Parents can fall into the trap of viewing their parental rights as black and white. You may think that since your child is yours, you can decide when you physically spend time with your child. However, there are many times when a parent’s right to have physical control over their child is limited.
The most basic example is when there is a child custody order that dictates when you and your child’s other parent retain physical custody. Also, your right to have your child with you could be restricted due to a restraining order, Department of Social Services (DSS) investigation, or the termination of your parental rights. If you take your child with you when you are not entitled to, you could be accused of parental kidnapping in North Carolina.
North Carolina’s criminal kidnapping law is defined in North Carolina General Statute (NCGS) §14-39. It states anyone who restrains, or removes an individual 20 years of age or over without that person’s consent, or any minor under the age of 16 without their parents’ consent, is guilty of kidnapping if it is for the purposes of:
It may be confusing regarding how you can kidnap your own child. As one of the child’s parents, you can consent to take your child from one place to another. However, this is not always true. If your child’s other parent has the right to the child based on a court order, then you do not have the right to decide where your son or daughter spends time with their other mother or father.
If you currently cannot have contact with your child due to a restraining order, you do not have the right to maintain physical control over them. Also, if a court terminated your parental rights, then you no longer have the right to contact your child, let alone the right to decide where they go.
Parental kidnapping in North Carolina is rarely the scary situations you imagine. At Breeden Law Office, we often see parental kidnapping occur because of a parent’s anxiety about their future relationship with their child, or their fear for the child’s safety in another home.
Parental kidnapping often occurs when one parent refuses to hand over their child to the other parent when it is their turn. It may be that you picked your son or daughter up for a weekend at your house, and then you decided not to return them to their other mother or father’s home.
It could be because you believe the other home is not safe. No matter how valid your concern, not returning your child when you are legally obligated to could backfire on you.
Parental kidnapping may occur when a parent decides to have a spontaneous, special day with their child. Maybe your child’s other parent decided to pull your son or daughter out of school to play hooky and see a movie.
Suddenly, you get a call from the school that your child is absent, or your child does not arrive home after school like normal. This can cause you to panic and search for your child.
Unfortunately, parental kidnapping can also be more sinister. Your child’s other parent could have picked up your child up and taken them out of town. This creates a serious and immediate situation in which you need the help of an experienced child custody attorney.
In order for a situation to entail parental kidnapping, you or the other parent must violate a court order. If there is no court order in place granting one parent custody of your child at a specific time or ordering a certain parent not to have contact with the child, then both parents have a right to time with their child.
Without an order in place, you do not commit parental kidnapping by keeping your child longer than you agreed to. Your child’s other parent would not commit parental kidnapping by pulling your child from school for a day without talking to you first.
If you are unhappy with the other parent’s actions in regard to not maintaining your agreed-upon parenting plan, it is time to solidify your agreement. Contact a North Carolina child custody lawyer at Breeden Law Office for help with this situation.
If you have been accused of parental kidnapping, there are several avenues the other parent may take. Your child’s other parent could file a motion for contempt in family court if you violated a custody order.
If the judge finds you are, indeed, in contempt of the court, you face civil or criminal contempt. If you are found in civil contempt of a court order, you can be fined and imprisoned. If you are found in criminal contempt of court, you can be fined up to $500 and spend at least 30 days in jail.
If you allegedly kidnapped your son or daughter, their other parent could file for a temporary emergency custody order. A North Carolina judge will temporarily give your child’s other mother or father permanent custody if it will:
If the other parent is granted the emergency order and you refuse to hand over your child, then the other parent could begin contempt proceedings, which could lead to criminal penalties.
Your child’s other parent can use your unlawful conduct to request a modification in the child custody schedule.
Parental kidnapping in North Carolina can also lead the other parent to call the police. If your child was unharmed, then you may be charged with second-degree kidnapping, which is a class E felony.
You could also be charged with felonious restraint under NCGS §14-43.3 if, without your child’s other parent’s consent, you unlawfully restrained your child who was under the age of 20 years and transported your child with a vehicle or other conveyance, like a train or bus. This is a lesser offense of kidnapping and is a class F felony. While criminal cases like this are rare, it is still possible so think carefully before you act.
If you are dealing with a situation in which you have your child with you when the other parent says you should not, or the other parent has taken your child against a court order, you should contact an experienced child custody lawyer right away. Attorney Jonathan Breeden is here to listen to your situation and advise you on whether or not you are dealing with parental kidnapping in North Carolina.
Call Breeden Law Office today:(919) 296-3978