Kidnapping. Enter terrifying thoughts of sketchy vans, dark basements, and ransom notes. We think of movie plots, and the horrific real life stories of those like Elizabeth Smart.
But this image isn’t indicative of every kidnapping. Sometimes kidnapping takes a much different shape; believe it or not parents can actually be guilty of kidnapping their own child.
What is Parental Kidnapping?
The North Carolina statute on kidnapping details that kidnapping is the result of a person confining, restraining, or removing from one place to another a child under the age of sixteen without parental consent. So how can a parent be guilty of kidnapping?
According to North Carolina law, if a parent violates another parent’s custodial or visitation rights by keeping the child away from that parent, it is considered parental kidnapping. This is the result if a parent simply refuses to return the child, and when a parent flees with a child.
In these cases the kidnapping is usually the result of a parent unhappy with divorce or custody proceedings. We all know that custody battles can get nasty. Things may start off fairly amicable; you may agree to property division and spousal support fairly quickly. You may even agree to custody terms. And then things start to deteriorate.
Maybe your spouse is has a new significant other and now this person you don’t even know is constantly around your child. Or maybe your spouse refuses to take your child to church like you had agreed, or wants to put your child on a specific diet you disagree with. Perhaps there are overbearing grandparents elevating your custody issues or one parent has significantly more resources than the other. There are countless reasons why you may find yourself engaged in a bitter custody dispute with your former spouse.
Then the unthinkable happens. Your ex doesn’t return your child as promised. You panic, rightfully so. You find out that your former spouse has moved to Virginia to pursue a new job and has taken your child with them. What do you do? Where do you even begin? How did this happen? A million questions will enter your mind.
Why does this happen?
There are many reasons why a parent may be inclined to run with the child.
- He or she wants to hurt you
- They feel like they don’t get enough custodial time
- To extract some sort of agreement on custody
- They are using the child as leverage to force to agree to other separation terms
While facts and circumstances surrounding each custody case are different, you may notice an underlying theme to bullet points above; more often than not the kidnapping is about you and not your children.
What do I do?
Thankfully, there are legal channels in North Carolina that allow you to address parental kidnapping.
If you have a valid court order on custody, and your spouse frustrates the visitation schedule or refuses to abide by it, you may file a motion for contempt. To sanction the disobedient parent, the judge can order that the parent be held in either civil or criminal contempt. Keep in mind that this option is only available if you have an order on custody, and the parent has violated the terms of the order.
2. Temporary Emergency Custody Order
In the event that your ex has fled with your child. There are five grounds in North Carolina that allow a parent to get a temporary custody order:
- Provide continuing stability in a deteriorating situation
- Preserve the status quo
- Prevent a child’s removal from the jurisdiction
- Return the child to an appropriate custodian
- Protect the child from harm, neglect or abuse
If any of these is present in your case, you may be able to get a temporary emergency custody order in place. We discuss this in greater detail in our article: Child Custody.
3. Criminal Prosecution
Depending on the circumstances, a parent who abducts a child may also face criminal prosecution. For these charges to be brought a parent must do more than simply interfere with visitation rights of the other parent. For criminal prosecution to be successful the parent must truly conceal the whereabouts of the child from the other parent.
4. Parental Kidnapping Prevention Act
Otherwise known as the ‘PKPA,’ this federal law gives jurisdictional preference to the home state of the child when it comes to entering and modifying existing custody orders. The PKPA establishes that the home state is the state in which the child resided within the past six months .The act addresses the issue of forum shopping (initiating custody in a different state in hopes of getting a more favorable ruling) being used in cases of parental kidnapping in which one parent interferes with the custodial rights of another parent.
5. The Hague Convention
We discuss this further in our article: International Child Abduction, but if your ex’s kidnapping resulted in the child being taken to another country, the Hague Convention controls the process to retrieve the child.
The facts and circumstances in every custody dispute are different, but rest assured that if you find yourself in this terrifying spot there are legal processes in place that can help you retrieve your child, regardless of whether you have a custody order in place.