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Can Parents Kidnap Their Own Children?

Under New York State law, a person can be charged with kidnapping, a class B felony which carries a maximum sentence of 25 years, when he or she abducts another person. The New York State Court of Appeals has determined that parents can be charged with kidnapping their own children even when they have custody of them.

I want to share a case that was held before the Court. The father held a large knife to his daughter's throat and was convicted of kidnapping her. In its decision, New York State's highest court ruled that parents who engage in conduct that is so dangerous or harmful to children as to be inconsistent with the idea of lawful custody may be charged with kidnapping under New York State Penal Law.

Can the language in the Court's ruling now open the door to criminal prosecutions for kidnapping in New York State criminal courts, when parents abduct their children to a foreign country, on the basis that the conduct is dangerous or harmful to their children and inconsistent with the idea of lawful custody?

There are countless children who have been abducted to foreign countries without the other parent's consent. Under the International Parental Kidnapping Crime Act of 1993, it is a federal crime to remove children out of the country with the intent to obstruct another parent's custodial rights. However, the maximum penalty for doing so is only 3 years.

Perhaps the Court's recent decision will open the door for allowing criminal prosecutions in New York State criminal court, where penalties for kidnapping children are far more severe, and finally empower parents who have lost their children to abductions.

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New York does not automatically give custody of children to any one parent. In deciding custody, the court only considers what is in the best interest of the child. It considers who gave primary care during the marriage, scheduled doctors' appointments, and attended school meetings. Generally, the court allows the non-custodial parent ample visitation with the child and even awards joint custody. Visitation is often only limited in circumstances where there is abuse.
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