Last Updated on August 17, 2023 by Lori Pace
Each parent wants their child to have a good relationship with their ex-partner, but it shouldn’t be at the cost of their relationship. Children are often caught in the middle of disagreements between parents. The priority of the court, however, is the best interest of the minor in resolving these issues. So, if you wonder that without permission, can a spouse take a child?
The answer is…
Your specific circumstances will determine whether you are convicted of parental kidnapping. A criminal defense lawyer can help you get the best possible outcome from the charges.
What Is Parental Kidnapping?
You can win parental kidnapping cases with a solid defense. In the absence of a court order, you and your spouse both have custody of the child. No matter how distressing or frightening it may be, you or your ex-spouse can take the minor on a vacation without each other’s permission.
The following are factors that the court will consider before you are charged with parental kidnapping:
- Existence of custody orders from the court
- Your legal status as the kidnapping parent
- What was your intention for the kidnapping?
You cannot be convicted of parental kidnapping if your child is older than the consenting age at the time you take them – except:
- If your child refuses to go with you and coerce them.
- If your child with special needs is unable to make decisions for themselves.
If My Ex (or Spouse) Denies Me Visitation Rights, Can I Take My Child without Permission?
If the custodial parent fails to follow the arrangement or order, you can make up the missed visitation. It is important to take note of all missed visits and to agree on make-up dates. However, if your ex-spouse refuses to agree, parental kidnapping isn’t an option.
If you take your child outside of the scheduled visitation, your ex can call the police and arrest you. This is clearly not something you want to do with your child. Talk to a lawyer who can draft a letter for your ex regarding missed visitations. If they refuse to act, you can file a lawsuit to impose your rights.
What If I Want To Travel With My Child Abroad?
If you and your ex-spouse have the same responsibility to your child, with no restrictions, or arrangements, you can’t travel abroad with the child without each other’s permission. Otherwise, you could be charged with international parental kidnapping. If your ex cannot consent to you traveling abroad, you can ask the court for permission. It is important to submit the application at least six months in advance of the travel date to avoid delays.
If you are solely responsible for your child and there are no orders or restrictions, you can travel to other countries without permission from either parent. You have 28 days to travel with your child overseas if you have the Main Care Order.
If My Ex-spouse Have Primary Custody, Can I Take My Child Legally?
You can request the court to reconsider your custodial rights if your ex is violent or neglectful towards your child. These are some of the steps that you should take in these circumstances:
- Report the abuse to the police
- Get a restraining order
- Ask for help from family, friends, and neighbors who have seen the abuse.
- Keep track of the date and time that the abuse occurred
- Get a private investigator to take videos of the neglect.
If I Leave The Jurisdiction With My Child, What Can My Ex-Spouse Do?
If you are in the wrong country or state with your child, your ex could file charges against you. Kidnapping charges can result in a $10,000 fine and a sentence of either eight, five, or three years imprisonment. Even if you’re not convicted of criminal charges, you may be penalized by the family court.
A family court judge may decide to give your ex sole or partial custody. Arguments can be made that your ex misunderstood you and you were granted permission. An experienced kidnapping lawyer will be able to evaluate the facts and present a strong defense.
What Does My Ex-spouse Need To Show Proof And Charge Me With Parental Kidnapping?
Your co-parent will have to prove that you are guilty of parental kidnapping. Your ex must prove that you intend to take their parental rights away by taking the minor. They may argue that:
- You have a criminal history in the past against you
- A history of domestic violence, child abuse, or mental health issues.
- Recent liquidation of your assets, closing bank accounts, quitting a job, or selling a house.
- When you are financially independent and have no reason to stay in the area, have a job elsewhere, or are not employed.
- Your family and friends are located outside the country or state
- You are a citizen or have family ties to your country of origin
- You don’t have strong ties with the child’s home country
- Before the current incident, you planned or threatened to abduct the child.
Guidance From An Experienced Lawyer about Taking a Child Without Permission
The custody order terms will determine whether you are allowed to make decisions for your child alone or with your ex-spouse. Kidnapping lawyers can review the documents and simplify the legal jargon to explain what you can or can’t do with your ex-spouse’s permission or notice.
Children can experience anxiety, depression, withdrawals, fearfulness, and regression as a result of heated custodial disputes. The legal process reduces the impact on minors. The best you can do is to seek advice from an experienced attorney in California to resolve your child-related issues.