What is parental kidnapping?

Posted on May 26, 2023 by Katie Carter

It might not seem possible, but, under the law, a parent can kidnap his or her own child.  It’s not common – in fact, it’s actually quite rare – but its something that can and does happen, and that you should be aware of.

  Parental kidnapping happens when a parent takes a child in violation of an existing court order.

To put it simply, a child cannot be kidnapped unless and until there’s a court order in place, and the parent taking the child has violated that order.

An example would be if mom had primary physical custody, and dad had parenting time every other weekend and Wednesday night dinner.  If the agreement specified that he was supposed to return the child by a certain time, and he had not – it could be kidnapping.

In most cases, it’s not that serious.  He’s supposed to have the child back by, say, 6pm, but he’s running a little late.  Maybe he’s doing it on purpose to be inconvenient or to scare the mom, but ultimately the kid is returned – and relatively quickly – safe and sound.  Sure, at the moment he didn’t return the child on time, he was violating a court order, and its possible that there would be sanctions for that, but it probably doesn’t really deserve the label of kidnapping.

Still, at the time that he is late – especially if you know or suspect that he’s running away or trying to actually kidnap the child – you can involve the authorities, and they’ll help you.  I’m not saying that the wheels of justice churn quickly, but they would start churning at least.

There is no such thing as parental kidnapping if there is no court order in place.

Without a court order, there is not parental kidnapping.  Even if your ex were to take your child to Timbuktu, it’s not kidnapping.  Both of you have full and complete access to the child, and presumably the right to travel anywhere you might wish to travel.

If your child’s father has threatened to kidnap the child, it’s a good reason to file for custody, visitation and/or child support in the juvenile courts.  That way, you can get a court order in place as soon as possible, so you could hold him more accountable legally.

He’s already left?  You can still file petitions, maybe even an emergency petition, depending on the circumstances.

Will he (or I) have access to the child’s passport?

 Often, court orders and/or custody agreements deal with travel – in and out of state, as well as in and out of country.

We often come up with specific provisions, like no out of state overnight travel, or no travel to specific foreign countries, or that the parents must agree prior to planning travel, that return tickets and travel info must be shared, or even that a certain amount of phone and/or FaceTime must be allowed during that time.  Depending on what the specific issues and concerns are in your case, we could either address it by agreement or through litigation.

What if I want to go?  Like, I want to relocate?

 Relocation is tough, especially if you’ve already got a parenting plan in place.  Even if you don’t, the court may refuse to let you move if doing so would deprive the child of access to his or her other parent.

Sometimes, its better to ask forgiveness than permission – because its so darn difficult to win a relocation case outright – but be aware, too, that in this case your child’s father could also file an emergency petition.  I’ve even seen it happen where the mother, who had moved, was ordered in an emergency hearing where she was not present, to return to the state with the children immediately.  How did she find out?  The judge literally left her a voicemail.

Not to mention that, by this point, she had incurred all the expenses involved with moving and obtaining a new place to live and had accepted a new job (and let go of the one she had in Virginia!), and the judge held a grudge against her through the rest of the case.  Is it better to ask for forgiveness than permission?  Sometimes it works.  Sometimes it really, really doesn’t.  But, ultimately, you’re in the driver’s seat, right?

If it were my kids, I can tell you that I absolutely would not go.  But, then again, that’s easy for me to say – my job and all my family are here!  I’m safe, there’s no domestic violence going on, and my kids are safe, too.  That may not be your reality.

Relocation is sometimes possible, but you’ll need to take steps to help ensure your success.  For one thing, it’s a good idea to give some thought to the independent benefit to the child!  It’s not easy, but it may be possible, depending on the facts in your case.

Remember that custody and visitation are decided based on the best interests of the child factors, and that custody and visitation are modifiable based on a material change in circumstances.

Most often, parental kidnapping doesn’t happen, but knowing (1) what it is, (2) what to do about it, and (3) how to prevent it, can go a long way towards helping you learn to coparent effectively with you ex.

For more information, to request a copy of our custody book for Virginia moms, or to schedule a consultation, give our office a call at 757-425-5200.