Going to the beach with your children should be a great experience. Watching your kids play in the surf while you soak in the sun during the day. At night you take them to the boardwalk for some ice cream and a spin on the merry-go-round. But then the next morning you’re in handcuffs and while your children are crying in the back seat of a sheriff’s car. Where did it all go wrong?
In the criminal courts there is something known as “parental kidnapping” (the specific label for the crime or actual charge may vary from state to state). This is a situation where a parent, who may have some rights to custody of their children, goes against a court order or custody agreement by taking their kids to a place they would not usually be found and withholding custody from the other parent during their time with the child.
When you think of a parent “kidnapping” their own child, you may have visions of someone snatching a toddler from the playground and spiriting them away to some foreign nation like a made-for-television movie. But the “kidnapping” can be much more mundane. This need not be crossing state lines, but it could be simple as telling the children to hide in the basement rather than going back to dad’s house or having them stay with a family member on the other side of town.
Not everyone who wants to take their children on a vacation is a potential kidnapper; nor is every person who believes keeping their children away from the other parent is essential for safety of the children. There are right ways to address these issues, which will keep you from being branded a criminal for wanting to spend time with or protect your kids.
When parents separate, the courts generally assume that they have equal rights to their children barring an order to the contrary (such as a custody order or a termination of parental rights commonly associated with child protective services). Without such an order, either parent could go to the school and take the children out or go on a trip without the other’s knowledge or consent.
Do not make the mistake of thinking that no custody order means you can do what you want. It may feel that way in the short run, but the same is true for the other side. And if you are the parent who goes on vacation without a custody order, you are allowing your ex-partner to be the one who runs to the court for relief and setting the narrative. Your jaunt to the beach for fun will be described in an emergency petition for custody as a custody snatch with an attempt to avoid the jurisdiction of the court. A judge could swiftly issue a ne exeat order and have the police forcibly return you and the children to that state.
This is why a custody order is so very important. A well thought out and written custody agreement will address things such as vacations and travel. Each parent can feel confident in their own safety and liberty from the other party when acting in accordance with the agreement. And, if the other party violates the agreement by taking the kids away when they are not supposed to, you have the ability to tell the police you kids were taken or to go to the court and seek sanctions against the offending party. Not to mention that when you take your kids on that beach vacation in accordance with the custody order, the other parent cannot claim you kidnapped the children (instead of you being behind bars, they’ll likely be facing charges of lying to the police).
We briefly touched upon being frightened for your child’s safety and not wanting to return children to the other parent. This can broadly be addressed in the long term through a full and proper custody agreement, but when faced with an emergency you can also petition the courts for specific and immediate relief (it should be noted that many jurisdictions have automatic language included in custody orders that address the automatic forfeiture of custody time when a parent is under the influence of drugs or alcohol).
Neither custodial or criminal law is identical in every state, and sometimes may slightly differ from county to county. It is important that for specific questions and concerns, you contact an experienced attorney in your local area such as the family lawyer locals trust.