By Divorce.com staff
Updated Jan 20, 2023
Parental kidnapping can be a complex claim to prove when there is no custody order in place. If your ex has taken your children or is accusing you of doing so, here’s what you need to know about your rights and the potential consequences of parental kidnapping.
Why Is a Custody Order Important?
The only way to legally hold parents accountable after a split is to use a custody order. A custody order provides structure in a child’s life by compelling each parent to hold up their end of the deal when caring for their children. It also imposes consequences if one parent fails to meet their obligations.
You probably won't need a custody order if your children are in their older teens. They’ll soon be legally recognized as adults, and they’ll be able to live as they choose. If your children are younger, custody orders are crucial for their well-being.
If you don’t have a custody order, there’s no official paperwork to establish where a child is supposed to be at any given time.
This can create situations where parents can abandon their children without consequence or take children without the express consent of the other parent.
What Is Parental Kidnapping With No Custody Order?
Parental kidnapping occurs when one parent takes children away from another, hides them, or makes information about their well-being inaccessible. Parental kidnapping is a crime that can result in time behind bars.
Parental kidnapping laws will vary from state to state. Some states are very lenient with parents who don’t have custody orders, especially if the children are safe. The children may need to be removed from the other parent for longer than 60 days before the situation can be considered kidnapping.
It’s essential to know your local laws. It may help to speak to an attorney if you don’t currently have a custody order and want to know your rights. An attorney will likely advise you to obtain a custody order or to contact the court if you intend to take your child on an extended vacation.
Is It Still Considered Parental Kidnapping If Children Are Removed From an Abusive Parent?
The law places a high value on the well-being of children. You will never be penalized for removing your child from harm’s way if a legitimate threat exists.
If children are removed from a situation due to imminent threat of danger, the situation may not be viewed as parental kidnapping. If one parent is in some way abusive, parents can remove their children from the situation to protect their wellbeing.
In such cases, parents must contact the police to explain why they’ve taken the children. It’s best to contact the police as soon as possible. When you arrive at your safe destination, your first phone call should be to law enforcement.
This is especially important if there’s any chance your abusive ex can track you down. You don’t want your abuser to feel emboldened and come looking for you.
If the police can confirm abuse or domestic violence allegations, the parent who worked to protect their children will not face any consequences for doing so.
The law exists to protect people from danger. You may also be granted a restraining order against the abusive person to protect you and your children. The sooner you act, the safer you’ll be.
What To Do If Your Children Have Been Kidnapped by Their Other Parent
If the other parent has kidnaped your children, you should contact the police immediately. Even if there is no custody order, disappearing with your child without your knowledge or consent can still be considered kidnapping.
Without a custody order, the typical assumption is that both parents have equal rights to parenting time with a child. You’re entitled to see your children; your ex cannot take them from you.
You will eventually need to get a custody order to prevent this situation from happening again. In the meantime, the court may be able to step in to help you. The court can have your spouse surrender your child’s passports and restrict how far they can travel with your child.
This isn’t a perfect solution, but it will prevent your ex from taking your child far away from you.
What To Do If the Other Parent Is Accusing You of Kidnapping
If you removed your child from an abusive situation and you’re hiding your children for your safety, you need to contact the police immediately.
If your ex abused your children, child protective services would get involved. They may forbid your ex from seeing your children entirely in some cases. In others, your ex may only be allowed to see your child with a court-appointed supervisor present.
If your allegations of abuse are unfounded, you may face parental kidnapping charges. It’s better to report the parent to the police before leaving with the children unless the situation is life or death.
Under any other circumstance, it’s going to take a lot of proof to establish that you weren’t kidnapping your children if you didn’t act maliciously.
If you have conversations with your ex that show that your ex understood and agreed to your children having an extended visit with you, now would be an excellent time to find those text messages or emails.
