What Constitutes Parental Kidnapping?
Even though many states do not have a penal code entitled �Parental Kidnapping,� most have structured their general kidnapping laws to provide for the same type of offense. Whether or not the taking of a child by a parent will constitute parental kidnapping is determined by three main factors, including (1) the legal status of the offending parent, (2) the existence of any court orders regarding custody, and (3) the intent of the offending parent.

Until an order is entered which limits one parent's rights or access to child, both parents have equal rights and access to a child. If a divorce or child custody suit has not been filed, then either parent can take their child and exercise custody over them. If one parent decides to take a child out of school early for an extended weekend trip, they can because there is no order limiting their right to do so. This may be annoying to the other parent, but it is not parental kidnapping. The important caveat, though, is that the person taking the child must actually be the parent of the child.

When it comes to parental rights, it is not enough that someone has functioned as the parent. For example, if a man lives with a woman and her child for eight years and as far as the child knows and believes, the man is his father, the function of parenthood will not grant the man the same rights as a biological parent. If he wants the same access and status as a parent, he must petition a family court and obtain those rights. A parent with legal custody of their child pursuant to a court order cannot usually be charged with parental kidnapping. However, a parent who violates a custody order and then snatches or conceals a child can potentially be charged with parental kidnapping.

Parental Kidnapping Laws by State
Parental kidnapping laws vary by state, but generally involve a defendant abducting a person/child by holding them in a place where they are not likely to be found. Some parents are surprised to learn that their state does not require the use of force or a weapon to support the criminal charge of parental kidnapping. The unlawful retention of the child is enough to support a charge of parental kidnapping.

Many state parental kidnapping laws are general kidnapping rules, but some will more specifically tailor their kidnapping laws to address parental kidnapping. Michigan kidnapping laws, for example, provide that a parent cannot keep a child more than 24 hours with the intent to conceal them. If your state does not have a more �tailored� statute, it will most likely include exceptions or affirmative defensives for those situations where a defendant �kidnaps� their own child. Even though Michigan prohibits a parent from keeping a child for longer than 24 hours, it does include a defense for the parent attempting to protect their child from an actual threat.

Texas has a similar requirement that the parent�s sole intent was to assume lawful control of the child. The focus of this �lawful custody� defense is on the offending parent�s intent. If a parent kidnaps their child to punish or terrorize their ex-spouse and to also try to get lawful custody, the terrorizing intent will disqualify the parent from successfully proving their lawful custody defense.

Lawful Custody Defense and Parental Kidnapping
The �lawful custody� defense is frequently used to defeat parental kidnapping charges. However, keep in mind that this defense may not work on other charges or sanctions. If a custody order was in place, the offending parent could be charged with a lesser charge called �interference with child custody.� If the family law court has concerns that you were snatching, but not kidnapping, the family law court could also sanction you with contempt orders and require you to pay the other parent�s attorney fees incurred in getting the child back.

Getting Help
Custody battles are frustrating. They are especially difficult for parents who try to do the right thing, and extremely distressing for the children who get pulled in different directions. Before you resort to a game of tug-of-war, consult with a family and criminal law attorney to make sure that you are not tugging your way into a parental kidnapping charge.

yes, we are filed, and a standing order was filed. Not until the hearing date for the standing order can we get the order to bring the kids back which is > 3 weeks away. I'll be looking for any angle to get them back sooner.

typicalman, are you listening to the Marriage Builders Radio show, daily? Have you listened today?

Is this marriage over or can I get my wife back? I love her so much and it's hard for me to know she is going through this. I have not heard from them for days now and there doesn't seem much I can do.

My wife saw an attorney,

I am doing everything my attorney has advised to get my children (and hopefully my wife too) returned safely.

I will try to give the best responses that I can. Trust me... I am concerned for my kids and I love them. I am concerned for my wife and I love her. I care for my wife deeply and I want her to get through this and I'd love nothing more than to give her a big hug right now and hear her voice. Make no mistake, I have a VERY level head. I have concern, but not panic. I fully expected her to be upset, but I underestimated her carelessness with our children. Under no circumstances did I think she would drag them into this in this way.. I am shocked by that. Everything suggested here I have done except go to the police. No one locally has indicated that would do any good and from a legal standpoint it seems that she has lots of liberty here until the court has taken action. Unfortunately, it sounds like that is going to take a while. My little boy got pulled out of school, so I will be taking every possible angle to get him back in class. I want what is best for my wife but I understand that her decisions are going to be hers to live with. I am also starting to take steps to make sure that when they return, my wife will have a safe loving support network so returning to her family or the other man will not be needed. I have all the contact information for her family however, they are useless. Her family supports her affair or are simply in denial because a physical part cannot be proven. They are extremely resentful of me for moving my wife far away and giving her a good life. It seems that they have most likely been part of her escape plan. I can't judge if they are good or bad people since they could be simply gaslighted by my wife just as I have been. I know that the marriages in her family certainly don't follow the MD principles in any shape or form, so they also don't seem to understand what a healthy marriage is supposed to entail

Notice how much little info is posted when the unimportant filler was removed. When being evasive with us limits our ability to advise as well as lower the quality of the advice that gets offered.

no.. she will not. It is clear that she is going to be near her family & the OM. I would expect that given the exposure, she will not be contacting the OM though... I would not if I were her... otherwise her support network will fall apart given that she has denied everything. It's probably about 3 days worth of driving to get there. My first worry is about their emotional state... the kids must be so confused. If my wife is not thinking soundly (which is obvious), that could lead to physical danger. She can be reckless behind the wheel when she is emotional. I have always been there to protect her when she gets like this...

I think the exposure probably did it's job or will do it's job on killing the relationship with the OM... I am just worried that she is so mad now that she will never come back and work on our marriage... which is all I ever wanted.

no.. she will not. It is clear that she is going to be near her family & the OM. I would expect that given the exposure, she will not be contacting the OM though... I would not if I were her... otherwise her support network will fall apart given that she has denied everything. It's probably about 3 days worth of driving to get there. My first worry is about their emotional state... the kids must be so confused. If my wife is not thinking soundly (which is obvious), that could lead to physical danger. She can be reckless behind the wheel when she is emotional. I have always been there to protect her when she gets like this...

Based only on Your description of her emotional and mental instability, I would DEMAND that the attorney I hired, who is working FOR ME, file an immediate emergency motion to track down and return MY Children.

no.. she will not. It is clear that she is going to be near her family & the OM.

.. I would not if I were her...