WTDW Podcast | Episode 38: What To Do When.. You’re Faced with Parental Kidnapping.

by | Dec 1, 2022 | Audio, Divorce, Family Law, Jackie Critzer, Media, Scott Cardani, Video, WTDW Podcast

What To Do When... You're Faced with Parental Kidnapping.

Parental Kidnapping, Parenting, Jurisdiction, Kidnapping, Custody, Visitation

What To Do When.. You’re Faced with Parental Kidnapping.

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What To Do When.. You’re Faced with Parental Kidnapping.

What To Do When… Intro 00:01
Welcome to What To Do When… A podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss what to do when and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.

Jackie Critzer 0:28

Hi, and welcome back to another podcast with Critzer Cardani. Here in Richmond, Virginia. I’m Jackie.

Scott Cardani 0:35

I’m Scott.

Jackie Critzer 0:36
And here we are doing What To Do When…

Scott Cardani 0:39
Jackie, what’s on the docket for today?

Jackie Critzer 0:41
What To Do When… You’re faced with parental kidnapping.

Scott Cardani 0:46
Parental kidnapping – Can you actually kidnap your own kid?

Jackie Critzer 0:51
I think in some circumstances, you can. But I would argue that that phrase is misunderstood and overused and not prosecuted on a large scale.

Scott Cardani 1:05
So the question becomes, how does this even come about? I mean, is this when your husband takes your kids for the weekend and take some the grandmas without your permission is that kidnapping?

Jackie Critzer 1:17
Well, that’s what our clients seem to think. Right? That we’ve we know, oh, well, can can they’ve just moved to California? Can they do that? Is there an order telling them that they can’t? Is there an order in place talking about you know, custody and visitation between you and that other parent? Well, those are questions you got to answer first. But if there’s no order in place, and you wake up, and you know, Mom’s gone, or Dad’s gone, and left a nice little handwritten note, I’m gone, I’ve taken the children, we’re moving to fill in the blank, Minnesota, California. Now, for purposes of today, we were focusing on the United States, there are also international laws that go with this sort of topic of parental kidnapping, which is not really what it sounds like. But for purposes of today, we’re talking about inside the United States.

Scott Cardani 2:08
Yeah. And in what it happens, if you do have an order or something in place, then it could be kidnapping. And then if the the other party stays in Virginia, it’s kind of considered a misdemeanor. And if it goes outside of the state, it can be a class six felony. But really, what we want you to understand today, more than anything, is what this means and we throw around, this term kidnapping, but the question becomes, can you really kidnap your own kid? And the answer is, maybe. And that maybe is really, like we said, focused on the order and focused on. Obviously, if you secret your kid away from the other parent in a way that you’re hiding them, I think they can use the 18.2 47 against you and figure that out without an order in place. But it’s technically not prosecuted unless there’s some kind of order in place between the parties.

Jackie Critzer 3:01
Well, but even then they the code section that talks about abduction, and kidnapping in Virginia generally has a subsection that specifically says if it’s a parent versus a parent, the first step is contempt of court, right? The first thing when you when you’re calling us and saying they’ve taken the child, what do I do? Our first response is not usually going to be called the police. They’re gonna they’re gonna tell you, is there an order in place? Yes, there is. They’re gonna say this is a civil matter. But if there’s not an order in place, is it kidnapping? And we just said no. So it does kidnap parental kidnapping? Is that even a proper term really, when it comes to any of this? And I would argue which it’s really not.

Scott Cardani 3:41
Yeah, it’s really not kidnapping, like in the sense of the word kidnapping is usually by somebody else other than the parents. So you’re right, we’re technically not the word is misused and overused and overran and it really causes a lot of problems. But what we’re doing we are saying though, is if you secret your kids away from the other parent, there’s consequences, but those consequences are gonna come through the Civil Court. So what happens a lot of time in our practice is one parent may take off to Pennsylvania, for instance, with the kids like Jackie said, letter in the middle of night, they wake up, the other parent wakes up and says, my kids are gone. Well, that gets into a little bit of federal law, and I don’t want to prolong this with law, but there’s the it’s called the P kPa. It’s the parental kidnapping Prevention Act. But basically, it sounds like, again, parental kidnapping, it really doesn’t deal with that. What it really deals with is who the home state is what state controls the custody petition. So what we would suggest if somebody does that to you, and you’re the victim of that, the first thing you do is file an emergency emergency petition in the court, which we can help you do. Once that’s before the court if the other party’s in Pennsylvania, and maybe say they run to the courthouse and try to get custody up there. What would happen is the judges would actually determine In which home state now usually goes by the residency, the six months residency requirements, some states are a little less. But the bottom line is, wherever the kid’s been living, the longest in that short period of time, is where, usually what courts gonna get jurisdiction and that means if you’re their parent, it took off to Pennsylvania, you may be going back to Virginia, to try the case. And then, when that happens, what normally happens is that Judge will put an order in place to you for you to return that child. And then if you keep that child in Pennsylvania, then we got some problems.

