Your children have two parents, and if you and your spouse are divorcing or are divorced, you likely share parental responsibilities between the two of you. The fact is, however, that parents going through divorce sometimes exercise extremely bad judgement and kidnap their own children. Such behavior is likely to affect not only the parent’s ultimate custody arrangements but can also lead to criminal charges. If your children have been kidnapped by their other parent – or if you have been so charged – you need an experienced Houston family law attorney.
Texas Kidnapping Law
Kidnapping is the intentional or knowing abduction of another person, and in Texas it is a third degree felony. A defense to a charge of kidnapping one’s own children typically must involve three distinct elements:
- The parent did not threaten to use deadly force in enacting the kidnapping.
- The parent is indeed the children’s parent.
- The parent’s sole intent was to assume the children’s lawful physical control.
Lawful physical control in the third element refers to the parent’s right to assume possession of the children under pertinent state law, which is typically the Texas Family Code. A parent’s belief that assuming possession of his or her children is in their best interest is not reason enough. A parent’s beliefs about what’s best for the children don’t factor in; only the parent’s rights as determined by either law or by a court order pertain.
Federal Kidnapping Laws
Federal kidnapping laws are even more harsh than state laws, but the Federal Kidnapping statute exempts parents – specifically – from federal charges of kidnapping their own children. If, on the other hand, the offending person is a biological parent whose parental rights have been terminated, he or she is not exempt from federal law, and he or she can be so charged.
Along with its state kidnapping laws, Texas has a specific law that addresses parental abductions, and it outlines what it means to commit the offence of interfering with custody of a child who is not yet 18 (a lesser offense than kidnapping):
- When the parent knows that by taking the children he or she is violating the court’s order disposing of the children’s custody or is violating the court’s express judgement
- When the court hasn’t provided the parent with custody of the children, when the parent knows that a case involving the children’s custody has been filed, and when the parent removes the children from the district (if the court is a district court) or from the county (if the court is a county court) without having the permission of the court and with the intention of depriving the court of authority over the children
There are, however, several prosecutorial defenses that may apply:
- When the person returns the children to the rightful geographic area (either district or county) within three days of committing the offense
- If the person taking the children had a valid order providing for possession of or access to the children
- If the person’s retention of the children was caused by circumstances beyond his or her control and the parent either provided or attempted to provide notice to the other parent (who is also entitled to possession or access to the children)
- If the parent taking the children was entitled to possession or access to the children and was fleeing family violence (actual or attempted) against either the children or himself or herself
It is important to note that interfering with child custody is a state jail felony that can lead to serving between 180 days and two years in state jail and to fines of up to $10,000. A parent’s mere belief that he or she has the right to take his or her children does not make it so. The difference between kidnapping and interfering with child custody is summed up as the difference between kidnapping and what we might call snatching.
Lawful Custody Intent
The law is quite clear that there is a lawful custody defense for a parent whose sole intent was to assume lawful control of his or her children. If, on the other hand, it can be shown that the parent’s intent was to terrorize or punish the other parent while attempting to obtain lawful custody, that intent to terrify will disqualify the parent from making a successful lawful custody intent claim.
While the lawful custody defense is commonly employed to defeat parental kidnapping charges, interference with child custody charges may still apply. If the family law court determines that the parent intended not to kidnap the children but to instead interfere with their custody, the court can sanction the parent with contempt orders and require him or her to pay the legal fees incurred by the parent who was attempting to have the children returned.
Parental Kidnapping Law Is Complicated
If your children’s other parent has kidnapped or snatched trhem, you need an experienced Houston family law attorney on your side. If, conversely, you’ve been accused of kidnapping or snatching your own children, you need an experienced Houston family law attorney on your side. These situations are extremely complicated, and you shouldn’t attempt to face either of them on your own. If the situation is an emergency, if you don’t know where your children are, or if you are concerned about your children’s safety, do not hesitate to contact the authorities before obtaining experienced legal guidance. Your children’s well-being should and will naturally remain your primary concern throughout this ordeal.
If You Are Dealing with a Parental Kidnapping, You Need an Experienced Houston Family Law Attorney
Child custody arrangements are typically the most emotionally fraught issue of any divorce, and if you are dealing with a parental kidnapping, it can be excruciating. The compassionate family law attorneys at the Rudisel Law Firm, P.C., in Houston, are on your side and are here to help. You children’s welfare is naturally your primary concern, and our dedicated legal team has the experience, empathy, and skill to aggressively advocate for your rights and for your children’s well-being. Please don’t hesitate to contact or call us at 713-781-7775 for a free consultation today.