When parents are in the middle of a contentious child custody battle the situation can be tense. In some cases, a child custody battle can escalate to the point where one parent decides to physically take the child without the permission of the other parent or the court. If this happens, a parent can face criminal charges for parental kidnapping. If you have been accused of kidnapping your own child – whether you are in the midst of a child custody battle or not – it is important to understand the potential criminal consequences you may face. Your actions during a civil child custody battle can most certainly have criminal consequences.
Kidnapping is somewhat of a misnomer. There is no requirement that the victim of a kidnapping be (a) a child, or (b) your child. Regardless, allegations of kidnapping your own child are very serious. In most cases, if you have in fact moved your child from one location to another or concealed them from the other parent, a court will consider three primary factors when determining if you have broken the law.
First, they will consider your legal status as the child’s parent or legal guardian. Second, they will consider whether any court orders are in place which would prohibit you from moving your child. Third, they will consider your motive and intent in moving your child. These factors are all incredibly important because different criminal charges may (or may not) apply when these questions are answered.
Most states have a handful of kidnapping-related laws on the books. Why have more than one? It is easier to have a few laws that target specific behavior rather than one broad law that is used to target a variety of behaviors. In Illinois, for example, there is a law that makes it a crime to kidnap another person and there is a law that makes it a crime to abduct a child. The primary criminal act – concealing another a person without consent – appear to be very similar at first glance. However, each law specifically targets different things.
Kidnapping is the crime of knowingly and secretly using force, deceit, or enticement to secretly confine another person against his or her will. The crime of kidnapping can be aggravated if the kidnapping is done for ransom or results in bodily harm to the victim. There is no requirement that the victim of a kidnapping be a child. Rather, the act of secretly confining any other person against his or her will through force, deceit, or enticement is sufficient. Parents can be charged with kidnapping if their actions satisfy each and every element of the crime.
A parent who is charged with kidnapping will face criminal consequences for a Class 2 Felony. A conviction for kidnapping in Illinois can result in a prison sentence of no less than three years and no more than seven years. A parent who is charged with aggravated kidnapping will face criminal consequences for a Class X Felony. A conviction for aggravated kidnapping can result in a prison sentence of no less than six years and no more than 30 years. Fines of up to $25,000 may also be imposed. The specific criminal penalties will depend on the severity of the offense and if the child was harmed or placed in harm’s way.
Child abduction is similar to kidnapping. In fact, the crime of parental kidnapping is actually charged under the state’s child abduction law. Parental kidnapping is the crime of concealing or detaining a child from that child’s lawful guardian without permission. Examples of situations when child abduction can be charged include when a parent intentionally (1) conceals or detains a child from his or her other parent, (2) violates a custody order by moving the child out of the court’s jurisdiction, (3) conceals or removes a child from another parent during a marriage, paternity, or child custody proceeding, or (4) refuses or fails to return a child to his or her other parent after the right to visitation has ended.
Parental kidnapping (child abduction) is a Class 4 Felony offense in Illinois. A conviction for parental kidnapping can result in a prison sentence of no less than one year and no more than three years. Aggravating factors can result in an extension of the prison term to six years. Parents who are convicted of kidnapping and/or child abduction can also lose custody of that child.
In addition to considering your legal status as a parent and whether there are any court-issued limitations on your parental rights, a court will take your intent (or lack thereof) into account. The crime of kidnapping requires that the act be done knowingly and secretly. The crime of parental kidnapping/child abduction requires that the act be done intentionally. In many cases, you can defend your actions by arguing that your intent was for the well-being of the child and/or to remove them from an unsafe situation. Criminal charges will not be successful if can prove that you lacked the required state of mind that is legally required to commit the crime.
When you are embroiled in a hotly contested custody battle and decide to take matters into your own hands by moving or concealing your child you could face serious criminal consequences. The purpose of a child custody hearing is to determine what custodial arrangement serves the best interests of a child. Parents who are in the middle of a custody hearing should be wary of taking their children anywhere without the consent of the other parent or the court. This is especially true in Illinois if paternity has not been formally established or if a court order has been issued restricting certain parental rights. In many cases, a court will intervene and grant temporary custody to a neutral or responsible third party.
If you have been accused of kidnapping your own child during a child custody hearing it is important to seek the assistance of a qualified criminal defense attorney. The criminal consequences associated with kidnapping and child abduction are not insignificant and can seriously affect your ability to move forward with your life and be an effective parent.