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What is Kidnapping?
Kidnapping is the taking of a person without their consent, usually with a threat or the use of force, and then confining them in some way that limits or entirely prevents their freedom to move outside of a certain area or communicate with others. In many jurisdictions, kidnapping requires transferring the person from one location to another. A kidnapping charge may apply when ransom is demanded in exchange for a victim’s safe return, but not all kidnapping charges will involve extortion.
The type of force used in a kidnapping could elevate the charges to aggravated or first-degree kidnapping. Charges are more likely to elevate if the victim is injured, assaulted, or a deadly weapon was used when committing the kidnapping.
When qualifying an act as a kidnapping, the circumstances of the kidnapping tend to play a bigger role than the length of time a person is confined against their will. Forcefully restraining a person and taking them to a restricted location can qualify as a kidnapping charge immediately, where some cases may require a longer length of time.
Legal actions against kidnapping are tried in state courts, unless the victim was transported over state or country lines, in which case it becomes a federal crime.
What is Parental Kidnapping?
Parental kidnapping, or familial kidnapping, is the most common form of kidnapping in the U.S. In these cases, a parent takes or keeps their own child without the other parent’s consent, and prevents the other parent from accessing the child again.
The vast majority of parental kidnappings involve custody disagreements. Perhaps a parent wants to have sole custody of their child in cases of joint custody, or a child custody arrangement prevents or limits a parent’s visitation. The parent seeking more time with, or control of, their own child violates the custody agreement to unlawfully take and hide their kid. It can occur when a parent takes a child who is outside of their physical custody at the time, or if a parent with temporary physical custody refuses to surrender the kid back to the other parent when it’s time to do so.
Parental kidnapping can also apply to a parent who lost their parental rights and attempts to retrieve their child from a legally-appointed guardian or foster care without permission from the court.
It usually doesn’t matter if the child agrees or wants to go with the kidnapping parent; a minor child’s consent is not a valid consent in these cases. Typically, parental kidnapping is considered a crime committed against the other parent, not a crime against the child.
Not all familial kidnappings are perpetrated by parents and may involve other relatives instead, like a grandparent.
Is it Kidnapping to Take My Child If the Other Parent is Dangerous?
Even if the parent or relative who takes the child does so because they believe the child is safer with them, they could still face child kidnapping charges if they violated a custody arrangement. Parents concerned about their kid’s safety when around the other parent must apply for an emergency custody order through the courts and then wait for a hearing to change a custody arrangement.
What is the Difference Between Kidnapping and Abduction?
“Kidnapping” and “abduction” charges are similar in many ways. They both generally involve taking a person illegally, transporting them to a different location, and confining them in some way.
The exact differences between kidnapping versus abduction varies by state law; in some locations, the terms are virtually interchangeable. In others, kidnapping may specifically require ransom demands, or necessitate that abduction involves a child victim or taking a person for the purpose of committing certain sexual-based crime like forced marriage. Jurisdictions may also differentiate the two based on the level of threat, force, or bodily injury during the commission of the crime.
False imprisonment includes similar elements to kidnapping and abduction, but is not a crime. Instead, it’s the civil court equivalent to kidnapping or abduction charges in which a victim sues their abductor for monetary damages.
What are the Penalties for Kidnapping?
A kidnapping conviction can have drastic consequences. A number of mitigating and aggravating circumstances can impact the kinds of charges, which impacts minimum and maximum criminal penalties.
Intrastate parental kidnappings in which the child is never harmed tend to have the most lenient sentences, typically ranging from one to three years in prison and fines around $1,000 or more. Aggravating factors such as the level of force, bodily injury can increase penalties to prison sentences around five years or more. Parents convicted of kidnapping their children are unlikely to regain custody rights in the future.
In kidnapping charges outside of parental custody cases, penalties can range from a few years in jail in the least violent circumstances, up to 20 years or even life imprisonment if the kidnapping threated the victim with a deadly weapon, used force, injured, or assaulted the victim while in their custody.
The length of time a victim is held can also impact sentencing. The longer a victim is held, the more likely the defendant is to face harsher penalties.
Do I Need a Criminal Defense Lawyer for Kidnapping Charges?
Kidnapping charges are very serious, and the potential punishments are severe. Defenses can be tricky to present under such technical and varying laws. As such, it could be in your best interest to work with an experienced defense attorney. Criminal defense lawyers who work in, or are knowledgeable of, family law can be especially beneficial.
The right defense attorney can help build a valid defense, discredit the opposition’s case, challenge the legal procedures used by the investigators and prosecution, and advocate for their client in court. If the evidence against their client is too insurmountable for a case dismissal or acquittal, an attorney can negotiate for plea deals, lesser charges, or more lenient penalties.