When Your Child is Kidnapped to Disneyland? By the Other Parent!
Roy sent me an urgent email. His email said, Kim (his ex-wife and mother of their child) kidnapped their daughter. We handled his divorce and custody case a year ago.
I called him back immediately to get more details. 99.9% of the time when I get this type of email it’s not a kidnapping. It’s what parents say when a parent takes the child out of Nevada without telling them. But there is always the chance this could be that .1%, where a parent had kidnapped their own child.
Thankfully, this was the 99.9% variety. Kim had taken their daughter to Disneyland for the weekend without notifying Roy. Now, that I knew the situation was not a true kidnapping, I spent the 20 minutes explaining to Roy why this is NOT kidnapping.
This scenario does raise the question, which I’m asked a lot; Can a parent kidnap their own child? The answer is yes, if the kidnapping is permanent. If the kidnapping is temporary or against a court order you probably have abduction, which is slightly different.
NRS 200.310 is the law for kidnapping. The law lists two events that could be considered kidnapping. The first event is, abducting or carrying away a person with the intent to conceal for a ransom or to commit bodily hard. This is the worst offense. This where a stranger grabs a child from a playground and vanishes. Horrible to even think about.
The second event is, to confine the minor from his or her parents, guardians, or any other person having lawful custody of the minor. This specifically involves a child and could be used against a parent who keeps the child from the other parent having lawful custody.
In Roy’s situation, Kim had a custody order giving her time with the child that weekend. In other words, she had lawful custody of the child that weekend. So, it would not be kidnapping.
Would it bet kidnapping if Kim did not have custody of the child that weekend?
When parents have a custody order, there is another law custody attorneys refer to as “abduction”. NRS 200.359 is the law used when parents with a custody order “unlawfully” keeps the child from the other parent. It comes into play when a parent willfully detains, conceals or removes the child from a parent having lawful custody.
Parents with custody orders have specific days and times they have lawful custody of the child. For example, Roy has the child Monday and Tuesday and every other weekend. Kim has the child Wednesday and Friday and every other weekend. Willfully detaining or concealing the child from the other parent during their custody time is “technically” abduction. The removing doesn’t even need to be to another state.
In Roy’s situation, Kim had lawful custody of the child that weekend. So, it would not be kidnapping or abduction because she had a lawful court order. And it is NOT kidnapping or abduction because she left the state without telling Roy. Unless the court order requires her to tell Roy, she can leave the state during her custody time without notifying him.
If Kim did not have custody of the child, it would “technically” be abduction. Would Kim be prosecuted harshly? Probably not because it was a temporary abduction. The most I’ve seen family court judges do for a temporary withholding of the child is monetary sanctions and giving the other parent extra custody days to compensate them for the loss of custody time.
Now a parent, even with a custody order, who signs the child out of school and leaves the state permanently is going to be charged with kidnapping and abduction. This type of abduction is going to be treated like a felony. This is true kidnapping or abduction. This is why we have an Amber Alert system.
The facts our family court judges focus on is whether the leaving of Nevada was temporary or permanent. Permanently leaving Nevada is going to have serious consequences. Taking the child out of Nevada “temporarily”, even if it NOT your weekend, is not going to be a serious offense.
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