So, it seems a little counter-intuitive to suggest that a parent could kidnap his/her own child, but there are times when, indeed, this sort of thing could indeed happen.
Most children are not subject to a court order for custody. When there is no custody order entered by the court, each parent has one-hundred percent (100%) custody of their children. So, for example, each parent has a right to make decisions for and about his/her children and take his/her children where ever s/he pleases whenever s/he pleases. Of course, I am describing the parents’ legal rights. Common courtesy, let alone respect for the other parent and the give and take of co-parenting, would warrant making decisions jointly with the other parent.
Unfortunately, the relationship of the parents of a child sometimes dissolves or, if they were not together, their cooperative approach to parenting can become less so or even adversarial. When that happens one parent can (and sometimes does) take his/her child(ren) to some other location without informing the other parent; that location could be across the street or across the country. If that happens, what recourse does the other parent have? Well, for the purposes of this blog post, I can tell you one recourse s/he does not have: successfully reporting his/her child(ren) as kidnapped. Remember when I said that each parent has 100% custody of his/her children above? Well, this is an important way that fact comes into play. As each parent has 100% custody of his/her children, when one parent takes his/her children with him/her to some other place without the knowledge or permission of the other, that parent is perfectly within his/her rights to do so as s/he has 100% custody of the children. As a result, that parent cannot be guilty of kidnapping as one cannot kidnap someone over whom s/he has 100% custody.
The situation changes when there is a custody order applicable to those parents and child(ren). In that case, if the parent takes the child(ren) across state lines without the knowledge and/or permission of the other parent at a time when that other parent is supposed to have court ordered custody of those child(ren), then the parent who took the child(ren) across state lines can be prosecuted for kidnapping. The difference is this: a child custody order reduces a parent’s 100% custody to something less than that; a custody order takes away each parent’s 100% custody and replaces it with a percentage of custody proportional to the other parent. So, for example, a court takes away the 100% custody from both parents and replaces it with granting, say, 70% to one and 30% to the other. When one parent exercises custody during his/her time (say during the “70%”), that means the other parent does not have custody at that time and will not have custody except during his/her “30%” time. When a parent has the child(ren) at a time when s/he does not have custody and goes across state lines, s/he is possession of child(ren) s/he does not have custody of at that moment.
To put it in a practical way, let’s say at a hearing one parent gets custody every other weekend while the other parent gets custody the rest of the time. Obviously, every other weekend is drastically less than 100% custody and losing every other weekend is modestly less than 100% custody. Either way, it is less than 100%. So, for example, if the parent with every other weekend went across state lines with the child(ren) on a weekday – a day s/he did not have custody – that would be kidnapping for which/she could be criminally prosecuted for by the Commonwealth.
Keep the above in mind when advising clients, or making decisions as a parent in a custody dispute, in order to stay on the right side of the law!