What is Parental Kidnapping?
There are many rumors out there about parental kidnapping, particularly from people who are not happy with their spouse or the co-parent of their children. But what does parental kidnapping actually mean, and when is it okay to call the cops on the other parent?
Michigan’s parental kidnapping law, codified in MCL 750.350a(1), essentially states that a parent of a child cannot take the child for more than 24 hours in an effort to hold or keep them from a parent who has custody or parenting time rights under a legal order. In other words, parental kidnapping is when one parent purposefully takes or withholds the child from the other parent who has custody or parenting time rights by a court order.
The offending parent must have the intent to “detain or conceal” the child from the other. This is the part of the equation that is missing in a lot of cases – in many circumstances, it would be impossible to prove this.
By way of example, suppose Dad has sole physical custody of the children, and Mom’s overnights are temporarily suspended by Dad due to her having an unstable living situation. Mom and Dad agree to meet at the park so that Mom can have some time with the kids under Dad’s supervision. Mom appears anxious, keeps looking at the road, and doesn’t seem to be fully engaged with the children. Dad observes Mom whispering in the ears of the children but cannot hear what she says. Then, Mom’s friends pull up in a van. Mom and the children take off running toward the van before Dad can figure out what is happening. There is a struggle between Dad and the friends, and the van gets away. Dad calls the police and files a report. Mom and the children are finally located by the police at a friend’s house less than 24 hours later.
Parental kidnapping is a felony punishable by imprisonment for not more than one year and one day, or a fine of not more than $2,000, or both. In the above example, Mom can be charged with parental kidnapping because she clearly took the children without permission during Dad’s parenting time with the intent of detaining or concealing them from Dad. The fact that Mom had the children for less than 24 hours does not matter because the act of taking them was enough to satisfy the second line of the aforementioned paraphrased statute.
Dad, in this example, is less likely to be charged with parental kidnapping for temporarily suspending Mom’s overnights due to her unstable living situation. This is because MCL 750.350a(7) also provides for a defense if the parent shows that their actions were for the purpose of protecting the child from an immediate or actual threat of harm.
Dad can argue that sending the children for overnights with Mom puts them in an immediate and actual threat of neglect due to Mom’s housing instability. That said, Dad should immediately file an emergency motion to suspend Mom’s parenting time, or he could get in trouble for violating the court order. We never advise our clients to willfully violate a court order – filing a motion at least at the same time is critical.
Call an attorney right away if the other parent has suspended your parenting time or withheld your children. Courts make determinations on a case-by-case basis only after analyzing the individual facts and circumstances of each case. It is important to not let this go on when you know the other parent’s intent. We always advise our clients to follow court orders unless they feel their children are truly in harm’s way…and in that circumstance, it is critical to file the right paperwork with the court.
Here is another example. Suppose Mom and Dad have joint physical custody with equal parenting time. Mom is supposed to return the children to Dad’s house on Sunday at 6 p.m., but she is late for the exchange due to a sudden snowstorm. Mom texts Dad saying it is too dangerous to drive so she is keeping the kids overnight. Unbeknownst to Mom, the text doesn’t go through because of poor cell phone coverage caused by the storm. Dad cannot reach Mom via text message, cell phone, or email, but knows the kids are probably safe. Dad is angry, however, that Mom is habitually late in dropping off the kids on Sunday, so he calls the police the next day to teach her a lesson. Mom and the children are finally located by the police at Mom’s house about 24 hours after the exchange was originally scheduled to take place.
Mom is unlikely to be charged with parental kidnapping in this scenario. Even though she technically retained the children for more than 24 hours without notifying Dad, Mom did not do it with the purpose of concealing or detaining them. In other words, she did not have the “requisite intent” necessary for the crime.
Dad acted poorly in this scenario by reporting a parental kidnapping despite knowing better. The only thing Dad actually accomplished in filing a false claim was stirring up bad blood between the parties and making himself look bad in family court should the incident come to the Judge’s attention.
Keep a record of all false claims filed claims against you by the other side, such as police reports and investigations by Child Protective Services. If applicable, you may be able to use these documents to help you in your battle for better custody and parenting time. As experienced lawyers, this requires strategy that we can help you determine. If the allegations are truly outrageous, the Judge may even give you an award of attorney’s fees.
In summary, parental kidnapping is a serious accusation punishable by felony charges. You should never violate a current court order regarding custody and parenting time unless you truly believe there is an imminent and actual threat to the safety and wellbeing of your children. If this is the case, your next step is to contact the Bloomfield Family Law Firm for legal advice and assistance.