Jackie Critzer 5:31
Well, I’ve actually dealt with this very early in my practice, we had an order from here in Virginia, for a grandmother to have custody in the mother picked up the children for visitation, and then left the state. And mom knew where she was going. And she was clearly in violation of the order. And I called the local sheriff and the the district attorney or prosecuting attorney for that jurisdiction and talk to them both. And they jumped right on the order, they said, send us a copy of the order that you have in place. We know that address, it’s in this locality, and we will go and they took a social services representative, the sheriff, they I mean, they took as many pupils they needed to and they absolutely retrieve those children and return them to my client at on that on that particular day in fact

Scott Cardani 6:19
Yeah. And that’s what happens. The problem is when you don’t know where they’re going, and that becomes a really big problem. And you see the Amber Alerts and things and that’s why it’s really important. You know, it seems like well, it’s just the dad taking his kids, well, there’s probably an order in place where he’s not supposed to be taking the kids and right, something like that. And we run into a lot of that we’ve had a lot of that over our careers. I used to handle this all the time. When I first started, there were so many of these cases that would pop up, I remember being in a court and I don’t say a small variance plus jurisdiction and the judge. I brought up the parental kidnapping Prevention Act. And he goes, What’s that? And I’m like, it’s federal law that determines and he goes, You mean those books up there? He’s I don’t look at those books, basically. And I was like, Oh, we got a problem. But I say that all but you know, eventually he did the right thing. And he, you know, it’s kind of common sense. You don’t get to go to Pennsylvania file a emergency protective order, or emergency custody order and say, I need my kids because something’s happened in Virginia. The problem is all the evidence is in Virginia. If you have a case like that, and say your your kids are in danger, and Dad is abusing her mom, it’s usually mom, right? Moms usually abuse more than dads – you think. But it’s really it’s pretty split isn’t?

Jackie Critzer 7:38
It really is. The surprising aspects of what we hear and think the media glorifies it. When the man does it pushes the narrative that oh, the dads are the abusive ones. But I’ll tell you in practice, I don’t find that to be the case.

Scott Cardani 7:54
Yeah, I find it to be pretty evenly split out. And but the bottom line is, say you’re a parent, and you have very concerns or even valid, you have pictures and all kinds of things. You got to move. And whether you do it by yourself, which is quite frankly, a large process to get down. Because normally to file any petition in the court, you got to get hold of the court service unit, court surface units going to maybe schedule your appointment, they and I’m not saying they can’t do emergencies, but it’s a harder thing to do an emergency, and then say they can’t see you till Thursday. Well, that’s across state lines by Thursday, a week from Thursday. Yeah. So you know, those are things that when you have that situation, you need to, as we say Marshal your resources, get an attorney quickly and get something filed. Because the judge has to move pretty quickly. And if they can move pretty quickly and put an order in place, then they can put out APBs, the Amber Alerts, all those things to try to find your children unless you know where they’re going. But this thing, it’s amazing to me how many people will say this about it too. And I have to say this comes from women more often than men, but you always hear the phrase, they’re my children, I can do what I want with them. And I get the maternal instinct there. But then the truth is the court doesn’t see it that way. And dad has as much of that right as you do. Right. And I don’t know if that’s, you know, some of the abortion law that confuses people in that because as we both know, when, as you are when the baby’s being justated. Oh, I did that right. For the nine months, I don’t have a say, right. But soon as that baby’s born, then my say becomes equal in that moment.

