Parental Kidnapping and the Age of the Child

What is the age of the child for parental kidnapping?

The term kidnapping is often associated with a stranger taking a person away from his or her loved ones, but often, kidnapping occurs within families. Parental kidnapping occurs when a parent takes a child without permission from the child’s other parent.

Are Kidnapping Laws the Same as Parental Kidnapping Laws?

Parental kidnapping and custody laws vary from state to state, but for the most part, they are different than laws governing stranger kidnapping.

Lawmakers at the state and federal levels have tried to clarify issues related to kidnapping and custody through updates to existing of laws, such as the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) and the Parental Kidnapping Prevention Act (PKPA). The goal of these laws was to create uniformity among jurisdictions concerning issues related to custody and crossing state lines without permission.

In New York, specific actions were also taken to address international child abduction and what can be done to retrieve a child who has been taken out of the United States.

First-degree kidnapping in the state is defined as the abduction of a child for more than 12 hours with the intent to injure the child, commit a felony, terrorize the child or another person, or to interfere with a government or political function – factors that are very rarely the case in parental kidnappings. This Class A felony carries with it a sentence of at least 20 years.

Second-degree kidnapping in New York occurs when a person abducts another person but there are no aggravating circumstances. For instance, there is no intention to hurt the kidnapped person or to seek ransom for the person’s return. This is a Class B felony and carries with it a sentence of one to eight years. The majority of parental kidnappings would fall into this category.

The goal of the various updates and clarifications of custody and kidnapping laws were intended to discourage parents from relocating children without the consent of the other parent, but issues related to custody and parental kidnapping can still be confusing. In many cases, even with laws, it can be difficult to act when your child’s other parent takes your child.

Parental Kidnapping Statute of Limitations

Kidnapping is viewed as an extremely serious crime and as such, there is no statute of limitations. This means victims or their guardians can file charges at any time following the crime in a “traditional” kidnapping case.

This is not the case when it comes to parental kidnapping.

First, it’s important to consider whether a state considers a situation to be parental kidnapping.

In order to be classified as a parental kidnapping, three factors are usually considered:

• Legal status of the parent accused of kidnapping
• Existence of any court orders regarding custody
• Intent of the parent accused of kidnapping

In order for there to be a case of parental kidnapping, a parent must be subject to a court order regarding his or her access to the child. Otherwise, both parents have equal access to the child.

This means that even if you and your child’s other parent do not agree on time spent with your child or what can be done with the child regarding travel, both parents have equal say. Without a court order saying otherwise, your child’s other parent could take your child on a trip without your permission, no matter how upsetting or frightening it might be.

Can older children be “kidnapped”?

In some states, when the court considered a child old enough to make a competent decision about whether or not to spend time with a parent, kidnapping charges cannot be levied.

For instance, if your 16-year-old child agrees to go with his or her other parent, you won’t be able to file kidnapping charges. On the other hand, if your three-year-old child were to agree to go with his or her other parent and it violated a court order, parental kidnapping charges could be filed.

Is it possible to prosecute someone for parental kidnapping after a child has reached 18 years of age?

It might be possible to prosecute someone for kidnapping if the child is over 18, but only if the child did not want to go with his or her parent. It might also be possible if your child has special needs and the court has determined he or she is not capable of making decisions for themselves even though they are of legal age to do so.

The best thing to do if you believe your child has been taken against his or her will or that your child’s other parent has violated a court order is to contact an attorney familiar with custody laws in your state. For more information or to speak to someone about parental abduction, contact Gourvitz & Gourvitz, LLC at (973) 467-3200 or (212) 586-1700.