Abduction and Parental Kidnapping

Parental kidnapping is when a parent keeps their child from the other parent in violation of that parent’s custodial rights. Often called custodial interference or parent–child abduction, it typically occurs in high-conflict custody and divorce cases. It also comes up in cases involving domestic violence and child abuse.

Parental kidnapping is a crime and has significant implications for child custody.

Our private investigators get involved and document the child custody circumstances. These documents can be used in court hearings. This process is designed to aid you in your custody battle.

What is parental kidnapping?

Parental kidnapping is a broad term that encompasses multiple possible scenarios. State laws, parents’ marital status, and whether custody orders are in place are factors. The parent’s reasons for keeping the child away from the other parent are also important. These reasons play a role in determining whether parental kidnapping has occurred.

A note on terminology: Some states make a distinction between custodial interference, which they define as purposefully disregarding custody orders. They define parental kidnapping as taking the child with the intent of hiding them from the other parent. In other states, the terms are used interchangeably. Be sure to research your state’s laws and terminology.

Married and divorcing parents

When parents are married, they have equal custodial rights. This remains until family court issues orders outlining a legal and physical custody arrangement. These orders divide custodial rights between them. This is typically included in divorce and legal separation cases.

Married parents live separately. Even in such situations, it is not considered custodial interference if a parent keeps the child from the other. This applies if they don’t have court orders for physical custody.

Nevertheless, in some states, a married parent can be charged with parental kidnapping. This happens if they take their child out of the state to keep them from the other parent. This is possible even if they don’t have a custody order.

From filing to final orders, the divorce process can take two months to more than two years. While the case is in progress, the courts can issue temporary custody orders that lay out a division of custodial rights (e.g., a parenting time schedule) that usually last until the final orders are decided.

Some states automatically issue temporary custody orders for divorcing parents. In others, temporary orders are optional. They are only for parents who need court assistance managing custody. This is necessary while the case is in progress.

If they’re optional in your state, take action. Act if you think the other parent is trying to keep your child from you. Ask for temporary custody orders when you file for divorce or legal separation. If you’re the respondent, do this when you file your answer.

If there’s an urgent risk of parental kidnapping, you can ask for an emergency custody order. This is a short-term order issued instantly. Typically, courts need proof of the other parent’s intent to remove the child from the state.

Once an emergency, temporary or final custody order is issued, both parents must follow it. Violations can result in charges of custodial interference or parental kidnapping and impact the court’s final custody decisions.

Unmarried parents

When parents aren’t married, the mother has full legal and physical custody. This remains until family court issues custody orders outlining a custody arrangement. If unmarried parents don’t have a custody order, only a father keeping the child from the mother means parental kidnapping.

Paternity — biological fatherhood — must be legally established before courts issue custody orders. Paternity or the presence of the father’s name on the child’s birth certificate is not enough. The court must first issue custody orders awarding him parenting time. Only then does he have custodial rights.

Either parent can start the legal process of establishing paternity and getting custody orders. Once orders are issued, both parents must follow them. Violations by either parent are considered custodial interference. Such violations can also be seen as parental kidnapping.

If you need immediate protection against parental kidnapping, ask the court for an emergency custody order. Do this when you open or respond to your paternity and custody case.

Parental kidnapping, domestic violence and child abuse

In situations involving domestic violence and child abuse, the victim can keep the child away from the other parent. This is done to protect both thyself and the child. When this happens, the abusive parent can accuse the victim of parental kidnapping. This is especially true if the victim crosses state lines with the child.

Depending on the state’s laws, the victim faces criminal charges. Yet, in these situations, many states allow for what’s called an affirmative defense. If the parent charged proves mitigating circumstances — e.g., the other parent was a threat to their safety. Their child’s safety was also at risk. They get the charges dismissed or significantly reduced.

You want to protect your child or yourself from violence by keeping them from the other parent. But, be aware that you are committing a crime. Research your state’s laws, seek help from domestic violence resources, and consult a family lawyer.

If the abusive parent has abducted the child, prosecution depends on parents’ marital status. It also depends on whether the abusive parent is keeping them from the other parent. It also depends on any existing custody orders and the state’s laws.

If you believe your child is in immediate danger of parental kidnapping, contact local law enforcement right away. Also, reach out to an experienced family lawyer promptly.

Family courts make custody decisions based on what’s best for the child. They evaluate each parent’s ability to support their child’s overall well-being. This includes assessing how they are to support their child’s ongoing relationship with the other parent.

Custody courts do not look favorably on parents who have kept their child from the other parent. They are to rule in favor of the other parent. But, when parental kidnapping occurs, courts typically consider the circumstances that led to it. They assess how it affected the child. They also decide if it’s to happen again.

Even if the child wants to be with the abducting parent, keeping a child away is typically considered evidence. This shows that the parent is not going to support the child’s relationship with their other parent. Judges take this very seriously and will limit the offending parent’s custodial rights.

