Federal Crime to Take Your Child Across State Lines in a Divorce?

Posted on by New Mexico Criminal Law Offices

Experienced Lawyer Answers: Can Divorcing Parents Transport Children Across New Mexico State Lines?

kid on a teeter totter with parentsKidnapping is typically associated with a stranger taking a child who is not biologically related. However, there are instances of parental kidnapping in the United States; in some cases, taking your child across state lines without the permission of the other parent could constitute parental kidnapping.

While there is no parental kidnapping statute, there is a kidnapping law that provides protections to children and parents in the event that one parent tries to flee the state with a child during a divorce or other domestic situation.

However, for a case to qualify for kidnapping, it must be established that:

  • The offending parent did not have legal authority to take the child
  • There are court orders in place for custody
  • The parent leaving the state with the child did so to take him or her away from the other parent

During a divorce, the area of parental kidnapping becomes complicated.

Custody Orders Must be in Place

If you do not have an official custody order in place – which is common while going through the process of a divorce – then either parent has the right to take a child, including across state lines. If one parent takes the child out of school and then leaves the state for an extended vacation, he or she has the right to do so. While perhaps annoying and scary for the other parent, it is not considered kidnapping.

An Intent to Conceal Might be Different

One parent may be charged with kidnapping if there is an intent to conceal the child. If you were to take your child out of state to keep or hide the child from another parent, then you could be arrested for kidnapping.

There are defenses to a concealment charge. For example, if you took your child across state lines, and you did so to protect the child from a threat (such as an abusive spouse), your divorce  attorney might argue that you were doing so to protect – not conceal – the child. You must show evidence to the court that the other parent was a risk to the child’s physical or emotional health at the time when you concealed him or her.

Is it a Federal Crime?

Whether it is a federal crime or not comes down to the circumstances of the case. Most kidnapping crimes, including parental kidnapping, are prosecuted by the state of New Mexico. However, a federal authority will get involved if you legitimately kidnap your own child and take him or her across the state. Once you cross state borders out of New Mexico, you might face criminal charges.

Felony kidnapping is a serious offense, which carries a harsher prison sentence than the kidnapping offenses in the state. Therefore, it is imperative that you hire a divorce lawyer to mount a defense to your case.

Were You Arrested for Kidnapping Your Child? Contact New Mexico Criminal Law Offices Now

You could have a viable defense for taking your child, even if there was a court order in place that did not allow you to do so. Speak with an attorney at New Mexico Criminal Law Offices to explore defenses available to you at 505-375-4661 or contact us online with your questions.