When parents don’t get along, disagreements about child custody and visitation can get heated. In extreme situations, a parent may even flee to another city, state or country to prevent the other parent from having access to their child. The question is: When is it kidnapping to take your child away and out of the other parent’s reach?
What is parental kidnapping?
Parental kidnapping is considered a crime in Texas. Unlike the majority of custody-related issues that are handled by child custody lawyers in the civil courts, parental kidnapping charges are addressed by criminal lawyers in the criminal courts.
So, what is considered kidnapping or parental abduction? In general, if a parent takes a child under that age of 18 away from another parent in violation of a judge’s orders forbidding them to do so, that parent may be charged with parental kidnapping under Texas Penal Code §25.03, Interference with Child Custody.
The judge’s orders in question include both temporary orders and final orders for child custody. In other words, if you are going through a divorce and have temporary orders in place that name the other parent as the primary conservator, you can’t take your child and fly off to Disneyland for a week without the other parent’s consent. You have to follow the visitation schedule laid out in your orders.
Can a parent kidnap their own child USA? According to Texas Penal Code §25.03—the Texas parental kidnapping law referred to as Interference with Child Custody—a person who takes or retains a child under age 18 could be committing an offense under this statute when:
- The person knows that the person’s taking or retention violates the express terms of a judgment or order, including a temporary order of a court disposing of the child’s custody;
- The person has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child’s custody has been filed, and takes the child out of the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, without the permission of the court and with the intent to deprive the court of authority over the child; or
- Outside of the United States with the intent to deprive a person entitled to possession of or access to the child of that possession or access and without the permission of that person.
The statute also states, “A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the child to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child.”
Concerned parents also wonder: Taking a child across state lines is it kidnapping? If you take a child under the age of 18 across state lines and deprive the person who is entitled to possession and access to that child by doing so, you may be committing the offense of parental kidnapping (interfering with child custody).
Is parental kidnapping a felony in Texas?
Yes, as noted in the statute, Texas Penal Code §25.03(d), an offense of interference with child custody is considered a state jail felony in Texas. Parents convicted of a state jail felony for this offense could face up to 2 years in jail and up to $10,000 in fines.
A parent may face additional jail time and fines if the offense occurs in conjunction with other crimes, including child abuse and/or if a weapon was used during the crime. Since parental kidnapping and associated charges are considered criminal offenses, you should consult a criminal lawyer if you are either accusing someone of parental kidnapping or have been accused of parental abduction yourself.
We know occasions may arise where our child custody clients to need advice from a criminal attorney during their divorce and child custody cases. Consequently, our family law firm works closely with criminal lawyers and will refer clients when the need arises.
Parental kidnapping no custody order:
What if you don’t have any custody orders in place?
Is it kidnapping to take your child if you don’t have orders in place? In general, both parents have a right to have access to their child (unless a parent’s parental rights have been terminated). If you don’t have any orders in place, you also don’t have any orders to enforce.
In most cases, parents will also find it very challenging to get law enforcement involved when you have two biological parents who haven’t pursued court interventions, yet they are feuding over who has the right to the child when there are no orders in place. As long as the issue is not a matter of safety or endangerment to a child and it’s not breaching the peace, law enforcement will likely tell you, “This is a civil matter, take it to court, go get some orders,” because both parents have a right to that child.
If you’re in a situation where you don’t have orders, your child’s other parent has taken the child and they won’t tell you where the child is, contact a family law attorney. An attorney can help you take steps to get orders put in place that gives you custody and access, so you can default the other parent and move ahead with enforcing your rights to custody and access.
Parents who don’t plan to marry or stay together need to be thinking about establishing custody orders when they first know they are pregnant and not wait until the child is born. If you find yourself in this situation, start thinking about what custody and access should look like right away. You want to make sure you have a roadmap that is in writing and signed by a court so there is enforceability to it. Then you don’t have to worry.
What if your child is in danger? Is it still parental kidnapping?
Texas Penal Code §25.03 does allow for some defenses from prosecution, and protecting a child from family violence is one of the defenses that may be considered. However, withholding visitation from the other parent can get you into legal trouble, so it’s important to speak with your child custody lawyer about appropriate next steps.
If your child truly is in immediate danger, you should contact law enforcement and get Child Protective Services involved so they can open a case on your child’s behalf. Your attorney can help you get an emergency protective order put in place, then take steps to legally restrict the other parent’s access to your child.
Keep in mind, the burden will be on you to prove the other parent is a danger to your child. You will need to provide clear and convincing evidence that family violence has either occurred or is likely to occur in the future if the other parent has access to the child.
If your child’s other parent has fled with the child, act promptly
There’s another side of the complex coin of parental kidnapping—or at a minimum, denying access—I would also like to address here. I have seen cases where a parent deliberately takes their child out of state, knowing full well they are violating their custody orders but the other parent doesn’t do anything about it right away, and the next thing you know, months have gone by.
Oftentimes, the parent resists fighting back because they want to reconcile with their ex, so they don’t want to rock the boat. Sometimes those months can extend into years, and if you wait, the court is going to wonder why you didn’t file for an enforcement and take steps to get your child back. The longer you wait, the more difficult it’s going to be to regain access to your child, so contact an attorney as soon as possible to find out what legal options and civil remedies are available to you.
Have questions about child custody in Texas?
Our Fort Worth child custody lawyers are here to help. To schedule a confidential case review with an attorney at the Sisemore Law Firm, contact our office at (817) 336-4444 or by connecting with us online.
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