Updated on August 23, 2022
When two parents are going through a divorce, it is only natural for both of them to make their children’s welfare and well-being a top priority (“How to Tell Your Children About Your Decision to Get a Divorce”). Sometimes, however, a parent will take the issue to extremes and will end up kidnapping his or her own children.
The law associated with parental kidnapping is exceedingly complicated, and your children’s safety and welfare are naturally your primary concern. If your children have been taken and you consider the situation to be an emergency, do not hesitate to contact the authorities.
Kidnapping shared children is a rash action that not only can affect the offending parent’s ultimate custodial rights but can also cause the parent to face criminal charges. If your divorcing spouse has taken your children or if you have been accused of doing the same, you need the professional legal guidance of an experienced Central Texas family law attorney.
In the State of Texas, you can be charged with parental kidnapping if you take your child without the right to lawful control of him or her.
Definition of Kidnapping in Texas
Kidnapping refers to taking a person against his or her will from one place to another—or of holding a person in a specific location against his or her will. The person alleged to have been kidnapped can even be your own child if the action was not within your custodial rights. In the State of Texas, kidnapping is a third-degree felony.
Kidnapping is always a serious crime, but if you are accused of crossing state lines in the course of an alleged kidnapping, then it becomes a federal case and you can be charged with a federal crime.
Interference with Child Custody
Sometimes a parent engages in activity that does not rise to the level of kidnapping but that is instead classified as interfering with the custody of a child who is not yet 18. A parent who takes or retains his or her own child under the age of 18 can be charged with interference with child custody if one of the following circumstances applies:
The parent knows that taking the child violates the court’s express orders regarding custody.
The parent knowingly removes the child from a jurisdiction in which a custody suit is pending in an attempt to thwart that court’s authority.
The parent takes the child outside the U.S. in an attempt to deprive the other parent of his or her entitlement to possession.
If interference with child custody is playing a role in your divorce, you need a skilled Central Texas family law attorney to protect your custodial rights. Contact a lawyer today to get the representation you need in your family law case.
False Accusations of Parental Kidnapping
A parent is sometimes falsely accused of kidnapping his or her own child, and often this accusation comes from the child’s other parent. If you are facing kidnapping charges, then it is important to better understand what the charge entails—and to retain an experienced criminal defense attorney as soon as you can to protect your rights.
In Texas, kidnapping is a third-degree felony that involves intentionally or knowingly abducting another person. While federal kidnapping laws are more stringent than most state's laws, parents are exempt from federal kidnapping charges related to their own children. If parental rights have been terminated, on the other hand, federal charges can apply.
Defenses against Parental Kidnapping Charges
There are several defenses that can be used against parental kidnapping charges. Contact a family law attorney to learn more about which defense will work best in your case.
The Parent’s Intent
The three components of a valid defense against parental kidnapping include the following factors:
You neither used nor threatened to use deadly force.
You are the child’s parent.
Your sole intention was to assume lawful physical control of your child.
Most cases of parental kidnapping hinge upon the lawful control component of this charge. Lawful control refers to your legal rights as a parent to have possession of your child. This right is decided by law (or by court order) and is not based upon what is considered fair, just, or right.
However, if the parent can be shown to intend to terrorize the other parent, that intention disqualifies a lawful custody intent claim. If the offending parent’s intent was to interfere, he or she can be sanctioned by the court with contempt orders and be required to pay for the other parent’s attendant legal fees in the matter. (“Who Pays Attorney's Fees in a Texas Divorce?”)
In situations in which the accused parent was entitled to possession at the time and was fleeing actual or attempted domestic violence, these charges will not apply.
Returning the Child
Returning the child to the appropriate jurisdiction within three days of the alleged offense can be a defense to prosecution on the grounds of parental kidnapping.
Lack of Control
Finally, it is also considered an affirmative defense if the accused’s actions in relation to taking the child were predicated on actions beyond his or her control and he or she gave notice—or attempted to give notice—to the other parent.
Facing Kidnapping Charges? You Need an Experienced Central Texas Attorney!
The most charged issue in any divorce involving kids is child custody arrangements, and if parental kidnapping comes into play, things have gotten out of control.
If you are facing kidnapping or interference with child custody charges, attorney Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is committed to applying his decades of experience to bringing your strongest defense. Your rights are important, and our dedicated legal team is on your side. For more information, contact us online or call us at (254) 781-4222.