Criminal Interference with Child Custody

A parent who takes a child and fails to return him or her may be charged with a crime. There are state and federal laws that make it a crime to unlawfully retain, obtain, or conceal a child where someone else has lawful custody under an existing court order or where custody proceedings are pending.

State Law

Each state has laws that make it a crime to fail to return a child at the time stated in a court order or to assist the person who fails to return the child. The laws also make it a crime to conceal the child from the person who has legal custody. Valid defenses include that the child was voluntarily returned within a given number of days or hours, usually 48 hours, or that it was necessary to protect the child from physical or sexual assault. Another valid defense is that the person who retained the child had a reasonable belief that he or she had consent from the person with lawful custody to retain the child. Criminal charges are rarely brought for minor infractions of a custody agreement or order.

Federal Laws

The Parental Kidnapping Prevention Act is a federal law that makes it a federal crime to take a child across state lines and then fail to return the child to the person who has lawful custody. The law requires each state court to give full faith and credit to an existing court order of custody and that the court which issued the custody order retains jurisdiction over the custody of the child. The Act makes the federal Fugitive Felon Act applicable to interstate child abductions. The Uniform Child Custody Jurisdiction and Enforcement Act allows a person with a lawful custody order to register that order in another state and get a warrant for the arrest of the person who failed to return the child. When a person takes a child and flees the country, the person may be charged with a crime under the International Parental Kidnapping Crime Act.

The first step in any action is to try and obtain a warrant to obtain custody of the person and the child. This is done by reporting the missing child to the local police. Where it is believed that the child has been taken across state lines or out of the United States, the local police will notify the Federal Bureau of Investigation, who may decide to obtain a federal Unlawful Flight to Avoid Prosecution warrant under the Federal Fugitive Felon Act. The local police and FBI may also assist a parent where the child has been brought into the United States unlawfully.

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Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.