Recently on our divorce forum a user asked, “My wife and I are in the midst of a divorce. Before the divorce was final my wife took the children to Florida on vacation. Now she refuses to bring them back to Texas or to give me an address of where she lives. What are my rights? Is this considered parental kidnapping?”
Parental kidnapping…it’s not simple
The first thing to understand about “parental kidnapping” (more often termed custodial interference) is that it is a very complicated question and what will and will not constitute parental interference will vary by state.
For example, some states will only consider the action of taking a child out of state to be illegal if it violates a custody order or if a custody case is pending. Other states, however, may consider the intent of the parents, such as whether or not they intended to conceal the whereabouts of the child. Other factors the courts will consider include the marital status of the parents, whether either parent has relinquished their parental rights, and whether the move is a long-term move or a short-term visit.
Given the complexity of parental kidnapping, t’s important to talk to a lawyer who is familiar with the laws of your state.
Texas Penal Code and Interference with Child Custody (parental kidnapping)
You mentioned that you and your spouse are in the process of filing for divorce. Although the court has not yet issued a child custody order and you and your spouse have equal access to the children, Texas law does address certain limitations which have been imposed on you and your wife in regards to your children. Let’s take closer look at what Texas law considers an “interference with child custody” or what you refer to as parental kidnapping.
Under Texas law, it is illegal for a person to take or retain a child under the age of 18 if it specifically violates the express terms of a judgment or order, or the parent has not yet been awarded custody and a suit for divorce has been filed.
In this case, the parent is not allowed to “take the child out of the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, without the permission of the court and with the intent to deprive the court of authority over the child.”
The statute goes on to suggest that a defense of the charges may be valid if the child is returned to the appropriate district within three days after the date of the commission of the offense.
So in your case, if your wife took your children to Florida for a short trip to Disneyworld and notified you she was going to do it, even if you were against the trip, she might be allowed to legally go, assuming she returned within a few days.
What would not be allowed under Texas law, however, is for her to go to Florida with the express purpose of hiding her children from you, refuse to bring them back to Texas, and intentionally conceal them from you to keep you from having access to them. This is a serious offense and she could be charged with a crime.
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