It’s a fear many parents have when sharing custody of their child with their ex — will their ex kidnap their child? Will they refuse to bring them back at the appointed time after visitation? Will they take the child out of state? Parental kidnapping is a serious issue that is important to understand when you and your spouse divorce and you will be sharing custody of your child in some capacity. Here’s what you need to know and what your legal options are if your child is taken by your ex.

What Is Parental Kidnapping?

Kidnapping, by its most basic definition, is the unlawful act of taking a person without their consent, usually by fraud or force. Parental kidnapping is a little different, however, two critical components remain the same — it’s unlawful, and it’s without consent. In this case, the consent of the custodial parent is what is being violated, since children cannot legally provide consent themselves.

The most common example of parental kidnapping is when the non-custodial parent does not return the child after visitation. They may use the child as leverage to threaten the custodial parent. Another common example would be the custodial parent refusing to provide the child for visitation when the non-custodial parent has visitation rights.

Proving Parental Kidnapping

If your ex has taken your child and you believe it to be a situation of parental kidnapping, you need to be able to prove the following:

• Your child was under the age of 18 at the time they were taken
• Your ex did not have the right to custody at the time the child was taken
• Your ex willfully and maliciously took and kept your child away from their primary custodian

If any of these elements do not exist, it’s possible — and arguably probable — that the charges would be dismissed. For example, parental kidnapping cannot occur if the child is 18+ years old. If they are kidnapped and even if it is their parent that does so, it would be a case of criminal kidnapping under New York law. If your ex had rights to the child, such as if it was legally their time for visitation, they cannot be charged with kidnapping. Willful intent must also exist.

Can Parental Kidnapping Be an Accident?

In some cases, an individual may be charged but not all elements are in place to prove the crime exists. For example, your ex may not have meant to take the child. They may have forgotten the arranged drop-off time. Or, you may not intend to kidnap your child by taking them out of state, but your ex (presuming they have legal rights to the child) files a motion against you for kidnapping because you did not make them aware nor did they agree for their child to be taken out of state. Many charges of parental kidnapping end up being accidental simply because the parent wasn’t aware of the laws governing the situation.

Contact Our Long Island Divorce & Family Law Firm for Help With Your Parental Kidnapping Case

See this page to learn everything you need to know about Child Custody and Visitation on Long Island.

If your child was taken by your ex and you believe it to be a case of parental kidnapping, you do have legal options available to you. It’s critical to consult with a divorce and family law attorney attorney to learn more about your rights and what your next best move is. Once the child is back in your care, you’ll also need to take legal steps to keep it from happening again. We can help — contact our experienced Long Island divorce lawyers and family law attorneys today for a free consultation by calling 631-923-1910.