Is your former partner or spouse continually violating a child custody agreement or order? Understanding when you can file parental kidnapping charges in Pennsylvania is crucial. With over 40 years of experience, the dedicated child custody attorneys at Schwartz, Fox & Saltzman, LLC can work with you to protect your child and your parental rights.
Our law firm has prepared this guide to allow you to familiarize yourself with the custody laws and circumstances that constitute parental kidnapping and the potential legal actions you can pursue.
What Counts as Parental Kidnapping in PA?
Under Pennsylvania law (§2904), parental kidnapping occurs when a parent takes any child under 18 years from their parent, guardian, or other lawful custodian without legal justification knowingly or recklessly. As the facts of each case are unique, parental child abduction may take many forms. Common forms of custodial interference include:
- Refusing to return a child under a child custody order
- Removing a child from school
- Removing a child from Pennsylvania
- Removing a child from the United States
What Doesn’t Qualify as Parental Child Abduction?
Simply being late returning a child to the other parent is not custodial interference. Additionally, Pennsylvania law (§2904(b)) allows you to refuse to return your child if you reasonably believe the child is in an immediate danger to their health or physical safety. Further, parental kidnapping does not occur if the child was taken without criminal intent and is at least 14 years of age.
When to File Parental Kidnapping Charges
Knowing the appropriate timing to file parental kidnapping charges is critical for a successful legal response, and you should file parental kidnapping charges if you suspect your child has been taken or retained without legal justification. You should also file charges if the other parent’s actions significantly threaten your child’s physical safety. Before filing any charges, it is important that you speak with an experienced family lawyer. Know that the district attorney or prosecutor will rarely prosecute a parent under these statutes; rather, the district attorney or prosecutor will advise the parent to go to Family Court and litigate there.
How Does Parental Kidnapping Affect a Child Custody Order?
Custodial interference can significantly impact existing child custody arrangements. Pennsylvania law (§5323(g)) allows either parent to file a motion to hold the violating parent in contempt of court. Pennsylvania law (§5328(a) and §5338(a)) also allows the non-violating parent to file a motion to modify custody if they can prove a modification is in the child’s best interest.
What to Do if You Suspect Your Ex Took Your Child Outside of Your Agreement
If you suspect your ex-partner has taken your child outside the agreed-upon terms of custody, it is essential to take swift legal action. Under Pennsylvania law (§5201 et seq.), you can file a petition for preventative measures.
Suppose you prove a credible risk of abduction. In that case, the court can modify the other parent’s visitation or custody rights and order law enforcement to safeguard your child appropriately.
Penalties for Parental Kidnapping in PA
Custodial interference is a third-degree felony under Pennsylvania law (§106(b)(4)). This means the maximum penalty is seven years in prison and a $15,000 fine. A parent held to be in contempt of a child custody order faces the risk of six months in jail along with a $500 fine.
Parental Kidnapping Laws
Parental kidnapping can involve travel across local and state lines and International boundaries. Accordingly, there are State and Federal laws covering parental abduction. Comprehending parental kidnapping laws at both the federal and state levels is essential for navigating legal matters related to child custody and kidnapping.
In 1980, the United States enacted the Parental Kidnapping Prevention Act (28 U.S.C § 1738A). This law prevents parents from engaging in forum shopping. Stated more clearly, the non-custodial parent cannot take the child to another State to obtain a favorable outcome in a child custody case.
Pennsylvania State Laws
In addition to custodial interference, Pennsylvania law (§2902(c)) also criminalizes unlawfully restraining a minor. Unlawful restraint by a parent is defined as physically restraining a child under 18 in such a way that could cause a serious bodily injury. Due to the risk of injury, Pennsylvania law (§106(b)(3)) classifies unlawful restraint as a second-degree felony with a maximum penalty of 10 years imprisonment.