A custody order is a legally binding court order that lays out the rights and responsibilities of each parent. When parents are able to agree, they can collaborate on the terms regarding legal and physical custody, parenting time, and child support obligations. If they cannot successfully negotiate an agreement, a judge makes a decision that is in the best interests of the child.
Whether or not divorce is involved, child custody cases can be complex—and sometimes parents delay formally filing for custody because they feel they can work things out on their own or wish to avoid legal proceedings.
Proceeding without a child custody order can be a risky decision, though. A dispute could lead to allegations—or in some cases, actual instances—of parental kidnapping.
Why should separated parents have a child custody order?
When parents are separated, a custody order protects both parents, as well as the child. Custody orders do this by establishing clear expectations and boundaries to safeguard a child’s well-being and protect each parent’s relationship with the child.
If there isn’t a custody order in place, it is called de facto custody. In this case, New Jersey law states that both parents are on equal footing—neither party has a greater right or obligation to custody, parenting time, or financial support than the other.
While this can work well if parents are cooperative and respectful of each other, in situations where parents have conflict over issues involving their children, the lack of defined arrangements can leave the door open for one parent to attempt to limit a child’s contact with the other. They may even try to take a child to a different state or country without their former partner’s knowledge or permission. This is known as parental kidnapping.
What is parental kidnapping?
Let’s get more specific. Under New Jersey legal statutes, parental kidnapping (also known as custodial interference) is defined as the taking or detaining of a minor child with the purpose of:
- Concealing the child to deprive the other parent of custody or parenting time
- Evading the jurisdiction of local courts after being notified of a new custody or protective order for the child
- Violating an existing and legal order for custody of the child
Having a custody order in effect cannot in itself prevent parental kidnapping from happening, but it does establish important ground rules for parenting time and makes it easier to determine whether a parent’s actions rise to the level of behavior that must involve the legal system.
If there is not a custody order in place and your co-parent is interfering with your parenting time, or if you have been accused of parental kidnapping, it may be difficult to get your child back to their home state (the state in which the child has lived or been living) without the help of an attorney who is experienced in family law.
How to get your child back if no custody order exists
With or without a custody order, parental kidnapping is a serious crime that comes with serious fines and penalties—including jail time. Parental kidnapping cases may involve multiple authorities across law enforcement and the courts. Having an experienced lawyer helps navigate the process and create a legal strategy designed for your unique situation.
If you don’t have custody and/or parenting time orders in place at this time, it’s crucial to get a judge or prosecutor to hear your case as quickly as possible. A family law attorney with experience in custody orders can help you compile the documentation you need to file a temporary order for sole custody.
This documentation may include:
- Birth certificates, adoption decrees, Social Security cards, and other documents that prove parental relationships
- Records of where your child has lived the longest (and who they have lived with the longest)
- Records of where the bulk of your child’s support network is located (school, friends, doctors, etc.)
- The criminal history, if any, of both parents and whether the child is in danger of physical, emotional, mental, or sexual abuse
When it comes to adjudicating parental kidnapping cases, time can either be a great ally or a fierce enemy. If you wait too long to start the legal process, you may establish a precedent that will eventually work against you. Filing early and working quickly is the best way to enforce your rights.
How to defend against false assertions of parental kidnapping
Someone who moves their child out of state simply because they dislike their custody arrangement could be found guilty of parental kidnapping.
The courts have recognized, however, that there are sometimes justifiable reasons for one parent to interfere with their child’s relationship with another parent. Parents who move a child to another jurisdiction because there is an imminent threat of domestic violence or child abuse have a strong defense against parental kidnapping charges as long as they contact the appropriate authorities within 24 hours.
If you have been falsely accused of parental kidnapping, or you believe that your co-parent has interfered with your relationship with your child and that this may be parental kidnapping, contact an attorney as soon as possible to fight for your family’s right next steps and the best interest of your child.
Jacobs Berger can help with your New Jersey child custody case
The attorneys at Jacobs Berger have extensive experience working with all types of custody issues, including pursuing or defending parental kidnapping cases.
If you need help, contact our team to coordinate your strategy session.