If there is any chance that you may be legitimately found guilty of kidnapping your children, you need to return your children and contact a lawyer promptly. You can face up to four years in prison if you are found guilty. Don’t take the situation lightly: you need legal help right away.
A Parent May Face Consequences for Kidnapping the Children
If a parent is found guilty of kidnapping their children, they may face jail time. Parents who have been found guilty of kidnapping their children will have difficulty obtaining legal custody of their children in the future.
It’s easy to demonstrate to a court that this parent should not be allowed visitation with children they’ve kidnapped.
If the parent isn’t charged with or convicted of kidnapping the children, the court will want to get involved to prevent this situation from happening again.
The Next Step Is To Get a Custody Order
A parental kidnapping scenario is a hard way to learn a critical lesson, whether or not a parent is ultimately convicted of kidnapping a child.
If you had a custody order in place that you could abide by, no one could be accused of kidnapping the child. If someone violates the custody order, it’s clear they’re in the wrong, and it’s straightforward to implement consequences.
Most parental kidnapping cases occur because one parent feels they cannot see their children for a reasonable amount of time. Kidnapping can be a disproportionate and wholly inappropriate response to a desire for more time with the children.
Many parents in this situation don’t realize their actions can be construed as kidnapping because the child in question is their own.
If the parent is found guilty of kidnapping the child, the parent who did not kidnap the child can petition the court for sole custody. Sole custody means the other parent doesn’t have the right to parenting time with the child. If they want visitation with the child, they may have to prove to the court that they deserve that time and that it would be safe for them.
If the parent is granted the right to visit the child, they usually won’t be left alone with the child. The court will arrange visitation at a specially designated location with the presence of a court-appointed third party. The third-party won’t get involved with visitation time unless it appears that the child is unsafe.
If the parent is safe for the children to be around, it’s beneficial to create a custody order that will work to restore relationships between parents and children.
Other Custody Options
There are several different types of custody. If one parent feels slighted or uninvolved in their child’s life, situations, such as when one parent has primary physical custody of the child, may not solve the issue. A joint physical custody arrangement is more likely to satisfy both parents.
This scenario can't happen again when you have a custody order in place. It will be apparent if someone violates the custody order, and the consequences will be immediate. There is no need to dispute or argue over the situation because a violation of this order will always be a problem.
Can You Get a Custody Order If You Were Never Married?
In certain states, children born to unwed mothers are treated differently. Mothers are assumed to have sole custody when the child is born. It’s the mother’s choice to allow the father to be involved in the child's life, and fathers have limited options if a mother doesn’t want to share custody.
Parental Kidnapping With Unmarried Parents
In this scenario, there is no such thing as parental kidnapping by the child's mother. She is free to go wherever she’d like with her child, and she doesn’t need to allow anyone to see the child. If the presumed father were to take the child without the mother’s consent, this would always be regarded as kidnapping.
If both parents agree to a custody order and file that order with the court, violations of that order may have consequences. Without a custody order, fathers have no legal path of recourse.
When Both Parents Agree to a Custody Plan
Custody is never assumed or established between unwed parents unless they file a custody order. The mother is always taken to be the sole custodian of the child unless a court order states otherwise.
Unmarried parents who have ended their relationship can file for custody the same way that divorced parents can.
The only difference is that some states require a paternity test to establish that the male is the child’s biological father. If he is not, he won’t have rights to the child. If he is, he’ll be granted the same rights as a divorced father while obtaining a child custody order.
Final Thoughts on Parental Kidnapping
While a custody order can’t prevent the act of parent kidnapping from occurring, it creates legal consequences that can help parents return their child to their legally-appointed home. Still, if your child has been kidnapped by your co-parent and you don’t have a custody order, the court may be able to restrict how far your co-parent can travel with your child.
Parental kidnapping is an extreme example of why custody orders are so important following a split, especially when younger children are involved. By legally establishing guidelines for where your child should be at any given time, you can protect yourself and your child from abandonment or parental kidnapping.