One parent abducting the child in the midst of a custody battle is not as uncommon as you would think. Parental kidnapping is illegal. As logical as it may seem for the parent to just run away with the child or children, this act puts the child, and ultimately the parent, in danger. A custody dispute, no matter the turn out only harms the child, in every way. For a parent to turn to illegal means to keep the child away from the other parent teaches the child fear, fear of the other parent, fear of the judicial system – fear of the world around them.
There are remedies for the return of the child. The criminal justice system will become involved and a different custody routine will be put in place to hopefully prevent future incidences of parental kidnapping.
Law enforcement does not like intervening when it comes to family disputes, whether it is custody or domestic violence; however, in these instances it is always best to contact the police immediately. When it comes to parental abduction, federal and state laws must become involved to help safely return the child. The FBI often will become involved as sometimes the abduction involves international travel. Hiring a private investigator after you have contacted law enforcement may be a good idea as the private investigator will be able to devote his or her time solely to your case. Law enforcement unfortunately can be limited in manpower.
A parent kidnapping their child is not about having the child; it is about hurting the other parent. The child is then turned against the parent (who does not have possession) by the kidnapper parent (parental alienation). Less than 1% of 200,000 to 300,000 cases of parental abduction come with credible or even provable evidence that the child was ever in real harm or danger in the custody of the parent. Nevertheless, parents do not have the right to remove the child from the custody of the other parent.
It is important to understand, parental kidnapping only occurs when there is a current court order signed by a judge setting out who has custody, who has visitation; otherwise, one parent taking the child is not kidnapping. Parents have equal rights to the child; either parent can go wherever he or she wants, vacation, visiting relatives. If the parent removes the child from the state, won’t tell the other parent where the child is located, or denies access to the child or denies visitation to the parent, this act then becomes kidnapping, despite not having a custody order. In this situation, the parent who is denied access to the child should petition the court for an emergency custody order and a warrant for the arrest of the parent who removed the child will be issued.
Going through the proper channels to relocate, petitioning the court, notifying the other parent, a parent is not abducting his or her child. It is in the keeping of a secret, not allowing the other parent access, failing to notify the court (and parent) of the move that will bring kidnapping charges. A parent may need to move for monetary reasons, a new job, moving close to family. A judge even if the parent does move without going through a court order, may require the departing parent to produce the child but often if the move is beneficial for the child, a judge will allow it. If the move is arbitrary, is not beneficial to the child in some way, often the other parent will receive sole custody, physical and legal, and the parent who moved with the child may only receive visitation.
Custody schedules are set up by the parents and memorialized in a custody order. Failing to return the child after a scheduled visit or even failing to produce the child for a scheduled visitation with the other parent may not be considered parental kidnapping. Only when the parent interferes with the court order and would be in contempt of that order would the court step in by issuing an emergency order. Before the police will become involved in any custody dispute, the custodial parent would need to produce the custody order, duly signed by the judge.
The court, being neutral, only wants what is best for the child; that being both parents involved with the child. The court is charged with maintaining the best interest of the child and if the parents are unable to come to terms with this, a judge will likely issue a bench warrant and press for charges of kidnapping against the kidnapping parent. A child has a right to access to both parents.
Naturally, once the child is returned to the lawful custodial parent, he or she wants to prevent any further instances of kidnapping. Kidnapping the child will damage any credibility the abducting parent had with the court and the abducting parent could have his or her parental rights terminated. Any interference of parental rights, the custodial (or non-custodial) parent can seek a custody modification.