The very short answer is: yes. If you take a child contrary to a custody order, then theoretically, you have kidnapped the child — even if you are the parent of that child.
Here in Colorado, we see this kind of thing fairly regularly. I get Amber alerts on my cellphone that say, “Mother has the child but does not have custody, contact the authorities immediately.” Essentially, this means that the mother has taken the child even though the Court Order provides that the father should have the child at this time, or she has taken the child out of state against the custody order.
So, even though the child is with his or her mother… this child is kidnapped. The Court may not call it “kidnapping”; instead it may be called a “violation of a custody order,” but it’s the same thing. The mother has committed a crime and also could be held in contempt of Court.
A Real-Life Example
Several years ago, a child in Evergreen, Colorado, went missing. This child’s parents had never been married, and there were no Court orders with regards to custody, meaning that the parents didn’t have any official documentation in place as to who would care for the child when.
Eventually, the child turned up safe in Arizona with her biological father. His explanation was that he missed his daughter and the mother wouldn’t let him visit her. Since there was no formal parenting agreement, and even though he had taken the child without the knowledge of the mother, he was never charged with a crime because he was the biological father. His name was on the child’s birth certificate.
In the end, the authorities took the child from the father and returned her to the mother. I’ve always wondered, since there was no custody order in place, how the police had the authority to take the girl from the father. As a parent, he should have had equal rights, even though the child had been raised primarily by the mother. I suspect he acquiesced under threat of charges.
The Four Preliminary Injunctions
In Colorado, there are four preliminary injunctions that kick in as soon as a couple files for divorce. These are rules that prevent the spouses from doing anything in the interim period between when the couple files paperwork, and when it is finalized. They are:
- Do not take minor children out of state without either the other party’s permission or a Court order.
- Do not do anything extraordinary with marital finances.
- Do not disturb the peace of the other party.
- Do not change any insurance coverage.
Read more about these injunctions in a previous blog post.
You’ll notice that the first preliminary injunction has to do with keeping the kids in state. If you violate this injunction, and take kids out of state without the permission of the other party or a Court order, you could face some major consequences.
When Can You Take the Kids?
Every situation is different, of course, but as a general rule, if you don’t have any prohibitions in your Court orders (such as a parenting plan), then you can take the child wherever you want as long as it is your child. There may be exceptions if you want to leave the country (airlines won’t take a minor out of the country unless there is documentation reciting that both parents agree that it is okay for the child to fly).
When I draft parenting agreements, we put it a lot of language around being reasonable. In other words, we don’t want one party to unreasonably prevent the other party from traveling with the children when it is a safe and healthy thing to do. I have had parents refuse to allow their children to be taken to Israel and even Canada.
Parenting agreements can be complicated, but they’re very important: when done correctly and with plenty of detail, you will have a much smoother experience of co-parenting with your former spouse. If you are preparing for divorce, call us at 303-449-1873 to set up a complimentary consultation.