In other words, the legal status of the abductor will matter in the eyes of the court.
For instance, if a couple raises the child together, but only one of them is the biological parent, then the biological parent cannot be convicted of parental kidnapping. This is because the child lawfully belongs to them due to parental rights.
Are there any Defenses to Parental Kidnapping?
As mentioned above, the outcome of parental abduction cases will primarily depend on the facts of each individual case as well as the laws of each state. Thus, this also means that the defenses to parental kidnapping will vary in accordance with both of these factors.
Some potential defenses to parental abduction charges include the following:
- If the abducting parent had lawful custody over the child (e.g., there was no child custody order in place or the parent was not in violation of a child custody order);
- When the abducting parent leaves with the child to protect the child from recurring episodes of domestic violence or abuse;
- If the abducting parent already had physical custody of the child before the child custody order was issued; and/or
- When the abducting parent cannot return the child to the other parent within the time frame prescribed by the child custody order due to circumstances that were beyond their control.
Consider the following example to see how one of these defenses to parental abduction might work:
- Suppose that a court has formally issued a child custody order to Parent A and Parent B, which provides that Parent A will have physical custody over their child during the child’s summer break from school. In late August, Parent A takes the child on vacation with them a week before summer break ends and they are required to return the child to Parent B per the established child custody order rules.
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- While on vacation, a hurricane unfortunately hits the island they are staying on, stranding Parent A and the child past the date prescribed by the child custody order. Parent A immediately calls Parent B to inform them of the situation and explains that no return flights will be available until next week.
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- Angry that the child could have been hurt in the hurricane, Parent B decides to press charges against Parent A alleging that Parent A has violated their child custody order.
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- After being arrested and charged with parental abduction, Parent A raises the defense that circumstances were beyond their control (i.e., the hurricane in this scenario). If the defense is credible and accepted, then Parent A cannot be charged with parental kidnapping.
What is the Parental Kidnapping Prevention Act?
The Parental Kidnapping Prevention Act (“PKPA”) is a federal law that was passed in 1980, in order to establish a uniform standard that determines which state court will have jurisdiction over a child custody case involving parents who live in separate states. The Act also serves to prevent parents from forum shopping in such cases and to discourage parents from blocking each other’s custodial rights.
According to the PKPA, a court located in what is considered the child’s “home state” will have jurisdiction over child custody matters. The Act further defines a child’s home state to mean the state where a child and their custodial parent lived for at least six months prior to filing an action for child custody. It also prescribes guidelines for when a child is either younger than six months or if the child has not resided in any state for longer than the requisite six months.
Additionally, this not only means that a formal child custody order must be issued by a court that is in the child’s home state, but also that courts in other states must recognize and enforce the home state court’s order. Thus, if the parents ever need to modify or terminate an order for child custody, then they must file a petition with the court in the child’s home state as well.
How is the “Home State” Determined?
As discussed above, the PKPA defines a child’s “home state” as the place where they resided with a custodial parent or guardian for at least six months before filing for child custody. If for some reason there is no state that is considered to be a child’s “home state,” then the child and at least one parent must have a substantial connection with the state in which the parent is filing an action for child custody.
If neither definition applies to the situation at hand, then a court may exercise jurisdiction over the matter in cases where there is an emergency (e.g., to protect the child from serious harm) or in any court located in a place that would be in the child’s best interest.
It is important to note that a court in the child’s home state will have jurisdiction of all related child custody matters, so long as the child or at least one parent continues to live within that jurisdiction.
Can the Determination Ever Be Changed?
There are several situations in which the determination of a child’s home state may be changed. These include:
- When there is an emergency that places the child in immediate danger or in threat of immediate danger;
- If neither parent nor the child have lived in the original home state for a long period of time;
- When it would be in the child’s best interest;
- If another state has obtained jurisdiction to determine child custody;
- When a court in a child’s home state no longer has jurisdiction over the matter; and/or
- If the home state court declines to exercise jurisdiction to modify or change the determination of a child’s home state.
Enforcement of the Parental Kidnapping Prevention Act
In general, the PKPA will preempt any other laws concerning this issue because it is a federal law. This means that if there is a conflict between the laws of two separate states, then the provisions of the PKPA will govern the outcome. Otherwise, the enforcement methods provided in the laws of the home state will control the decision.
Some ways that the provisions of the PKPA may be enforced include:
- Filing a writ of habeas corpus or a motion to enforce;
- Asking the court for an injunction;
- Filing a private civil lawsuit;
- Holding a party who is in violation of such laws in contempt; and/or
- Filing any other motion requests that are available under the laws of the child’s home state.
Do I Need a Child Custody Lawyer?
If you are involved in a child custody dispute or are experiencing issues with an existing child custody order, then it may be in you and your child’s best interest to hire a local child custody lawyer for further assistance as soon as possible.
An experienced child custody lawyer will be able to guide you through the legal procedures necessary to solve the dispute. They can also recommend some options of legal recourse based on the facts of your case. Your lawyer can help you file a request to modify a child custody order or file an appeal to change the determination of your child’s home state.
In addition, your lawyer will be able to provide legal representation in court for any of these types of proceedings if necessary.
