Understanding Child Abduction: Cases, Penalties, and Preventive Measures Explained

The crime of child abduction is not a common crime. But in recent years it has been in the news on several occasions. Although it is less frequent, we can also see it referred to as the crime of child kidnapping.

In this article we are going to explain to you in which cases the crime of child abduction exists, what penalties it entails, and how to act.

What are the cases in which we can say that we are facing a crime of child abduction?

Child abduction as a crime

On some occasions we hear that a father or mother has retained their minor child and it is important to know that the abduction of a minor is a crime classified in Model Penal Code (MPC)  .

3 Cases of child abduction

We can talk about child abduction in three different cases:

1. Transfer of a minor from his or her place of residence without the consent of the custodial parent

If the non-custodial parent moves the residence of the minor without the consent of the parent who usually lives with him , he incurs a crime.

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Therefore, there is a difference for punitive purposes (punishment) between the custodial and non-custodial parent.

Now, this does not mean that the custodial parent can unilaterally decide on the change of residence of the minor.

This decision must always be made in the best interests of the minor .

When the custodial parent (for example, the mother) wants to change residences with the minor , the non-custodial parent (for example, the father) will have to give their consent .

If the father objects, the mother who has custody will have to request judicial authorization for the change of residence.

However, if the mother decides to act on her own without the consent of the non-custodial father, he may resort to judicial means to protect the interest of the minor taken from his environment.

2. Retention of a minor for longer than established by court resolution

When the non-custodial parent retains the minor for more time than stipulated in the visitation and stay regime . Even going as far as not returning it to the custodial parent .

Now, if from the circumstances of the case it can be deduced that the parent’s intention is to return the minor within a reasonable period, there will be no crime of child abduction .

In these two cases of child abduction, the following are active subjects of the crime:

  • The non-custodial parent (father or mother). That is, the parent who has a visitation regime judicially recognized.
  • The minor’s ancestors (grandparents).
  • Other relatives of the parent up to the second degree of consanguinity (siblings) or affinity (brothers-in-law).

3. Special case of child abduction

It is the so-called international child abduction.

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This case of abduction of a minor occurs in the following cases:

  • Displacement : When a minor is transferred without authorization to a country other than the one in which the minor habitually resides.
  • Retention : When the custodial parent moves to live in another country, preventing the non-custodial parent from exercising their right of visitation (retention).

In international child abduction, the active subjects of the crime can be:

  • The custodial parent.
  • The non-custodial parent.
  • The minor’s ancestors (grandparents).
  • Other relatives of the parent up to the second degree of consanguinity (siblings) or affinity (brothers-in-law).

Consequences of child abduction

In the first two cases, the parent or relative who, without just cause, abducts a minor will be punished with:

  • Prison sentence of 2 to 4 years.
  • Special disqualification for the exercise of the right of parental authority for a period of 4 to 10 years .

When the minor is transferred outside of USA or any condition is required for his or her return, the following will be imposed:

  • Prison sentence of 3 to 4 years .
  • Special disqualification for the exercise of the right of parental authority for a period of 7 to 10 years .

Measures to prevent child abduction

The family Code establishes a series of measures in the event that there is a risk of abduction of a minor.

It will be the Judge who determines the adoption of these measures.

At what point can the adoption of these measures be requested ? If there is a risk of child abduction:

  1. Before filing the request for separation or divorce , as very provisional measures.
  2. Once the request for divorce or separation is admitted , as provisional measures .
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