Family law cases can often be emotionally straining. Sometimes, one parent is given primary custody at the objection of the other parent. The non-custodial parent may attempt to become the primary custodian by removing the child from the state or country, making it more difficult for the other parent to find him or her and to enforce the order.

Court Order

One particular point of authority on the subject of removing a child from the state or country is any relevant court order. The court order may indicate that the parent may not remove the child from the country or the state. If the parent violates the order, he or she may be in contempt of the court order.

Alternatively, the court order may permit that the parent can remove the child to another country for a specified period of time. The court order may also state that the parent can apply for a passport for the child.

Criminal Laws

In addition to potentially violating a court order, a parent who removes a child from the state or country in an unauthorized manner may violate criminal laws. Laws of kidnapping, custodial interference, illegal transport of a child or interference with visitation may be violated.

In order for someone to be prosecuted under these types of crimes, the prosecution must be able to prove every element of the crime beyond a reasonable doubt. Every state has different laws pertaining to this scenario, so a careful analysis of the relevant statutes is necessary. For example, many states have statutes that require the taking parent to have the intent to interfere with a court order. If there is no court order, that statute would not apply.

Violation of these crimes may result in a felony or misdemeanor conviction, depending on the statute and the circumstances of the case.

Statute of Limitations

Whether the parent can be prosecuted for such an offense depends on the relevant statute of limitations. In some cases, the statute of limitations may begin to tick from the date of the violation. Therefore, if a parent leaves the country with the child and is gone for ten years and then returns to the country, the prosecutor may not be able to file a case if the statute of limitations has already run.

However, some states specifically word in their statute that the offense is a continuing one. Therefore, the statute of limitations would not begin until the parent stops interfering with the custody order. This is how Oregon’s custodial interference statute is worded.

Potential Defenses

A parent who removes a child from the state or country may have certain legal defenses available under the statute. For example, many states provide an exception for removing a child who was being abused in the other home. However, the statute may indicate that certain preliminary steps were needed for this exception to apply, such as the filing of a non-frivolous claim of this nature or reporting the abuse to authorities.

Passport Issues

In the United States, the State Department recommends that both parents be present to apply for a passport for a child. If only one parent is present, he or she must generally provide evidence that gives him or her the right to apply for the child’s passport, such as a court order that granted the parent sole legal custody the parent applying for the passport unless the court order specifically restricts it or a court order specifically giving permission for the application. If the other parent is incompetent or deceased, proof of these documents are necessary.

Legal Assistance

Individuals who remove children from the country without permission could be in jeopardy of being convicted of serious crimes. Likewise, a parent who has lost a child due to such custodial interference will likely have a difficult time retrieving the child. For legal assistance, parents should contact a lawyer who is knowledgeable in the particular area of law.

Source: HG.org