The word “kidnapping” brings about many scary thoughts and images. You may have thoughts of movies, television shows, and even some terrifying real life news stories. But not all kidnappings are strangers lurking in the dark.  Sometimes, it is a biological parent that is the kidnapper of their own child.

Parental Kidnapping: What is it?

Kidnapping is “a person confining, restraining, or removing from one place to another a child under the age of 16 without parental consent.”  If parental consent is in the definition of kidnapping, how can a parent be guilty of kidnapping?  North Carolina law states that “if one parent violates another parent’s custodial or visitation rights by keeping the child away from that parent, it is considered parental kidnapping.”  Parental kidnapping can be the result of a parent refusing to return the child, or fleeing with the child.

In cases of parental kidnapping, it is typically because one parent is upset with what has happened in court in regard to divorce or custody. A divorce and custody could start off with both parties cooperating and able to agree to various aspects of the divorce, including custody.  But things could quickly go sour for many different reasons. Your spouse might be in relationship with someone new and you don’t want this person around your child.  It could be an issue of religion and your spouse not taking your child to church despite your custody agreement. You never know what situation might elevate a custody agreement into an ugly custody dispute.

The next thing that happens is unimaginable.  Your child does not return home when they are supposed to.  You give them a little time, thinking that they are just running late or hit traffic.  But, an hour goes by, then two, and you start to panic.  You call your ex’s phone and it goes right to voicemail.  You call everyone you can think of only to find out that your ex has moved and your child is with them.

Why Does Parental Kidnapping Happen?

While there are many reasons that a parent may disappear with their child, the main reasons include:

  • Your ex wants to get back at you/ hurt you;
  • They don’t think they are getting enough time with the child;
  • They think taking the child will help them negotiate a new custody agreement;
  • They are using the child to force the other parent into an agreement in regard to the divorce or separation.

Every case regarding child custody is different.  But the one thing to note is that in most cases, the kidnapping of your child is not about the child but about you.

What Do I do if my Child is kidnapped by Their Other Parent?

When your child is kidnapped by their other parent, there are different legal channels that you can go through for the return of your child.

Contempt: In cases where you already have a valid court order regarding custody and your spouse violates the order, you can go to court and file a motion for contempt.  The judge has to power to order the parent to be held in contempt, either civil or criminal.  In order for this to happen, you must already have a valid custody order and the other parent must violate the order.

Temporary Emergency Custody Order: In cases where the other parent leaves with your child, you can file a temporary emergency custody order.  In North Carolina, these are the five grounds that can be used to get a temporary custody order:

  • You are the one providing stability for the child in a situation that is deteriorating;
  • You are trying to prevent your child from being removed from the jurisdiction;
  • Trying to return the child to the legal custodian;
  • Protecting a child from harm, abuse, or neglect;
  • Trying to preserve status quo.

At least one of these factors must be present in your case in order to try to get a temporary custody order

Criminal Charges/Prosecution: When a parent abducts their child, they could possibly face criminal prosecution, depending on the circumstances.  For criminal prosecution, it is required that the parent is actively concealing the location of the child, not just interfering with rights of visitation for the other parent.

Parental Kidnapping Prevention Act: The Parental Kidnapping Prevention Act (PKPA) is a federal law that gives the home state of the child judicial preference when it comes to entering or modifying custody orders.  The home state is the state where the child has lived for the last six months.  The purpose of PKPA is to prevent a parent from taking their child to a different state and starting a custody action in that state in an attempt to get a better outcome.

Hague Convention: If your ex takes your child out of the country during the kidnapping, the Hague Convention is in control of the processes needed to have your child returned to you.  While every custody dispute is different in its facts and circumstances, remember that there are many legal processes to help you get your child back if you find yourself in a situation where your child has been kidnapped, whether you already have a custody order in place or not.