Child Abduction, Kidnapping, & Absconding

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If your child is taken from you by whatever means––deception, stealth, or force––to another county, state, or country, you as a parent are not likely to be receptive to discussion of the finer distinctions between abducting, absconding, and kidnapping. But your lawyer needs to be.  

Kidnapping and abduction are criminal acts, the former usually for the purpose of extorting some behavior or thing of value.  There was a time when kidnapping was not applied to a parent because there was no legal concept by which a parent could take his or her own child for ransom.  Abduction would have been a more appropriate term.

Kidnapping and abduction have become almost legal synonyms.  The federal Parental Kidnapping Prevention Act, by definition, does indeed apply to parents.  So does the International Child Abduction Remedies Act, the law that applies to the U.S. what is known as the Hague Convention.  Our Department of State says, "Child snatching, child stealing, and child abduction are synonymous with parental kidnapping."  The Congress of the United States agrees; the Senate included this language into the official preamble of the Act.

In Virginia, however––and in 37 other states––taking a child from the other parent is not a crime.  Unless there is a court order in place, both parents have the right to the custody of their child at any time and any place.  Any mom or any dad can take his or her child to Tibet or Tierra del Fuego permanently without telling the other parent until the parent left behind files a petition in court.  This is not kidnapping or abduction; it is absconding.

If, however, there is a Virginia court order in place apportioning parental responsibilities and custodial time of a child, and one of the parents unilaterally decides to relocate the child to, say, Nebraska or Alaska, that's a crime.  Even if no force is used, Virginia will regard it as a jailable offense.

A dozen states have gone a step further.  Unlike Virginia, these states have to some extent criminalized absconding with a child, even in the absence of any court order.  In California, for example, any person (including a parent), who takes or keeps a child to deprive a lawful custodial person (which includes the other parent) of a right to custody or visitation, commits a misdemeanor punishable by up to a year in jail.  A custody order obtained after the fact does not constitute a defense.  (Cal. Penal Code 278.5.)  In Florida, also in the absence of a custody order, it is a felony for any parent to take a child with intent to deprive another of his or her custodial rights.  (Fla. Stat. Ann. 787.03.)  In Missouri, such conduct constitutes parental kidnapping, a felony.  (Mo. Code 565.153.)

The general idea behind these statutes is if you abscond with your child knowing, or when you should know, that you are depriving the other parent to some degree of his or her parental rights, you will go to jail or prison.

Regardless of the technical distinctions, child psychologists are unanimous that the unilateral removal and relocation of a child, which is termed abduction by international, federal, and, as noted above, state law, is profoundly damaging to children.  The National Center for Missing and Exploited Children, headquartered in Alexandria, calls it "an insidious form of child abuse."  "Even the mere threat of abduction is a form of child abuse," according to a California Court of Appeals case quoted in a 2009 U.S. Department of State study, The Epidemic of Parental Child-Snatching.  "Abduction is considered child abuse because of the damage that it inflicts upon the child," observed another study that same year by the U.S. Department of Justice.

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Christian Curtis, LLC ALEXANDRIA VA
Christian Curtis, LLC ALEXANDRIA VA
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