Can Parents Kidnap Their Child? – A Guide to Custody and Parental Kidnapping

There are many instances where different fields of law intersect with each other. At the cross-section of family and criminal law is parental kidnapping: when one parent violates a custody agreement and takes their child without the other parent’s consent. 

Parental kidnapping is very serious and can lead to many undesirable outcomes for both parents involved. Though there are reasons why a parent might void their custody agreement for the safety of their child, there are legal consequences regardless. Read on to learn more about: 

  • Kidnapping versus Parental Kidnapping—knowing the difference; 
  • The Parental Kidnapping Prevention Act, national and international; and
  • Common Defenses in kidnapping and how to approach kidnapping in court. 

The Types of Kidnapping

Before better understanding parental kidnapping, it is important to understand kidnapping at its core. We’ll eventually talk about the laws governing custody; there are significant connections between parental kidnapping laws and the legal definition of kidnapping. 

Maryland’s Law Code defines kidnapping as forcefully carrying or concealing a person, whether in or outside the state. This is a felony crime and carries an imprisonment term of up to 30 years. 

This does not include parental kidnapping—this is a separate crime in the Law Code. It also does not include the crime of child kidnapping: the crime of abducting a child from the custody of both their parents. 

Parental kidnapping involves one parent taking their child without the consent of another parent that either violates a custody order or blocks another parent’s custody rights. There are nuances to how courts and lawyers approach parental kidnapping cases. Though it can be a difficult process, you should know the difference between the types of kidnapping and the laws made regarding parental kidnapping. 

Know the Laws: The PKPA and IPKCA

Courts enshrine the promotion of a child’s best interests. With kidnapping being as serious a legal charge as it is, involving your children can exacerbate the stress of a normal divorce. 

Lawmakers, too, thought about how these might affect a child. There are two acts pertinent to cases regarding custody and parental kidnapping. 

In 1980, Congress passed the Parental Kidnapping Prevention Act (PKPA) to help resolve issues stemming from jurisdiction conflicts. 

A kidnapping that takes place across state lines raises many legal flags. For example, which state’s custody laws apply to the child now that they’ve lived in two states? What defines a child’s ‘home state’ with regards to where the child lives and how the courts address the kidnapping? 

The PKPA solves many of these issues. Being a federal law, courts defer to it over conflicts between state laws when trying to determine a case’s jurisdiction. It further defines the concept of a child’s home state: the state where the child and their parent lived for at least six months before they filed the custody action. 

If there isn’t a home state, the PKPA also has a significant connection condition, which says at least one parent must have a substantial connection with the filing state. This prevents the removal of a child from one state-to-another in an effort to establish quick residence to block another parent’s custodial rights. 

Now, there are cases where a parent might take their child outside the United States to achieve the same effect without federal jurisdiction—lawmakers accounted for this, too. In 1993, Congress passed the International Parental Kidnapping Crime Act (IPKCA) to protect children wrongfully removed from the United States or outside the U.S. 

If you take your child out of the country with the intent to block your spouse or ex-spouse’s custody rights, you may face up to three years in prison, thanks to the IPKCA. 

Do keep in mind though, the law is not all-encompassing. If a prosecutor successfully brings charges against your child’s other parent, and even if they’re sentenced for the crime, the IPKCA does not have a mechanism in place to demand the return of your child. For this, you will need to contact the State Department for help with any return efforts. 

Though this may be disheartening, the law itself is there to protect your custodial rights as a parent. An experienced lawyer can advise you on how to facilitate the filing of a custody claim and any subsequent issues arising from it. 

Defense Options, Protections, and Keeping Your Child Safe 

It’s important to know legal issues are never black and white—same can be said with parental kidnapping. There are defense options and built-in considerations the court may hear in the event an abduction occurs. However, know there are far less extreme (and legal) options you can turn to in place of kidnapping. 

In certain cases, someone might take their child out of state in fear of their child’s safety—that is, if they’re subject to physical or sexual abuse of any kind. This is a very serious issue the court will not forget in the case of a parental kidnapping charge. Though the extra-judicial path to safeguarding your child may be preferable in the short term, alerting authorities and petitioning a modification to your existing divorce and custody agreement can keep you out of legal trouble. 

As mentioned, courts rule to the child’s best interest. If you can provide evidence of abuse, they will fully consider it. Hiring a lawyer who can champion your best interests, too, is key to making sure your family stays safe. 

Another case may arise from a parent keeping their child past their allotted time, which could be dependent on multiple factors. For one, a parent might be unable to transport their child to their ex-spouse because of a natural or man-made disaster. If the other parent presses charges on the grounds of parental kidnapping, the other parent could claim the extenuating circumstances prevented them from returning their child. 

In any case, you will want to hire a lawyer versed in family law and custody rights to assist you at any point of the process. Our team of lawyers have many years of combined experience serving people in need of help settling their divorce—contact our offices for a free initial consultation.