Arons & Solomon | November 9, 2021 | Child Custody
In New Jersey, retaining or removing your child in violation of a child custody order can constitute kidnapping. If your actions do not rise to the level of kidnapping, a prosecutor could still charge you with the lesser offense of custodial interference.
In addition to possible criminal liability, you could also face serious consequences in your child custody or divorce dispute. Family law judges do not look kindly on parents who violate custody orders. You could lose visitation and custody rights after your spouse credibly accuses you of violating the custody order.
Here is some information about parental kidnapping in New Jersey.
New Jersey Parental Abduction Laws
Studies show that for every child abducted by a stranger, three to four children are abducted by a family member. For centuries, the law treated family abduction as a non-issue. Courts usually treated parental abduction as a family dispute.
But things shifted in the late 1970s. States (including New Jersey) passed laws treating family abductions as crimes. This gave the non-abducting parent more resources for recovering the missing child.
Instead of looking for the child on their own or hiring a private investigator, the parent could call the police and report the abduction. The police could then use all their investigative tools, such as tracking the abducting parent’s cell phone and payment cards, to find the child.
Police got an additional tool in 1996 when Amber alerts were created. These media alerts allow police to quickly collect tips about the abductor’s movements.
To commit kidnapping, you must take your child with the intent to permanently deprive the other parent of custody. If the evidence shows you lacked this intent, prosecutors cannot charge you with parental kidnapping.
New Jersey treats parental kidnapping the same as stranger kidnapping. You could face 15 to 30 years in prison upon conviction. If you release your child safely before you are caught, New Jersey reduces your potential sentence to five to ten years in prison.
The statute sets out three defenses for kidnapping; you did not commit kidnapping if:
- You believed your child faced imminent danger, and you contacted the police after taking the child.
- You believed you had permission from the other parent or the court to take the child.
- Your child, at least 14 years old, chose to go with you, and you did not intend to kidnap the child.
If your conduct does not constitute kidnapping, prosecutors could still charge you with custodial interference.
You commit custodial interference when you conceal or take your child to:
- Deprive the other parent of their custody or parenting time
- Evade the court’s jurisdiction after you become aware of a pending divorce or custody action
- Violate a custody or parenting time order
New Jersey punishes custodial interference harshly. On conviction, you could face five to ten years in prison if you held your child for more than 24 hours. If you held your child for fewer than 24 hours, a judge could still sentence you to three to five years in prison.
The same defenses apply to custodial interference as kidnapping. You can avoid conviction by showing evidence of:
- Your lack of intent
- Imminent danger to your child’s safety
- Your belief that you had permission to take the child
One additional defense to custodial interference could exist. If you and your spouse are still married and you are unaware of any impending custody actions, you can keep your child until your spouse files a court action.
Child Kidnapping and Divorce
Divorce can trigger strong emotions. But acting unlawfully on those emotions can have serious consequences. At a minimum, a family division judge could deprive you of custody or parenting time for violating a temporary or final order.
But worse than that, you could face years in prison and complete alienation from your children. In short, you could cause the exact situation you intended to avoid by taking your children.