Understanding Parental Kidnapping Laws

 Posted on November 05, 2014 in Family Law

A terrible divorce can have an assortment of unintended consequences. Specifically, the parent of a child may make the brash decision to remove the child from the home or even from the state or country before or after an adverse custody decision is handed down by a court. When this occurs, a variety of laws exist in order to punish the kidnapping parent, and also to ensure that the kidnapped child is returned to his or her rightful guardian. The fact that parental kidnapping laws exist at the local, state, federal, and international level illustrates the real complications that can result from parental kidnapping and other related child custody disputes.

The Federal and International Laws Regarding Parental Kidnapping

Parental kidnapping can occur at the international level, when each parent is a citizen of a different country.  As a result, international law has provided a variety of legal protections and conventions. Under the Hague Convention on the Civil Aspects of International Child Abduction, in parental kidnapping disputes before the U.S. courts, such courts must order the return of a child to the country of his or her habitual residence when it has been found that the child in question was wrongfully detained and/or removed to the United States. Parental kidnapping issues can arise in cases where one parent is a U.S. citizen and the other parent is a foreign national, who decides to return to his or her home country with the child and without the other parent's consent. Federal law provides that when a parent removes or attempts to remove a child out of the U.S. with the intent to obstruct the other parent's lawful exercise of parental rights, the removing parent could be subjected to a felony conviction punishable by no more than three years in prison. Furthermore, the Parental Kidnapping Prevention Act (PKPA) was enacted in order to mitigate the complicated jurisdictional conflicts that can arise in child custody cases, such as parental kidnappings, by facilitating mutual cooperation amongst the various state courts.

Illinois Laws and Parental Kidnapping

In Illinois, parental kidnapping is covered under child abduction laws, which define the following acts as constituting the felony act of “child abduction”:

• Intentionally violating the terms of custody court order by detaining or concealing or removing a child from the jurisdiction of the court granting the order;

• Intentionally violating a court order prohibiting the removal, concealment or detainment of a child by removing the child from the jurisdiction of the court granting the order;

• Intentionally removing, concealing or otherwise detaining a child without the legal consent of the child's mother or lawful custodian if the other parent is a putative father and either the child's paternity has not been legally established or the child's paternity has been established but no custody orders were presented; or

• Intentionally removing or concealing a child after filing a petition or being served with process in legal action related to marriage or paternity, but preceding the issuance of temporary or final custody order.

If you believe that your child's parent may soon take your child without your consent to a different state or outside of the country, there are legal protections that can be exercised. An emergency custody order can be issued by the court, which can later be replaced by a permanent restraining order if the child's other parent presents a real flight risk, or other risk to the safety and/or lawful custody of the child.