Contrary to the prevailing “stranger danger” narrative, nearly all missing children are actually victims of parental kidnapping. Parental kidnapping occurs when a non-custodial parent takes a child without the custodial parent’s knowledge or consent.
This may seem reassuring, but it shouldn’t. Abduction by a parent can pose a significant risk to a child’s safety and well-being. Additionally, parental kidnapping frequently points to a larger dynamic of domestic violence. Abusers will go to great lengths to exert control over their partners — even if it means harming their own child.
Read this article to learn about the warning signs of parental kidnapping, the options available to you if your ex has kidnapped your child, and the criminal penalties you could face if you are accused of unlawfully taking your child.
Talk to a Parental Kidnapping Attorney Today
If your co-parent has kidnapped your child, the first thing you should do is call the police. Next, immediately contact a family law attorney familiar with Colorado parental kidnapping laws. The child custody attorneys at Robinson & Henry PC will act swiftly to get your child home safely and help ensure your ex can never put either of you at risk again. Call 303-688-0944 today to begin your free case assessment.
What is Parental Kidnapping?
Essentially, parental kidnapping is the crime of knowingly taking a child away from a person who has lawful custody of him or her. Colorado Revised Statute § 18-3-304 provides that:
“any person, including a natural or foster parent, who, knowing that he or she has no privilege to do so or heedless in that regard, takes or entices any child under the age of eighteen years from the custody or care of the child’s parents, guardian, or other lawful custodian or person with parental responsibilities with respect to the child commits a class 5 felony.”
Colorado Parental Kidnapping Laws
The Uniform Child Custody Jurisdiction and Enforcement Act is a uniform state law requiring state courts to enforce valid child custody and visitation determinations made by sister state courts. All U.S. states except Massachusetts have adopted some form of the UCCJEA.
The UCCJEA sets exclusive and continuing jurisdiction for child custody issues in the child’s home state. That means, if your ex-spouse kidnaps your children and takes them to a different state, Colorado law will still dictate what happens.
Exclusive Continuing Jurisdiction
Once a Colorado court has issued a child custody order, the state retains exclusive jurisdiction to modify the order until:
- a Colorado court has determined that neither the child, the parents, nor a person acting as a parent has a significant connection to the state, and substantial evidence pertaining to the child is no longer available in Colorado. C.R.S. 14-13-202(1)(a)– OR –
- a court in Colorado or another state determines that the child, parents, and any person acting as a parent do not presently reside in Colorado. C.R.S. 14-13-202(1)(b)
How Do I Prove Parental Kidnapping?
To prove that your ex kidnapped your child, you must show:
- your ex took your child out of Colorado in violation of a court order or without your consent, or
- your ex wrongfully retained the child when he or she was supposed to return him or her to you.
The court will also consider other factors, such as:
- how long the child has been missing
- if the alleged abductor expressed an intent to keep the child
- whether the custodial parent knew the child’s whereabouts
You Need a Formal Custody Order
Colorado law holds that every parent has a fundamental right to the care, custody, and control of their child. Legal custody can only be taken away from a parent by order of the court. C.R.S. § 19-1-103(73)(a) (2019)
Without such an order, parents share unrestricted custodial rights. So without a custody order, a parent generally may not be convicted of kidnapping his or her own child.
While some states have legislated otherwise, Colorado has only directly addressed parental kidnapping in its violation of custody order statute. People v. Pratarelli, 2020 COA 33, ¶ 1, 471 P.3d 1177, 1179
A Colorado Court Overturns a Father’s Parental Kidnapping Conviction Due to No Custody Order
In Armendariz v. People, a Larimer County jury convicted Baldemar Armendariz of second-degree kidnapping after he broke into his estranged wife’s apartment, struck her, and left with their infant son.
Armendariz appealed the court’s decision, arguing that no official custody order was in place at the time of the incident. The Colorado Supreme Court agreed and overturned his conviction:
“In the absence of a court order granting legal or physical custody to the child’s mother, the defendant shared an equal right to the custody of the child. Under these circumstances, it was impossible for the prosecution to show that the defendant seized Baldemar, Jr. ‘without his consent’ for purposes of the second-degree kidnapping statute.”
Armendariz v. People, 711 P.2d 1268, 1270 (Colo. 1986)
Temporary Custody Orders
Colorado courts have held that state law does not differentiate between permanent and temporary custody orders. This means that violating a temporary custody order could constitute parental kidnapping under Colorado law.
In People v. Sorrendino, Joseph Sorrendino removed his 2-year-old son from Colorado and took him to Tennessee. In doing so, he violated a temporary restraining order that awarded care and control to the child’s mother.
Sorrendino was convicted of violating a custody order, a class 5 felony. He was sentenced to three years in prison.
Sorrendino appealed his conviction. He argued that the temporary court order did not qualify as a “custody order” under Colorado law. A Colorado appeals court disagreed and upheld Sorrendino’s conviction:
“Even temporary custodial rights ought to find protection under the statute; otherwise, parents would have an incentive, as here, to abduct their children during the pendency of permanent custody proceedings.”
People v. Sorrendino, 37 P.3d 501, 504 (Colo. App. 2001)
Your Legal Options if Your Ex Takes Your Child
If you believe your ex has willfully violated a custody order, your attorney can file a contempt of court petition. This could mean fines or prison time for your ex. You could also request the court to modify the custody order, stipulate supervised parenting time, and award you attorney’s fees.
Penalties for a Parental Kidnapping Conviction
In most cases, parental kidnapping is a class 5 felony in Colorado. Convictions carry a sentence of one to three years in prison and at least $1,000 in fines.
How to Defend a Parental Kidnapping Charge
If you’ve been accused of parental kidnapping, it’s important to know that Colorado law allows for two affirmative defenses to parental kidnapping:
- The non-custodial parent reasonably believed that his or her conduct was necessary to protect the child’s well-being.
- The child is at least 14 years old and was taken at his or her own request. C.R.S. 18-3-304
Talk to a Parental Kidnapping Attorney
Parental kidnapping is a serious offense. Not only does it create an emotional strain for the custodial parent, it can have long-lasting psychological consequences for the child. If your children are the victims of parental kidnapping, the family law attorneys at Robinson & Henry will use every available resource to see them safely returned to you. Call 303-688-0944 today to begin your free case assessment.