We live in an increasingly mobile society, and many parents today are raising their children in a different city, state or country from where one or both of the parties grew up. When a marriage breaks down and divorce is imminent, there is sometimes concern that the other parent may leave the state or even the country with the child.
Although both federal and state laws protect against parental kidnapping, the Massachusetts Supreme Judicial Court has ruled that the state statute “does not criminalize the act of a parent taking his or her children out of the Commonwealth permanently or for a prolonged period in cases in which no court proceeding or custody order exists”. This means that until and unless a Court enters formal orders regarding physical custody, parents who are married have equal access to their children under the law, and it is not a crime for either parent to take the children across state or international borders.
If a parent has wrongfully removed a child from the state or country, it is essential that the left-behind parent seek orders from the Court awarding him or her physical custody. This will allow the left-behind parent to work with authorities to secure the safe return of the child. Under such circumstances, courts will usually enter temporary custody awards on an emergency basis.
Once the left-behind parent has been awarded physical custody, the parent who has wrongfully removed the children will be subject to criminal penalties if he or she refuses to return the children. Massachusetts state law provides “Whoever, being a relative of a child less than eighteen years old, without lawful authority, holds or intends to hold such a child permanently or for a protracted period, or takes or entices such a child from his lawful custodian, or takes or entices from lawful custody any incompetent person or other person entrusted by authority of law to the custody of another person or institution shall be punished by imprisonment in the house of correction for not more than one year or by a fine of up to one thousand dollars, or both.” Further, the federal Parental Kidnapping Crime Act makes it a federal crime, subject to up to three years imprisonment, to remove a child from the United States or to retain a child outside the United States when the child has been in the United States with the “intent to obstruct the lawful exercise of parental rights.”