What happens when one parent takes a child without the knowledge or permission of the other parent? Parental kidnapping is a very real problem that can have very serious consequences. Soon-to-be ex-spouses embroiled in bitter divorce and custody disputes may want to take their children and run. Doing so, however, could result in serious jail time and/or fines.
Parental Kidnapping Laws
Parental kidnapping is illegal across the board – internationally, federally, and locally. In passing international agreements, countries across the world acknowledge the importance of protecting parental rights. Taking a child away from a parent with custody rights, or preventing that parent from obtaining access to the child, can have serious consequences.
The Hague Convention on the Civil Aspects of International Child Abduction offers legal protections on an international level. If parents are citizens of different countries, or wrongfully move a child from one country to another, the Convention may require the court hearing the case to return the child to his or her lawful country of residence.
If a parent attempts to move or does move a child outside of the country with the intent to obstruct the other parent’s rights, he or she may be guilty of a felony punishable by up to three years in prison.
The Parental Kidnapping Prevention Act also provides protections for parents and children victimized by parental kidnapping. If a parent moves a child across state borders with the intent to obstruct the other parent’s rights, the Parental Kidnapping Prevention Act grants state courts flexibility in dealing with jurisdictional issues that may arise.
It may seem counterintuitive, but elements of the crime of parental kidnapping are actually found under Illinois child abduction laws. However, a parent who kidnaps their own child may also be charged under Illinois kidnapping and aggravated kidnapping laws.
In Illinois, a parent commits a parental kidnapping if they intentionally:
- Violate the terms of a court-ordered custody arrangement by detaining or concealing a child;
- Violate a court-ordered custody arrangement by removing a child from the jurisdiction of the court granting the order against explicit prohibitions;
- Remove, conceal, or detain a child without legal consent of the mother or legal guardian if paternity has not been established or if no custody has been granted to such father; or
- Remove or conceal a child after filing a petition or being served in a legal action related to marriage or paternity before the court has issued either temporary or final custody.
If you are involved in a bitter divorce and/or custody battle and are fearful that the child’s other parent may attempt to illegally obstruct your parental right you may petition the court for an emergency order of protection. If the court determines that the other parent is a significant flight risk or likely to remove the child from the jurisdiction of the court after the order is awarded, they may grant a permanent order of protection.
Defenses to Parental Kidnapping Allegations
It is possible to be falsely accused of parental kidnapping when two parents are fighting over the custody of a child. If you or someone you know has been accused of parental kidnapping you may be able to assert a defense if:
- You have been awarded legal custody of your child and have not hidden the child from the other parent for more than 15 days;
- You have been awarded legal custody and have hidden your child from the other parent for more than 15 days, but only to escape domestic violence; or
- You have legal custody of a child but, for some reason, have been unable to safely return the child to the other parent.
The safety and well-being of a child will always be the primary concern of any court reviewing allegations of parental kidnapping.
Establish Paternity to Minimize Potential Issues
If you are a father of a child but have not had your paternity formally recognized, you may want to do so to minimize the potential for charges under Illinois’ child abduction laws. In Illinois, you may establish paternity by:
- Signing (along with the mother) the Voluntary Acknowledgement of Paternity if you and the child’s other parent are not married;
- Filing a lawsuit; or
- Marrying the child’s mother and signing the proper paternity documentation with the Illinois Department of Vital Records.
Parental kidnapping is a Class 4 Felony, punishable by 3 to 6 years in prison and fines of up to $25,000. The consequences may also include Federal punishments if the child was moved across state lines. If you have been accused of parental kidnapping, then speak with an experienced criminal defense attorney in Chicago today.