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Can I Be Accused of Kidnapping My Own Children?

Friday, April 5th, 2013 at 6:10am

Family dynamics are often very complicated.  Family becomes even more complicated when couples who have children break-up.  Most parents are looking out for their children’s best interest, but sometimes the law may not agree with your actions.  This occurs in the case of parental kidnapping, where one parent keeps the children from the other without their permission.  You may have a good reason for keeping your child, but if you don’t have the legal right to do so you may need the help of a qualified Illinois criminal defense attorney.

The law typically assumes parents share equally in their parental rights.  This assumption changes when couples separate or divorce and turn to the court for determination of custody and child support.  There are few considerations to keep in mind about custody before the crime of kidnapping can be discussed.

General Categories of Custody

A court usually determines lawful custody of a child by decree or order awarding custody to one or both parents and determining child support payments.  If there is no legal custody determination, the mother typically has custody where paternity has not been established.  Paternity is the legal process of proving who the father is.  If child support has been ordered without a formal award of custody to the mother, the mother typically has custody also even where paternity is not established.

If a father has been caring for a child that the mother has abandoned, the mother will not be assumed to have custody.  For married couples with no legal custody order, both parents have equal parental rights.

Defenses to Parental Kidnapping

Under Illinois law, if you have been accused of kidnapping your own child, you have defenses to the allegations.  If you have lawful custody of your child, you cannot kidnap your child.  If custody has not been determined, you cannot kidnap your own child unless you have kept the child hidden from the other parent for more than 15 days.  Keeping a child hidden means to conceal your whereabouts and making no attempt to contact the other parent to tell them where you and the child are.

As a parent, you also cannot have kidnapped your own child if you are escaping domestic violence.  The law will protect you from criminal charges if you are protecting yourself and your child from harm.

Lastly, if you have visitation rights and you are unable to return the child for reasons beyond your control, you have not abducted your child.  This defense requires you to contact the other parent within 24 hours to let them know about the situation.  You also have to return the child as soon as you can.

We all know that life can get very complicated and messy.  Sometimes our relationship problems can be taken to police out of spite or misplaced fear.  While this may seem like a Family Law matter, the charge of child abduction is a felony, punishable by fines and imprisonment.  If you have been accused of kidnapping your own child, call a qualified Illinois criminal defense attorney today.

Posted in Criminal Defense, Domestic Violence

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