Jackie Critzer 9:38
Whether you’re married or not married to that person to the Father, maybe you’re married to the Father. That happens also? Well, I think it’s important to understand that the parental kidnapping Prevention Act is not about kidnapping. It is about jurisdiction of which court like Scott was saying which court really has jurisdiction over the child or children. And that’s the federal part of it. And Virginia has adopted that under the UCC, J EA uniform Child Custody Jurisdiction and Enforcement Act, and doesn’t have the word kidnapping in it, it’s a little less confusing when you just talk about Child Custody Jurisdiction. But what happens when that you know, the mom or dad has left and the the remaining parent in Virginia? Well, they just kind of drag their feet, well, I thought they were coming back and I didn’t really pursue it. I’ll tell you, if you wait, beyond the six months, you are in the could this state your home state is going to lose jurisdiction. And I don’t mean, six months from a filing date of paperwork, if you file and five months and 15 days, and you don’t have a hearing until after the six month mark, you’re done.

Scott Cardani 10:50
So you’re at least potentially done, you’ve put yourself at tremendous risk. And I would even argue waiting a month and you’re putting yourself at tremendous risk, because what does the court do? They’re gonna come back and say, Well, you were okay with him staying there for a month or two months or six weeks? What’s changed?

Jackie Critzer 11:05
So you might agree, right? Well, well, to Scott’s point, you might end up with jurisdiction in Virginia, but you may not win the argument that custody should come back from the parent who took took the children.

Scott Cardani 11:15
And I think this is really important, and maybe for another podcast, but I think you have to realize too, when you move, it’s not about your best interest, the fact that you got a better job, and you’re making $700,000 now and used to making $50,000, like the, you know, the career change of a lifetime. But they still have to go back and look at why is this move in the child’s best interest? What is the benefit of the child to that move. And you know, some people bring up, you know, I can put my kid in private school now, and what you’re fighting against a judge who represents the county and what’s wrong with my county school, right, you know, and all those things happen. So what we think is parents are phenomenal, I can actually pay for college, and I can do things I never did before. That’s great. But you have to put that in a pretty cogent argument to show why that’s all benefiting the child and why your move is in their best interest. And you know, we’ve won those are both of us have won those arguments are very tough arguments to win, but we want them. And we’ve also lost them because it’s a high, high hurdle, high burden to prove that you’re moved to another state or the other parent. And what happens is the reason this all gets parenting, kidnapping, everything is the other parent loses contact. I mean, today’s you know, we have iPhones and all those things, we can do things but still, physical contact, being able in the same space with your child is really important, I think, all kinds of psychological reasons for that, but we can see how remote learning worked. You know, but sorry. I mean, my point is, you’ve got to be there you got there’s something about physical connection in the same space. And so I think judges here in Virginia, especially are very attuned to that, and they don’t just go oh, well, you get to, you get a video chat on once a week, you’ll be fine. Right? You know, so we got to remember that. So just because you want to move is what we’re trying to get at doesn’t mean you can move, and doesn’t mean the court will grant it. But the opposite is true, too. You may want to move and you may get to move, but the right way to do it makes all the difference in the world.

Jackie Critzer 13:17
Well, it does. And there are exceptions, right? These are the general rules that we’re talking about. And so what happens if it’s an emergency situation, and maybe the children are in danger of the other parent, or that parents in danger, whatever the circumstances is, and I’m not going to say men or women are more in danger, just one parents in danger, the children are in danger. And you’ve got the parent who has the children, and they leave. I have seen and there there are provisions in the code that allow a foreign jurisdiction foreign being not Virginia. So still in the United States, they allow that court to take temporary and emergency jurisdiction to maybe in our protective order to help protect the family members from this crazed other parent. But that court still is required, just like Scott said, they’re required that judge from the outside of Virginia court and the Virginia judge are required to have a meeting by phone or however they want to have a meeting, I guess, and discuss which court really ought to have jurisdiction. And if you can establish that the children or child was in Virginia for the six months prior to that parent, leaving with the children, it’s pretty much going to come back, although there may be a temporary order entered in a foreign jurisdiction.

