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Custody fights are never pretty. But, they can turn particularly ugly when parents resort to kidnapping their own children.
Over 200,000 parental kidnappings occur each year. Parental kidnapping can be as drastic as taking the child to another country, or as innocuous as preventing visitation. The laws regarding parental kidnapping do vary from state to state.
Below, we discuss whether three common situations that can fit the definition of parental kidnapping:
1. My Spouse Won't Let Me See My Kids.
Sometimes, family disputes can result in one parent moving out of the family house. Even though there is no divorce order or custody order yet, mom might prevent dad from seeing the kids, or vice versa.
In California, this would violate Penal Code section 278.5, which states, "Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody ... shall be punished by imprisonment." If there have been no court orders limiting the custody rights of one parent or the other, both parents have the right to custody of the children.
However, there is not much the estranged parent can do to enforce this right without a court order. Police are often hesitant to interfere in domestic issues unless there is a valid court order or a reasonable belief the children may be in danger.
2. My Ex-spouse is Withholding Visitation.
In some states, withholding visitation or refusing to return a child after visitation can be considered parental kidnapping.
In Michigan, Penal Code section 750.350a states, "[A] parent of a child shall not take that child, or retain that child for more than 24 hours, with the intent to detain or conceal the child from any other parent ... who has custody or parenting time rights under a lawful court order at the time of the taking or retention."
In Hawaii, it is a crime of custodial interference to intentionally violate a court order by taking, concealing, or detaining a child from someone who has legal custody of the child.
If your ex-spouse is withholding visitation in violation of a court order, it could be parental kidnapping.
3. My Spouse Took The Kids Without My Permission.
If you and your spouse are still married, but living apart with no custody court order, it is not illegal for one parent to take a child, as long as there is no intent to deprive the other parent of custody. For example, one parent takes the child on a weekend fishing trip even though the other parent doesn't agree. This is not parental kidnapping
If there is a court order giving you full custody of your child, and the other parent takes the child, outside of his allowed visitation, this is parental kidnapping. To prevent possible parental kidnapping, you want to have a court order specifying your custody rights. An experienced local family law attorney will be able to help.