Parental Kidnapping & How It Affects Child Custody

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 may also come up in cases involving domestic violence and child abuse.

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

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What is parental kidnapping?

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

A note on terminology: Some states make a distinction between custodial interference — purposefully disregarding custody orders — and parental kidnapping, which they define 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 until family court issues orders outlining a legal and physical custody arrangement that divides custodial rights between them (typically included in divorce and legal separation cases).

Even when married parents live separately, if they don't have court orders for physical custody, it's not custodial interference if a parent keeps the child from the other.

However, in some states, a married parent who takes their child out of the state to keep them from the other parent can be charged with parental kidnapping, 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 court 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 and only for parents who need court assistance managing custody while the case is in progress.

If they're optional in your state and you think the other parent may try to keep your child from you, request temporary custody orders when you file for divorce or legal separation (or, if you're the respondent, when you file your answer).

If there's an urgent risk of parental kidnapping, you can ask for an emergency custody order, which is a short-term order issued immediately. Typically, courts require 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 until family court issues custody orders outlining a custody arrangement. When unmarried parents don't have a custody order, parental kidnapping only occurs when a father keeps the child from the mother.

Paternity — biological fatherhood — must be legally established before courts issue custody orders. Even if paternity is established or the father's name is on the child's birth certificate, the court must first issue custody orders awarding him parenting time before he has custodial rights.

Either parent can begin the legal process of establishing paternity and getting custody orders. Once orders are issued, both parents must follow them, and violations by either may be considered custodial interference or parental kidnapping.

If you need immediate protection against parental kidnapping, ask the court for an emergency custody order 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 may keep the child away from the other parent in order to protect themself and the child. When this happens, the abusive parent may accuse the victim of parental kidnapping (especially if the victim crosses state lines with the child).

Depending on the state's laws, the victim may face criminal charges. However, in these situations, many states allow for what's called an affirmative defense. If the parent charged proves mitigating circumstances — e.g., that the other parent was a threat to their or their child's safety — they may get the charges dismissed or significantly reduced.

If you're considering keeping your child from the other parent to protect them or yourself from violence, be aware that you may be committing a crime. Research your state's laws, seek help from domestic violence resources, and consult a family lawyer.

When the abusive parent has abducted the child or is keeping them from the other parent, whether or not they can be prosecuted depends on parents' marital status, any existing custody orders and the state's laws.

If you think your child is in immediate danger of parental kidnapping from their abusive parent, contact local law enforcement and an experienced family lawyer right away.

Who gets custody in parental kidnapping cases?

Family courts make custody decisions based on what's best for the child after evaluating each parent's ability to support their child's overall well-being — including how likely 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 and are likely to rule in favor of other parent. However, when parental kidnapping occurs, courts typically consider the circumstances that led to it, how it affected the child and if it's likely to happen again.

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

If the abducting parent causes physical or psychological harm to the child (common in parental kidnapping cases), courts will protect the child, often by restricting that parent's physical custody to supervised visitation. In these cases, the other parent may get sole physical custody.

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

If parental kidnapping is an issue in your case, you should hire a family lawyer experienced in high-conflict cases and 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

The Parental Kidnapping Prevention Act (PKPA)

The Parental Kidnapping Prevention Act (PKPA) is a federal law that, along with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), establishes national standards for child custody jurisdiction — which state has the authority to issue and modify child custody orders. This is called the child's home state.

According to the PKPA, the child's home state is where they've lived for at least six consecutive months at the time of filing for custody orders. The law also prohibits a court from modifying another state's custody orders unless the child has lived in that state for six consecutive months. (The UCCJEA creates rules for changing a child's home state.)

The Parental Kidnapping Prevention Act was enacted in 1980 to prevent forum shopping, which is when a parent tries to get orders in another state that has custody laws more favorable to them. This used to be a common an issue in parental kidnapping cases, but is less of a concern now due to the PKPA, the UCCJEA, and increased standardization of child custody laws across states.

The International Parental Kidnapping Crime Act (IPKCA)

The International Parental Kidnapping Crime Act (IPKCA) makes it a federal crime for a parent to take their child out of the country with the intent of interfering with the other parent's custodial rights.

Importantly, while the IPKCA makes it possible to investigate and prosecute someone for international parental kidnapping, it doesn't create a process to ensure the child is returned from a foreign country.

Even if a parent is charged under the IPKCA, the other parent may still face legal issues getting their child back. A parent can petition the Department of State to negotiate with the other country for the safe return of a child who's been internationally kidnapped by a parent.

If you think the other parent may attempt an international parent–child abduction and your child has a passport, ask the court to take possession of it (and possibly the other parent's) to 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 can register them with the Department of State's Children's Passport Issuance Alert Program (CPIAP), which notifies you if someone applies for a passport for them.

State laws

Each state has their own laws for custodial interference/parental kidnapping, including definitions of the crimes and how affirmative defenses — which can reduce or eliminate punishment — are considered.

For example, Colorado law allows for an affirmative defense on charges of custodial interference if the child is 14 or older, 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, which is a misdemeanor unless the parent does it more than twice or removes the child from the state. (Then it's a felony.)

Michigan law, however, allows for an affirmative defense if the child was in immediate threat of physical or mental harm from the other parent. Further, if a parent takes the child with them to a domestic violence shelter, courts do not consider this evidence of trying to keep the child from the other parent when deciding custody.

If you think parental kidnapping is a risk in your case, or if you've been accused of it, be sure to research your state's laws and consult a family lawyer.

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