The most difficult and contentious area of any divorce is determining custody. There are countless factors that go into determining custody, and agreements can be amended and changed over time. One situation that, while not common, comes up due to custody agreements is parental kidnapping. Kidnapping is often seen through the lens of dramatized television, as a violent act with dire motivation. The truth is, there are numerous layers to what is considered kidnapping, and it’s something every parent needs to keep in mind if they share custody of their child.
Georgia code § 16-5-40 defines kidnapping as “interference with custody,” which, in cases of shared custody, involves going beyond the bounds of the court dictated agreement without mutual understanding between both parents. Interfering means knowingly or recklessly taking a child from a legal custodian, or intentionally keeps the child beyond the period they are supposed to have custody.
Due to the understandably strict elements that define “kidnapping” in Georgia, it can be difficult to understand. Kidnapping is often considered holding someone against their will, and while that can apply in parental kidnapping cases, even if the child requests to stay with the offending parent, kidnapping charges still apply. A parent that “isolates the victim, makes the commission of the other violation comparatively easier, [or] lessens the risk of detection” could be found guilty of kidnapping, even if the child is voluntarily with them.
As per the parental kidnapping laws in Georgia, an offending parent may be punished by:
- Imprisonment till 20 years if the kidnapping involves a victim aged 14 or more
- Imprisonment for life or by a split sentence till 25 years followed by probation for life, if the kidnapping involves a victim who is less than 14 years of age
- Life imprisonment or death if the kidnapping was for ransom
- Life imprisonment or death if the person kidnapped received physical injury
While the laws regarding parental kidnapping are strict, there are situations that allow for a parent to keep custody of a child outside a previous arrangement. If a parent is protecting a child from imminent harm, be it physical violence, a dangerous living situation such as drug abuse by someone in the home, or a physically unhealthy situation, then kidnapping charges likely will not apply. However, these situations are not common, and it’s important to speak to an attorney or law enforcement first, if possible, to assure you are acting within the bounds of the law. Requesting a change to a custody agreement is always a viable, and legal, option as well, one that is often the safest and healthiest way to change circumstances for the child.
If you need help crafting or amending a custody agreement, or face parental kidnapping charges, we can help. Family Law Attorneys Patrick McDonough and Trinity Hundredmark at Andersen, Tate & Carr have combined experience of more than 30 years representing clients during cases involving child custody and visitation in Georgia.
For more information, or to request a case evaluation, call our law office at (770) 822-0900.
We have been very successful at reaching the best possible outcome for our clients, and our attorneys are here to help you through this difficult and stressful time.
Patrick J. McDonough leads the criminal defense division for Andersen, Tate & Carr, and is among the most sought after criminal defense attorneys in the state of Georgia. He has received national attention from the news media ...
Trinity Hundredmark heads the domestic relations division for Andersen, Tate, & Carr, P.C., while also working within the criminal practice division. She is considered a leader in the southeast in both family and criminal law ...
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