Regardless of custody disputes or impassioned disagreements, when one parent forcibly takes and conceals a child from the other parent in violation of their parental rights, it is tantamount to kidnapping. Every state has laws that make it a crime for a parent to kidnap their child to keep them from another parent.
But when the parent takes the child out of the country in the process, it becomes a federal offense under Title 18 U.S. Code § 1204—a crime called international parental kidnapping, punishable by up to three years in the Federal Bureau of Prisons.
Most kidnapping cases are prosecuted under state laws, such as California Penal Code 278 PC, which defines the crime of “child abduction” as when somebody with no right of custody takes a child away and keeps them from the parents or legal guardians.
However, there are some situations where kidnapping incidents can be charged under federal laws. 18 U.S.C. § 1201 defines kidnapping as “anyone who unlawfully seizes, confines, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof.”
18 U.S. Code Chapter 55 contains federal laws on kidnapping, including 18 U.S.C. § 1204 International parental kidnapping. Federal laws make child abduction a crime when a defendant has fled the state jurisdiction where the child typically lives with their lawful guardians.
The Hague Convention provides a legal civil avenue for the return of children to the United States. The International Child Abduction Remedies Act, 22 U.S.C. § 900, permits people to file Hague Convention cases in United States District Courts.
Our Los Angeles criminal defense attorneys will review the relevant federal kidnapping laws below.
What Is International Parental Kidnapping?
International parental kidnapping means that one parent takes their child out of the United States without the other parent's knowledge or approval with the intent to obstruct the lawful exercise of the other parent's authority.
In most cases, this occurs during a custody battle, especially when the offending parent fears losing custody or wants to keep the child from the other parent.
For example, if a father loses custodial rights of his child during a divorce dispute and secretly flees the country with his child to keep the mother from taking custody, the father has committed international parental kidnapping.
Family court proceedings frequently result in custody orders in which parents split custody over a child. This means the parents exchange the child on specific days for a certain amount of time until they must exchange the child again.
When one parent decides to withhold the child or conceal their whereabouts that violate the other parent's custodial rights, a potential violation of 18 U.S.C. § 1204 may have occurred.
This separate federal statute specifically deals with international parental kidnapping. Simply put, it's illegal to remove or attempt to remove a child from the United States.
Further, it's also illegal to detain a child outside the United States with the intent of obstructing the lawful exercise of parental rights.
What are the Exceptions to International Parental Kidnapping?
Child custody disputes are a complicated business, and sometimes a parent will exit the country with a child over extenuating circumstances rather than purposefully usurp the other parent's authority.
To that end, 18 U.S.C. 1204 lists several circumstances under which a defendant may claim exemption from guilt under the international parental kidnapping law. These exemptions include:
- The offending parent had received custody/visitation rights via a court order under the Uniform Child Custody Jurisdiction Act, and the order was in effect at the time they departed the country;
- The offending parent fled the country with the child to escape a domestic violence situation;
- The offending parent had physical custody of the child via a court order but failed to return the child due to circumstances beyond their control and made a reasonable effort to contact the other parent.
What Is the Hague Convention on the Civil Aspects of Parental Child Abduction?
Even if a parent is convicted of international parental kidnapping, the law has no mechanism in place to enforce the return of the child to the U.S. and the other parent.
The Hague Convention on the Civil Aspects of International Parental Child Abduction is an international agreement that seeks to protect children from child abduction and return them promptly if they are wrongfully removed from their home country.
The Hague Convention enables a parent who has legal custody of a child taken from them to file a civil petition with a participating nation to have their child returned to them.
The convention also requires that a custody action be taken at the home country's court and ensures that international abductions are handled by courts in the child's home country.
If the offending parent takes the child to a country that doesn't participate in the Hague Convention, having the child returned can be much more difficult, even with a conviction of international parental kidnapping.
Is Parental Kidnapping within the States a Federal Crime?
The federal law against kidnapping (18 U.S.C. 1201) does not explicitly cover parents who take away their children against the wishes or rights of the other parent.
However, parental kidnapping is a crime in every state, so incidents of parental kidnapping within the U.S. are generally prosecuted by the child's home state in which the abduction occurred.
To address the issue of parents who kidnap their children across state lines in an attempt to gain a custody advantage in another state, all 50 states have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
In tandem with the Parental Kidnapping Prevention Act, this law gives preferential jurisdiction for child custody disputes to the child's home state (i.e., where they have lived for the past six months).
The UCCJEA makes it more difficult for parents to manipulate the court systems across state lines and makes it easier for states to prosecute incidents of parental kidnapping. Federal law also has criminal statutes that target interstate child abduction.
For instance, the Fugitive Felon Act, 18 U.S.C. § 1073, gives state and federal prosecutors authority to obtain federal arrest warrants for anyone who committed child abduction in their jurisdiction and then flee across state lines.
What are the Common Defenses for Parental Kidnapping?
When a defendant is accused of international parental kidnapping, federal prosecutors must prove the following elements of the crime:
- they crossed an international border,
- with the intent to wrongfully retain the child, and
- keep them away from their other parent,
- denying them their custodial rights in the process.
Thus, the most commonly used defenses against this charge seek to disprove that the defendant intended to deny the other parent their lawful rights.
Defendants may also claim one of the exemptions listed above. For example, they were fleeing domestic violence or were unable to return the child to the country in the required time frame due to uncontrollable circumstances.
We might also be able to make an argument you lacked malicious intent. Perhaps there was a misunderstanding over the custody terms, and while you may have violated the custody arrangement, it was not a deliberate act.
We might negotiate with the federal prosecutor for a favorable outcome or plea bargain.
Eisner Gorin LLP is based in Los Angeles County and represents people against federal crimes throughout the United States.
You can reach us for an initial consultation by calling (310) 328-3776 or filling out our contact form.