When Emma Grace Kennedy was kidnapped last week by her sex offender father at a gas station, it seems like EVERYBODY knew about it right away. There were Amber Alert billboards, text messages, and stories on the news.
It’s every mom’s worst nightmare, especially for moms who are separated from their children’s fathers, but especially in cases where there’s something wrong with dad – whether he’s a sex offender, a substance abuser, a physically violent person, or something else, it adds an extra element of fear to the mix.
In these types of situations, it’s probably best to have a dose of reality first. In my line of work, I deal with clients who are fearful of this type of situation far, far more often than I deal with clients to whom something like this has actually happened. It’s quite rare, and I hope that offers you some measure of comfort. Still, as a mother myself, I can completely understand your need to know as much as you can about the law so that you can remove any possible gray area from the equation. That’s smart.
What happened with Emma Grace Kennedy?
Apparently, though it has to be noted that I am not involved in Emma Grace’s case and have gotten all my limited knowledge of it from the same media sources as everyone else, Emma Grace was abducted from her mother’s care at knifepoint by her father, a registered sex offender, in Danville, Virginia. He took her on a joyride to North Carolina, and for a couple of days, evaded law enforcement.
Emma Grace Kennedy was found, according to news sources, in good health, so all’s well (I guess) that ends well, though I can’t imagine what her mother must have been experiencing during the time that Emma Grace was missing.
For me, I can’t really separate what happened from what I do, and how it could potentially have been avoided. Of course, like in any other situation, there’s very little anyone can do to stop a madman – no protective order, no custody order, no amount of rationality – from doing something insane. I don’t know any of the parties to this case, so I can’t offer any opinion on the mental condition of anyone involved, but it has been my experience that, despite the law, sometimes things do still go wrong.
What can be done to help avoid a parental kidnapping situation?
Well, it depends. Technically, in Virginia, there’s no such thing as parental kidnapping unless one parent is taking the child in violation of an existing court order. If there’s no court order in place, then there’s no reason dad can’t have the child at any time, and vice versa.
Though I know that no piece of paper provides perfect protection from crazy situations, oftentimes custody orders are very helpful. That way, law enforcement can immediately tell that the parent who took the child shouldn’t have the child, and, because a violation of a court order is involved, they can more easily get involved.
I don’t know what happened in Emma Grace Kennedy’s case. Her father was, apparently, recently out of prison on a drug distribution charge, and I have no idea whether there was a custody order in place. Simply because he is a sex offender or did time in prison doesn’t necessarily mean that mom had sole custody, or that he didn’t have any visitation with the child. Based on the fact that the child was deemed to be in immediate danger, and that every news broadcast I read suggested that she was facing a serious threat of harm, I do assume so – but that could be an incorrect assumption.
Still, a custody order is a major form of protection, and one that is extremely important in a case where parental kidnapping is a concern of yours.
What if I’m worried that he’s violent or aggressive? I believe he might harm my child, he’s a substance abuser, or he’s a registered sex offender.
If there’s something seriously wrong with your child’s father, you have a couple of options. If you or your child is facing a threat of physical violence, you should probably go to the magistrate’s office and get a protective order as soon as possible. The child can be included on your protective order, and you can even ask for exclusive possession of the home, if you and your child’s father are living together. If the magistrate grants the protective order, it’s only temporary; you’ll have to go to court to petition the judge for a permanent protective order. But cross that bridge when you get there, and take that first step to secure your immediate safety as soon as possible.
You don’t necessarily have to have an attorney for a protective order hearing, but it’s probably advisable. The law is complicated, and judges are looking for certain things to show up in your oral argument – so, if you’re not comfortable doing some research to prepare, you may want to have someone there to help you navigate the procedure. Because of the criminal nature of the protective order, judges are hesitant sometimes to award them, so your evidence needs to be strong. Besides that, if you want to include the child, you’ll really need additional evidence. Judges don’t like to deprive parents of access to their children without good reason, so you’ll want to show good reason. (A threat of violence against you yourself isn’t enough; you’ll have to show a threat of force or violence towards the child or children.)
Filing for custody and visitation
Alternatively, you’ll have to go through the court process to win custody. Again, you’ll need evidence – and if you want sole custody and don’t want dad to have any visitation at all, you’ll need a ton of really, really good evidence.
Like I said before, just because he’s a sex offender doesn’t necessarily mean he can’t have custody. It’s a strike against him, for sure, but the judge is going to weigh all the evidence in making a decision. It’s going to depend on what the underlying offense is. I’ve seen cases where a person has to register as a sex offender for fairly unrelated offenses (not necessarily sexual abuse of a minor family member, for example) that don’t suggest that a child’s physical safety would be in jeopardy. Additionally, it’s probably also not fair to hold something, like a conviction for drug distribution, against him if you knew about it before you conceived the child, and now you’re attempting to use it to take custody from him.
All custody cases are determined based on the best interests of the child standard, and after a careful analysis of the statutory factors. The judge will weigh all the evidence in making a decision, so you’ll want to have very, very strong evidence that awarding custody to you is in the child’s best interests.
It may be a long road, but eventually it’s one you’re probably going to have to go down. If he won’t sign an agreement that gives you sole custody (and I don’t see that happen very often), and that’s the only palatable solution to you, you’ll have to petition the judge for it.
Can I ask the court to terminate his parental rights?
You can ask the court for a million dollars. As far as terminating parental rights, though, it’s right up there with that request for a million bucks.
Why? Well, it’s complicated, but, mostly because, as far as the court is concerned, SOMEONE has to be responsible for the support of that child. If no one (like, in the case of an orphan) the state has to step up to the plate, and, as you can imagine, the state does not want that. The state wants to make sure he’s on the hook for child support.
Parental rights are rarely terminated. He could give up his parental rights, say, in favor of your new husband, if he was willing to adopt (and then HE’D be responsible for child support in your child’s father’s stead, even if you separated or divorced later). It’s probably not even worth hoping for.
What if I give up my right to child support? Can he sign custody over to me?
Ummm…yes and no. Let me elaborate. You can waive or reserve child support, if you want, in order to get him to sign a custody and visitation arrangement that gives you primary physical or sole physical custody.
The only problem is that anything related to minor children is modifiable based on a material change in circumstances (and, technically, if you reserve child support, you don’t even need a material change to have child support calculated).
So, if he has an attorney, the attorney will tell him that if he gives up this time, he could still be on the hook for child support if you take him to court later. That makes him less likely to be willing to sign away his parenting time. Is it possible? Sure. But is it likely? Probably not.
He could then ask for more time, too, so also something you should be aware of. It’s probably less likely that he’ll get a ton (or, at least, not without petitioning the court a couple of times) of parenting time, but it’s possible. Depends on how the children are doing, and what the material change is, and so on.
You’re right to be asking questions, because it would be terrible to be up against what Emma Grace’s mother has been through. Custody case are tricky and take a fair degree of planning. You’re asking the right questions, and you’re in the right place!
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