Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jun 19, 2018

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Although family law courts discourage and frown upon parental kidnapping, many custody disputes unfortunately result in a game of tug-of-war over children. Before you participate in a seemingly strategic game of snatch and grab, you should understand what is and is not considered parental kidnapping in your state. 

What Constitutes Parental Kidnapping?

Even though many states do not have a penal code entitled “Parental Kidnapping,” most have structured their general kidnapping laws to provide for the same type of offense. Whether or not the taking of a child by a parent will constitute parental kidnapping is determined by three main factors, including (1) the legal status of the offending parent, (2) the existence of any court orders regarding custody, and (3) the intent of the offending parent. 

Until an order is entered which limits one parent’s rights or access to child, both parents have equal rights and access to a child. If a divorce or child custody suit has not been filed, then either parent can take their child and exercise custody over them. If one parent decides to take a child out of school early for an extended weekend trip, they can because there is no order limiting their right to do so. This may be annoying to the other parent, but it is not parental kidnapping. The important caveat, though, is that the person taking the child must actually be the parent of the child. 

When it comes to parental rights, it is not enough that someone has functioned as the parent. For example, if a man lives with a woman and her child for eight years and as far as the child knows and believes, the man is his father, the function of parenthood will not grant the man the same rights as a biological parent. If he wants the same access and status as a parent, he must petition a family court and obtain those rights. A parent with legal custody of their child pursuant to a court order cannot usually be charged with parental kidnapping. However, a parent who violates a custody order and then snatches or conceals a child can potentially be charged with parental kidnapping. 

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Parental Kidnapping Laws by State

Parental kidnapping laws vary by state, but generally involve a defendant abducting a person/child by holding them in a place where they are not likely to be found. Some parents are surprised to learn that their state does not require the use of force or a weapon to support the criminal charge of parental kidnapping. The unlawful retention of the child is enough to support a charge of parental kidnapping. 

Many state parental kidnapping laws are general kidnapping rules, but some will more specifically tailor their kidnapping laws to address parental kidnapping. Michigan kidnapping laws, for example, provide that a parent cannot keep a child more than 24 hours with the intent to conceal them. If your state does not have a more “tailored” statute, it will most likely include exceptions or affirmative defensives for those situations where a defendant “kidnaps” their own child. Even though Michigan prohibits a parent from keeping a child for longer than 24 hours, it does include a defense for the parent attempting to protect their child from an actual threat. 

Texas has a similar requirement that the parent’s sole intent was to assume lawful control of the child. The focus of this “lawful custody” defense is on the offending parent’s intent. If a parent kidnaps their child to punish or terrorize their ex-spouse and to also try to get lawful custody, the terrorizing intent will disqualify the parent from successfully proving their lawful custody defense.

Lawful Custody Defense and Parental Kidnapping

The “lawful custody” defense is frequently used to defeat parental kidnapping charges. However, keep in mind that this defense may not work on other charges or sanctions. If a custody order was in place, the offending parent could be charged with a lesser charge called “interference with child custody.” If the family law court has concerns that you were snatching, but not kidnapping, the family law court could also sanction you with contempt orders and require you to pay the other parent’s attorney fees incurred in getting the child back.

Getting Help

Custody battles are frustrating. They are especially difficult for parents who try to do the right thing, and extremely distressing for the children who get pulled in different directions. Before you resort to a game of tug-of-war, consult with a family and criminal law attorney to make sure that you are not tugging your way into a parental kidnapping charge.