One of the most frightening experience for a parent is to realize that their child is missing. If the child was taken, it may have been by a stranger, or even a parent or relative who wants custody of the child outside the legal process. Even if a parent taking their own child thinks they have the child's best interests at heart, they may be charged with parental kidnapping, which is a very serious criminal charge.
According to the Massachusetts Public Safety and Security Office, family abductions account for the largest category of missing children classification after runaways. Non-family abductions accounts for the smallest category.
At Dhar Law, LLP, we provide legal defense for those accused of child abduction in Boston and throughout Massachusetts. Call 617-391-0592 to speak with our lawyers today.
Kidnapping of a Child
Under the laws of the Commonwealth of Massachusetts, kidnapping of a child under the age of 16 provides for a separate penalty under the kidnapping statute. Whoever, without lawful authority forcibly or secretly confines or imprisons a child under the age of 16 within the commonwealth against his will or forcibly carries or sends such person out of the commonwealth or persuades or kidnaps the child with the intent to cause them to be secretly confined against their will, shall be punished by imprisonment in state prison for not more than 15 years.
However, even if all other factors are present, a parent can not be charged with the above crime, because it specifically does not apply to parental kidnapping. There is a separate statute to address this not uncommon occurrence.
Section 26A applies to the kidnapping of a minor or incompetent by a relative. For children under the age of 18, it is unlawful for a relative of the child to, without lawful authority, hold or intent to hold a child for a protracted period, or takes or entices a child from their lawful custodian. The penalties for parental or relative kidnapping includes punishment of up to 1 year in prison and up to $1,000 in fines.
In cases where the parent takes the child out of the commonwealth, or exposes them to a risk which endangers their safety, the penalties are increased to up to 5 years in prison, and a fine of up to $5,000.
International Parental Kidnapping Charges
Most international abductions are family abductions. While a foreign-born parent may think it is easier to keep their child if they take them to another country, these events can turn into international incidents, and the local country may not take the side of the allegedly abducting parent. Additionally, they may face foreign criminal charges, local state criminal charges, and U.S. federal criminal charges. There is even an international Hague Abduction Convention for the purpose of protecting children from an international abduction by a parent. The Convention provides a legal mechanism for foreign countries, including the United States, to work together to resolve an international abduction case.
International parental child abductions are also a federal crime under the International Parental Kidnapping Crime Act (IPKCA). The federal Act makes it unlawful for someone to remove a child from the United States, or attempting to do so, or retaining a child outside the U.S. with intent to obstruct the lawful exercise of parental rights. It applies to any child under the age of 16. Penalties include a fine and imprisonment for up to 3 years.
However, there are affirmative defenses to charges under the IPKCA. These include where the defendant acted under the provisions of a valid court order obtained under the Uniform Child Custody Jurisdiction Act; where the defendant was fleeing an incidence or pattern of domestic violence; or the defendant failed to return the child as a result of circumstances beyond their control, and made reasonable attempts to notify the other parent within 24 hours.
Defenses to Child Abduction Charges
Allegations of child abduction are very serious, and often time the public and community will jump to conclusions of guilt well before the defendant had his day in court. It may be a case of mistaken identity, or someone seeking revenge may make allegations that a person was responsible for kidnapping a child. A Massachusetts criminal defense lawyer will do an in-depth investigation into your case, in order to develop the best strategy to defend the charges against you, and keep you out of jail.
In child custody cases, tensions can run high and tempers often flare, with the children caught in the middle. One side may see the court as favoring one parent over another, which can lead to rash decisions in spite of the severe consequences. If you have been charged with parental child abduction, you have rights and you have defenses. Call our Boston law firm today at 617-391-0592.