Parental kidnapping is an oft-talked about, frequently misunderstood topic in cases which involve child custody.
The basic idea is that a parent can be charged criminally for the kidnapping of their biological child once a custody order has been entered by a court.
First, it is important to remember that both parents have an equal right to the physical custody of the child (if they are married) until such time as a court enters an order directing otherwise.
What this means is that if a court has yet to enter an order regarding the custody of the child, one parent may withhold the child from the other parent without fear of reprisals.
It should be noted that if one parent decides to withhold a child, the court may view this as being contrary to the best interest of the child when making a determination regarding the custody of the child. Once an order regarding the custody of a child is entered, even a temporary order, the laws regarding kidnapping become operative.
For example, pursuant to Virginia Code Section 18.2-47, any person who, by force, intimidation or deception, and without legal justification or excuse, seizes, takes, transports, detains or secretes another person with the intent to deprive such other person of his personal liberty or to withhold or conceal him from any person, authority or institution lawfully entitled to his charge, shall be deemed guilty of “abduction.”
Virginia uses “kidnapping” and “abduction” interchangeably.
If a parent withholds a child in violation of the court’s order, that parent can be found guilty of parental kidnapping. In Virginia, parental kidnapping is punishable as a Class 1 Misdemeanor which can be a fine of up to $2,500 and a jail sentence of up to one year.
If, however, the parent removes the child from Virginia, the crime will be punishable as a class 6 felony which is a fine up to $2,500 and a jail sentence between one and five years.
In addition to the punishment for parental kidnapping, the withholding parent may also face contempt proceedings for violating an order of the court. Punishment for contempt can range from a fine to jail time.
Before a child custody order is entered, one parent can completely block the other parent’s access to the child. This includes blocking any visitation and phone calls, blocking any knowledge of the child’s whereabouts and the parent with the child can even move out of state without letting the other parent know.
That is why it is so important to move quickly to get a temporary order once separation between parents is inevitable.