Approximately 800,000 children annually are reported missing, according to U.S. Department of Justice statistics. That’s a staggering 2,000 minors daily on average. The National Center for Missing and Exploited Children (“NCMEC”) claims that family members account for 203,000. That’s more than a quarter of these child abductions. According to the National Incidence Studies of Missing, Abducted, Runaway and Thrownaway Children (“NISMART”), parental kidnapping accounts for 78 percent; for these, the offender is the noncustodial parent.

Why does parental kidnapping occur?

There are some common reasons cited by parents for violating the custody or visitation rights of their mates by abducting their children. These include to punish the non-offending parent or to compel reconciliation with the estranged parent. Fear of losing custody or visitation rights may be another reason. In rare instances, shielding the minor from an alleged neglectful or physically or sexually abusive parent may even be the reason underlying parental kidnapping.

Fines and prison terms:

Under Massachusetts law, a minor’s relative who takes a child from his or her custodian without lawful authority and intends to hold the youth “permanently or for a protracted period,” is subject to a maximum one year in prison, a thousand-dollar fine, or both. Unlawfully removing the child from the Commonwealth and exposing the minor to danger is punishable by up to a $5,000 fine and a maximum five-year prison term.

Often, an accused parental kidnapper also faces a charge of violating a restraining order. Violation of such an order could result in a maximum $5000 fine and up to 2.5 years in prison.

Custody Orders:

Criminal liability against a parent as outlined above pre-supposes an existing court-issued custody order concerning the parents’ children. In a 1989 case, a woman took her five and three-year-old sons from their Massachusetts home. She relocated to Puerto Rico ten days before her estranged husband obtained a temporary custody order, unbeknownst to her.

The mother was arrested for parental kidnapping. The Supreme Judicial Court acknowledged the presumption under Massachusetts law that both parents have equal custodial rights of their children. The Court concluded that a parent who takes his or her children from the other parent before any court proceeding has generated a custody order is not acting “without lawful authority” as defined by the Commonwealth’s statute. Thus, there can be no conviction of parental kidnapping.

Federal Parental Kidnapping Prevention Act:

At the national level, the Federal Parental Kidnapping Prevention Act requires every state’s appropriate authorities to enforce and not modify (with certain exceptions) any child custody determination made by another state’s court. What does this full faith and credit provision mean? Let’s say another state has jurisdiction over a child custody question with pending custody proceedings outside the Commonwealth. In that case, a Massachusetts judge cannot issue a custody order in a non-emergency care and protection hearing involving the same minor without running afoul of the federal Act. The federal statute prevents two states from concurrently assuming jurisdiction over the same custody matter. It considers the resident state of the child or either parent to be the proper forum to resolve the dispute.

False kidnapping claims:

Unfortunately, sometimes—especially in particularly contentious divorce proceedings—family lawyers confront false kidnapping claims. A vengeful custodial parent might bring such a claim against a defendant parent; for example, during the latter’s designated visitation period, the parent may have returned the child late to the custodial parent. In such instances, experienced divorce counsel can refute spurious accusations. Counsel can offer proof that unforeseen circumstances caused the visitation to exceed the allotted time. Circumstances could include traffic congestion, a delayed or cancelled flight, or unexpected injury or illness.

Sometimes, noncustodial parents are fearful that their children are targets of physical or mental abuse by the custodial parent; in that case they may not return the child after a scheduled visit. When such unilateral action is taken, experienced divorce attorneys will seek relief from the probate court by arguing that the noncustodial parent was acting in the best interest of the child by protecting the youth from an unsafe home environment.

Considerations:

Under Massachusetts law, either spouse in a pending divorce action may petition the Probate and Family Court to issue an order to prohibit the other spouse from imposing any restraint on the personal liberty of the petitioner or his or her minor children during the pendency of the divorce proceedings. Likewise, by statute, if the Massachusetts probate court has jurisdiction over a minor, the child’s consent is a requirement to remove the minor from Massachusetts. This is only so long as the minor is of “suitable age” to give said consent, however. A court may have jurisdiction either because the child was born in the Commonwealth or has resided there for at least five years. What if the child is too young to consent? In that case, the child cannot be removed without the approval of both parents unless the Court, upon cause shown, otherwise orders.

Contact us:

Are you looking for an experienced Newburyport or Andover divorce lawyer or family law attorney? If you have any questions about child custody or support or any other issues regarding family law, please contact our firm. You may schedule a free consultation with an experienced family law lawyer today. Call our offices at 978-225-9030 during business hours or complete a contact form online.