Can a Father Kidnap His Child?

About Parental Kidnapping and Child Custody Laws

While not all of us have experienced the difficult and heartbreaking challenge of dealing with a parental kidnapping case, most of us with smartphones receive an AMBER Alert from time to time. AMBER Alerts are regional or local alerts that are sent as an emergency response to notify the area that a child is missing. If you have received an Amber Alert before, then you are closer to this situation than you might think. That is because the vast majority of Amber Alert cases involve abductions by a non-custodial parent. If you are dealing with a child custody case, this might leave you wondering what your rights are and whether you can be charged with kidnapping even if the kid is your own.

In the state of Texas, a father or any parent who does not have rightful control of the child in question can be charged with parental kidnapping. If you have legal custody of the child pursuant to a court order, then you cannot usually be charged with parental kidnapping. However, you can be charged with parental kidnapping if you violate a custody order and then unlawfully take the child.

When a child is born, both parents have equal custodial and visitation rights until an order is made by the court that limits a parent’s right to access that child. If there is no child custody suit involved, then either parent has the right to take the child and exercise custody, so this would not constitute parental kidnapping. This applies even if one parent does not approve of the location of the other child. For example, if two legal parents disagreed about whether a child could be taken out of school early, and one parent went ahead and allowed them to leave early anyway, this would still be legal so long as there was not a formal custody agreement in place.

This means that parental kidnapping typically occurs when one parent has sole custody or when one parent denies visitation rights to the other parent. There are two types of sole custody: sole physical custody and sole legal custody. With sole physical custody, the child must reside at an agreed location with one of the parents. Some cases might allow the potential for visits or supervised visits with the other parent, unless the court determines that the visits are not in the best interest of the child. The court would only rule out visits due to issues like abuse, neglect, substance abuse, and instability. Outside of these visits, one parent would still have physical custody of the child.

Just because one parent has sole physical custody does not mean they have the right to make all the decisions regarding the child’s wellbeing. This type of power requires sole legal custody. If a parent has sole legal custody, they are able to make all of the decisions about the child without consulting the other parent, such as medical care, education, and religious choices.

In most cases, in order to terminate a parent’s rights in Texas, the other parent must have convincing evidence of one of the following grounds for termination under Family Code section 161.001(b), which states that the court can terminate the parent-child relationship if the court finds by clear and convincing evidence that the parent has:

• Voluntarily left the child alone or in the possession of another, not the parent, and expressed an intent not to return
• Voluntarily left the child alone or in the possession of another, not the parent, without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months
• Voluntarily left the child alone of in the possession of another without providing adequate support of the child and remained away for a period of at least six months
• Allowed the child to remain in conditions or surroundings that damage their physical or emotional well-being
• Engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the physical or emotional well-being of the child
• Failed to support the child in accordance with the parent’s ability during a period of between one year and six months of the date of the petition filing
• Abandoned the child and failing to identify the child or furnish means of identification, and the child’s identity cannot be ascertained through reasonable diligence
• Voluntarily, and with the knowledge of the pregnancy, abandoned the mother of the child at a time during her pregnancy with the child, continuing through the birth, failing to provide adequate support or medical care for the mother during the time of abandonment before the child’s birth, and remaining apart from the child or failing to support the child since birth
• Having been the major cause of the failure of the child to be enrolled in school as required by the Educational Code or having been responsible for the child’s absence from home without the consent of the parents or guardian for a substantial period of time without intent to return

The list above is not exhaustive of what is included in Family Code section 161.001(b), but it gives you an idea of the kind of situations that could constitute sole custody. In terms of the way that kidnapping plays into this, if one parent has sole custody and the other parent violates their terms, they could be charged with parental kidnapping.

Furthermore, if the parent who has sole custody denies rightful visitation to the other parent, even without a standing custody decision, it could be considered parental kidnapping. If there is a valid, court-approved custody order, denying visitation is illegal and has serious consequences for the parent who commits this crime. If one parent feels it is not in the best interest of the child to visit with the other parent, they need to take the proper steps in order to formalize this decision through the courts if they want to avoid parental kidnapping charges.

The Clark Law Firm can help with many aspects of a parental kidnapping case, providing both family law services and criminal defense. If you need help navigating your child custody case, give us a call at (817) 435-4970 or contact us online.