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Legal Defenses to Parental Child Abduction, Kidnapping

By Lisa M. Schaffer, Esq. on October 30, 2018 | Last updated on March 21, 2019

Parental child abduction is unfortunately not uncommon, and can have unintended devastating effects -- on the abduction parent's rights and the child's well-being. It occurs when a family member, usually a parent, kidnaps or conceals a child for any length of time. Not all states require force or fear of force when it comes to parental kidnapping; the unlawful retention generally suffices. This crime often happens during divorce proceedings, but also can occur at other emotionally heated times throughout child-rearing years.

There are a few legal defenses to this crime of which parents should be aware. But also note that these are defenses to parental child abduction. You could still be charged with a lesser charge of interference with child custody and contempt of court if there was a court order in place and your intent is questioned.

Emergencies Are Generally OK

Parental child abduction is a state crime, and as such, legal defenses will vary by state. But generally, if the abducting parents has a legal right to physical custody or visitation, you may legally keep the child longer than the allotted period of time if:

  • You failed to return your child as result of circumstances beyond your control, and notified or attempted to notify the other parent or legal custodian of the situation within twenty four hours after visitation was supposed to end and returned the child as soon as possible, or
  • You were fleeing domestic violence, or
  • You had a good faith belief that your child was in harm

Custodial Rights With No Malicious Intent

Some states allow for parents that do have custodial rights to go beyond their allotted time period without issue so long as the reason they are withholding the child for good cause, and not with the intent to deprive the custody or visitation rights of another person. For instance, in Texas, if there is no malicious intent, a custodial parent can keep a child up to three days "overdue."

No Written Court Orders in Place

Parental child abduction can only happen when a court order exists regarding the custody. If there is no order yet in place which limits one parent's rights or access, both parents have equal rights and access to the child. As an example, if one parent decides to take a child out of school early for an extended weekend trip, they can, so long as they are an actual parent to the child, and their rights are have not been legally limited. It may not look great during divorce proceedings when custody is being hashed out, but it would not be considered criminal parental child abduction.

If you have been charged with parental kidnapping, contact a local family attorney as soon as possible. Often, some rights and defenses need to be established within ten to thirty days of the alleged abduction in order to remain intact. Regardless, parental kidnapping is a serious crime, a felony in many states, that can have serious adverse affects on your parental rights, your relationship with your child, and even your career.

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