How can a parent be charged with kidnapping their own child? The answer: easily. Out of 260,000 kidnapping cases each year, 200,000 of those cases involve members of the child’s own family. Often, the kidnapping charge is the result of an ongoing custody or divorce battle, and many times the person charged had no ill will or malice in their actions. Nonetheless, kidnapping is a federal offense and a state offense, and a conviction could lead to drastic personal and financial consequences. There are severe criminal consequences of a parental kidnapping charge.
What is ‘Parental Kidnapping’?
Under Massachusetts General Law, kidnapping is defined as the forcible or secret confinement of a person against his or her will. ‘Parental kidnapping’ is the retention or removal of a child from their parent/guardian by a parent who does not have lawful custody. This means a parent who has legal custody of the child at the time cannot be charged with kidnapping. However, if one parent has sole custody and the other parent takes the child for longer than their scheduled visitation period, a kidnapping charge can be made.
What Are the Legal Consequences of a Kidnapping Charge?
A defendant convicted of kidnapping in Massachusetts will face a $1,000 fine and up to ten years in state prison. The prison sentence can reach 15 years if the child was under 16 years of age. Other penalties include hefty court fees, probation, and a mark on your permanent record. The conviction will follow you for the rest of your life, marring your professional reputation, limiting your opportunities to travel abroad, your constitutional right to bear arms, and possibly your custodial and parental rights. The charges and penalties escalate if the ‘kidnapping’ occurs across state lines.
What are the Possible Defenses to ‘Parental Kidnapping’?
In Massachusetts, most ‘parental kidnapping’ cases center around divorced couples with children. It is not uncommon for a spiteful former spouse to make a false kidnapping claim during the defendant’s regularly scheduled visitation period. The good news is that this is the most sound defense against a kidnapping charge. If you were acting in compliance with the custody agreement, a skilled attorney can find the necessary documentation to absolve you of all charges.
Other times, a non-custody parent who suspects their child is in danger of physical or verbal abuse may remove the child from the situation. In this case, the court will usually waive the charges if the defendant can demonstrate that they were acting in the child’s best interest and removing them from a dangerous situation. Again, an experienced defense attorney is needed to gather the relevant evidence and testimony needed to support this claim.
Another defense is a failure to return a child due to circumstances beyond the defendant’s control. For example, if severe traffic or inclement weather prevented the parent from returning the child in time, the defendant can repudiate the charges. Other factors such as a car accident, cancelled flight, or sudden illness or injury could qualify. Of course, only an experienced attorney can help you determine whether the circumstances of your case merit this defense.
‘Parental kidnapping’ is taken very seriously by both federal and local courts. Prosecutors will seek to charge a defendant to the fullest extent the law allows. The circumstances of every case are different, and your case deserves careful attention and investigation. Act fast and contact an experienced attorney. I can evaluate your case and determine the best course of legal action.
Sources
What is parental kidnapping? Read more at: http://criminal-law.freeadvice.com/criminal-law/violent_crimes/what-is-parental-kidnapping.htm
Massachusetts law, Chapter M.G.L. 265, Section 26A (“Kidnapping of minor or incompetent by relative”). Read more at: https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter265/Section26A