Options When Parental Kidnapping is Suspected
While parents who share child custody have to negotiate and compromise when disagreements arise, generally they are able to cooperate and keep the needs of the child a priority when making decisions. However, when parents who share childcare responsibilities with a former spouse or partner are asked what their greatest fear of the arrangement is, they will likely respond with having the other parent take their child out of the state or country.
Individuals recognized as parents under the law, usually through marriage or a paternity claim, have equal rights and access over their child. Therefore, they do not need permission from the other parent or a Court to see their child or travel with their child. However, when an enforceable parenting plan is in place governing when and how a parent can exercise his or her rights, the extent of that access and right to transport the child is restrained. In this situation, parents are required to abide by the terms of the parenting order, specifically, the allocation of parenting time.
Unfortunately, some parents decide not to follow these rules and become determined to take the child out of the state or country, or otherwise conceal him or her from the other parent. Typically, such action is precipitated by warning signs.
Taking or concealing a child from a parent with custody rights is one of the most damaging actions another parent can take, and brings serious potential consequences at multiple levels of government, both Federal and State. Further, procedural laws are in place at the state, national and international levels to help facilitate the safe return of abducted children.
Starting with international treaty laws, the Hague Convention on the Civil Aspects of International Child Abduction governs if the parents are citizens of different countries, and provides legal protections to facilitate the child's return if he or she is removed from a country illegally. Courts involved in disputes under this treaty must determine if the child is wrongfully detained in a country that differs from the child’s habitual home. If so, the Court must order the child's return to his or her normal country of residence, though these cases are quite complicated to present, and they require the services of an attorney highly experienced in custody matters.
Additionally, Federal law has the Parental Kidnapping Prevention Act, which gives state Courts flexibility over jurisdictional issues, and applies if a child is taken across state borders with the intent to deprive the other parent's rights.
Finally, Illinois has its own parental kidnapping law that makes it a felony offense to intentionally:
- Violate a Court-ordered parenting plan by detaining or concealing the child;
- Violate a Court order by removing the child from the Court's jurisdiction when expressly prohibited;
- Remove, conceal or detain the child without the mother's consent if paternity is not established or no custody rights were granted to the father; or
- Remove or conceal a child in the absence of a decision when a legal action for marriage or paternity is pending.
Preventing the Kidnapping
If there is a supported suspicion a parent is planning to abduct a child, the other parent can petition a Court for an emergency order of protection to request the return of the child or the removal of the other parent's access to the child. If sufficient evidence is presented to support the petition, the Court could make the order permanent for the child's long-term protection.
Consult an Illinois Family Law Attorney
Facing the possible abduction of a child is a parent's worst nightmare, and if you think your ex-spouse or partner is planning this sort of action, talk to a passionate Inverness family law attorney as soon as possible to start asserting your parental rights. The Law Office of Nicholas W. Richardson, P.C. understands how sensitive child custody matters are and will work to get the results you need to best protect your family. Contact the Palatine law firm today for a free initial consultation.