Scott Cardani 14:30
So one other thing, I think is important what you when you said that really made me think about this, if you’re gonna claim abuse, make sure there’s abuse well, and we have so many clients over the years who claimed it and it it turns out not to be and it was fabricated or somewhat embellished or something. And then when you come to court, and you have that egg on your face, it is not it’s almost an impossible hill to climb at that point to try to restore your good name. I mean, I’ve had people use social services will match. You know, what we see all the time is, is abuse. And we’ll do that another hearing. But you know, some kind of, usually it’s a sexual abuse thing and books. And then there’s no proof, no evidence and somebody kind of backs off, and I just don’t see the courts really taking pleasure in that. And then I think that always hurts you when you go too far.

Jackie Critzer 15:21
And so what happens when the child hasn’t been anywhere for six months, either because the child is one or two or three or four or five months old, right? There’s no jurisdiction, they’re necessarily under the federal or the state provision that six months? Or if maybe that parent has moved around a handful of times, they didn’t stay in one place for very long. How do you have within then who should have jurisdiction?

Scott Cardani 15:49
Yeah, again, it’s that tricky wicket, that’s going to be a judge determination. And the best thing you can do at that point is just file in a jurisdiction. And let the courts determine that because that that does get really cloudy, really fast.

Jackie Critzer 16:01
It does. And it’s addressed a little bit, maybe a lot in the code, too. But it talks about substantial connection. So once God says you got to take it to the judge, because substantial connection could mean a lot of different things. And different attorneys are going to make that argument differently. But you may be where the witnesses are most likely to come from, you know, that that may be a substantial connection, there may be others that need to be considered but your best course of action, if you’re thinking about leaving, call an attorney, if you think your spouse is going to leave, call an attorney, whatever the case may be. And remember that parental kidnapping is really a term of art. That does not mean in fact, kidnapping. It just doesn’t.

Scott Cardani 16:43
I think that’s really important. Because what we sometimes do is we ramp up the conversation, when people start to hear kidnapping, and I hear it all the time. I didn’t kidnap anybody, they’re my kids, you’re right. But just remember, there are ways to kidnap your own kids. There are laws against you violating a court order to the extent where it becomes kidnapping. But for the general and for the general public. Most people don’t understand what they mean when they say that. And that’s usually an angry parent going like You’ve kidnapped my kids because they’ve been denied access. And being denied access doesn’t necessarily mean kidnapping. But when you deny another parent access, you better have a damn good reason because it will come back to haunt you. And this whole thing of my child, remember to have you made the child and once that child’s there, you both are equal, until a judge makes a ruling. So Jackie, what we wind up with today?

Jackie Critzer 17:34
Well, let’s start with parental kidnapping doesn’t actually mean parental kidnapping. From the Federal standpoint, in the parental kidnapping Prevention Act, or the UCC, ja the Virginia version of that, or adoption of that of that language, it doesn’t mean kidnapping from the, you know, I went to Scott’s house and and you know, under the cover of darkness, I took one of his children and ran away that’s kidnapping. They’re not one of my children. But if I’ve taken my own children across state lines, and we’re maybe we’re on an RV tour, and I just happen to not tell the children’s father Well, that’s not necessarily parental kidnapping. And so to that end, be careful how you use the term parental kidnapping, it doesn’t mean exactly what it sounds like it means. So the second thing there, go ahead, okay. Your First Avenue, if whether whether you there’s an order in place, or there’s not an order in place, your first step is to call an attorney. Okay. And if there’s an order in place, then it’s not parental kidnapping. The first step is contempt of court. And then the the the long arm jurisdiction and the far reaches of the Virginia court, assuming there’s already jurisdiction here, and a court order has already been entered here. And that’s where you start, you seek assistance from that judge and that court to try and enforce the order from that court. And then finally…

Scott Cardani 18:56
The bottom line is what we’re really trying to say here. And what’s most important is, these are very complex and tough issues for families to deal with, especially as one parents denying access or literally kidnapping. You need help to navigate this water. We’re here to help you. There’s very many other family law attorneys who are out there who are very competent and able to help you but you need to get the help immediately. Do not sit on these issues. Do not wait. The longer you sit and the longer you wait contemplating your position diminishes as you wait. Move Quickly.

Jackie Critzer 19:31
In All aspects. So – awesome day today. Thank you for listening to What To Do When… a podcast here at Critzer Cardani in Richmond, Virginia. We look forward to seeing you again and in our future episodes.

Scott Cardani 19:43
Like and share.

Jackie Critzer 19:44
Thanks.

Scott Cardani 19:45
Thanks.

What To Do When… Outro 19:37
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