If the abducting parent causes physical harm to the child, courts will take action. Parental kidnapping cases are common. The intent is to protect the child. They often protect the child by restricting that parent’s physical custody to supervised visitation. In these cases, the other parent often gets sole physical custody.

If the parent accused of parental kidnapping is the victim of domestic violence, judges often take this into account. If the parent acted to protect the child, this is also considered when making custody decisions. If the abusive parent is a threat to the child’s safety, the judge will restrict that parent’s physical custody. They limit it to supervised visitation. They also order supervised exchanges to limit parents’ interactions.

If parental kidnapping is an issue in your case, take action promptly. Hire a family lawyer experienced in high-conflict cases. Make sure they are knowledgeable about parent–child abduction. If you can’t afford a lawyer, look into legal aid, modest means legal programs and law clinics in your area.

Parental kidnapping laws

Hague Convention on the Civil Aspects of International Child Abduction

About 80 countries join in the Hague Convention, including Australia, Canada, Ireland, the UK and the US. These countries have agreed to cooperate to find and return children who have been illegally moved between member countries. Each member country has a point of contact dedicated for this purpose.

For a parent to receive help under the Hague Convention, they must already have legal rights regarding the child (e.g., a custody or visitation order). Someone believe they’re a parent, but if not recognized as such by law, they don’t have recourse. Additionally, without court-ordered rights, they lack recourse under the Hague Convention. This is one reason it’s important for unmarried parents to get a parentage (paternity) order and a custody order.

International Parental Kidnapping Crime Act (IPKCA)

The International Parental Kidnapping Crime Act (IPKCA) makes it a U.S. federal crime. It prohibits a parent from taking their child out of the country. This is especially true if the intent is to interfere with the other parent’s custodial rights.

Importantly, the IPKCA makes it possible to investigate and prosecute someone within the US for international parental kidnapping. Yet, it doesn’t create a process to guarantee the child is returned from another country.

Even if a parent is charged under the IPKCA, the other parent still faces legal issues. These issues can arise while getting their child back. A parent can petition the State Department. They can negotiate with the other country. The goal is the safe return of a child kidnapped internationally by a parent.

If you think the other parent will try an international parent–child abduction, and your child has a passport, take action. Ask the court to take possession of your child’s passport. It is necessary to also take possession of the other parent’s passport. This will prevent them from leaving the country with your child.

If your child is a U.S. citizen and doesn’t already have a passport, you should register them with the Department of State’s Children’s Passport Issuance Alert Program (CPIAP). This program will inform you if someone applies for a passport for them.

Parental Kidnapping Prevention Act (PKPA)

The Parental Kidnapping Prevention Act (PKPA) is a U.S. federal law. Along with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), it establishes national standards for child custody jurisdiction. It determines which state has the authority to issue and change child custody orders. This is called the child’s home state.

The PKPA states that the child’s home state is where they’ve lived for at least six consecutive months. This is determined at the time of filing for custody orders. The law also prohibits a court from modifying another state’s custody orders. The child must have lived in that state for six consecutive months before any modifications. (The UCCJEA creates rules for changing a child’s home state.)

The Parental Kidnapping Prevention Act was enacted in 1980. Its purpose is to prevent forum shopping. Forum shopping occurs when a parent tries to get orders in another state with custody laws more favorable to them. This was a common issue in parental kidnapping cases. It is less of a concern now due to the PKPA. The UCCJEA and increased standardization of child custody laws across states also contribute.

Uniform Child Abduction Prevention Act (UCAPA)

Under the Uniform Child Abduction Prevention Act, a parent or prosecutor can ask for abduction prevention measures. They must give their child’s identifying information and explain the risk that a specific person poses to the child. This law is intended to help U.S. states work together to prevent abduction; nearly half of states have enacted it.

State laws

Each state has their own laws for custodial interference/parental kidnapping. These laws include definitions of the crimes. They also explain how affirmative defenses are considered. Affirmative defenses can reduce or remove punishment.

For example, Colorado law provides an affirmative defense on charges of custodial interference. This applies if the child is 14 or older. The child must have instigated the removal and was not taken for a criminal purpose.

Georgia, on the other hand, doesn’t have any laws addressing affirmative defense for custodial interference. It is considered a misdemeanor unless the parent commits the offense more than twice. It is also a misdemeanor if the parent removes the child from the state. (Then it’s a felony.)

Michigan law, nonetheless, allows for an affirmative defense. This applies if the child was in immediate threat of physical harm. It also applies if the child faced mental harm from the other parent. Further, if a parent takes the child to a domestic violence shelter, the courts view this differently. They do not count it as preventing access to the other parent. The courts do not consider taking a child to a domestic violence shelter as blocking access to the other parent. This is important when deciding custody.

If you think parental kidnapping is a risk in your case, research your state’s laws. If you’ve been accused of it, also consult a family lawyer.