What is Parental Kidnapping?
You and your husband just had a huge fight, again. It’s the final straw. This marriage is over. Tomorrow morning you are calling your attorney and filing for divorce. Then you’ll load the kids in the car and move to California. You’ll stay with your brother until the divorce is final, find a good job, and start over.
Can you do this? More specifically, can you take the children without his permission?
Under Nevada Law, kidnapping is when you willfully seize, confine, conceal, or detain a person. Keeping the children concealed or detained and driving to California would fit this definition.
But, you are the mother. These are your kids. You aren’t concealing them. He knows where you are going. Can a mother kidnap her own child? You don’t want to be half-way to Baker only to have the police pull you over and arrest you.
Many parents face kidnapping concerns during a divorce. Especially a hot flash divorce like this scenario of packing up the kids and driving to another state.
This law can be confusing, and scary. It can be downright terrifying if you don’t realize that Nevada has a specific criminal law about kidnapping for parents who share custody of a child.
Under this specific Nevada law, NRS 200.359, parental kidnapping is willfully detaining, concealing, or removing a child from another person having “lawful custody”.“Lawful custody” is a legal right to custody of a child by court order or by operation of law. When parents’ divorce, their divorce decree or custody decree contains court orders which detail each parent’s right to custody of the child.
The decree explains who has legal custody, physical custody, and a visitation schedule. Parents only need to read their divorce decree or custody decree to know what type of custody rights they have.
What if you are not divorced, and there are no court orders about the custody of the child? Nevada law says that each parent has joint legal custody and joint physical custody of the child until a court orders something different. In other words, each parent has lawful custody of the child.
So, in this described scenario, you might be kidnapping your own child which could subject you to a conviction for a category D felony, criminal penalties, and jeopardize your right to custody in your divorce case.
Engaging in parental kidnapping can injure your case when bringing custody disputes before a court.
You don’t need to be guilty of kidnapping for the judge to view your actions as inappropriate and not in the best interest of the child. With a pending divorce or custody case, the court is going to expect you to act responsibly and to always have the best interest of the child in mind – not your interest, but the child’s interest.
Here are some standard Do’s & Don’ts while a custody case is pending:
• Before you make any plans, check any court orders to make sure you are in compliance. Document your compliance.
• If there are no custody orders, get a written agreement from the other parent before taking the child out-of-state. Text and email are sufficient.
• Try to arrange a visitation between the child and the other parent if there are no custody orders, and the trip is long term.
• Don’t move out-of-state, permanently, with the child unless there is a serious, life-threatening emergency. Be prepared to explain this emergency to the judge.
• Do not prevent the other parent from seeing the child unless there is a physical or mental danger to the child. If you do, be prepared to explain this danger to the judge.
• Don’t give the judge any reason to believe that you are trying to prevent the other parent from seeing the child.
If you do need to take the child out–of-state for some reason, then make sure you cover all your bases first. Get written permission from the other parent. Consult with your divorce lawyer to make sure you aren’t violating any court orders.
For example, if you want to take the children to visit their out-of-state grandparents, talk it over with the other parent and your divorce lawyer first. If the other parent agrees to the visit, make sure you get it in writing. A text or email is fine.
To relocate out-of-state permanently, you need the other parent’s written permission or permission from the court. When asking the court’s permission, you must prove specific things to the judge, for example, if there is a good reason for moving out-of-state, such as better job opportunities, or proximity to family.
In Nevada, a parent who kidnaps their child is guilty of a class D felony and is subject to minimum prison time and fines except in a few specific situations. In general, it is not considered “parental kidnapping” if it was done to protect the child from imminent danger of abuse or neglect or domestic violence, or to protect that parent from imminent physical harm or domestic violence.
However, these limited exceptions are tricky. If it’s possible (and safe for you to do so), then contact a custody and divorce lawyer to make sure you can support your reasoning to remove, conceal, or detain the child in court. Instead of just taking the child, it’s often better to file for emergency temporary custody orders. This will allow a judge to look at the situation and make appropriate orders.
If the other parent refuses to return the child, you may need to file a motion with the court immediately.
The court will hold a hearing and determine if the other parent is violating any Nevada laws, if their actions are harming the child, or if their actions are interfering with the other parent’s lawful right to custody.
The judge will make a determination and enter a temporary custody order. This order is now the go-to document for specifying who has the child when, and who can make decisions on behalf of the child.
Sometimes the kidnapping is intermittent. For example, the other parent is consistently returning the child late or dropping off the child a day later than scheduled.
This is probably not something you would rush to court over. Especially if you are still going through the divorce. This is something you might use at trial to support your primary custody argument.
Keep a log of the date, time, what should have happened, what actually happened. Save texts and emails. Give them to your divorce attorney because they may come in handy.
Child custody is a civil matter in most states, including Nevada. Usually, police will only intervene if there is an immediate danger to the child or if there is a reason to believe the other parent is removing the child from the state.
If one parent is in violation of the custody order and there is no reason to suspect danger to the child or that the other parent will leave the jurisdiction, you should file a motion to comply. If they repeatedly violate custody orders, then you should file a motion for contempt of court.
If you and your divorce lawyer have been forced to repeatedly file motions to comply, then contempt of court is the next step.
Court orders are legally binding. If one parent is purposely disobeying the court custody order, the courts take that offense seriously. The judge could, for example, decide to modify the custody order and order the other parent to pay your attorney fees. In extreme situations, the judge could order jail time. Jail time and modification of custody are more likely in cases involving parental kidnapping. Most of the time, imposing fines on the offending parent is enough to enforce good behavior.