A custody dispute can be scary. One parent is literally trying to keep the child away from the other parent. There is a whole system for deciding which parent will have the child at what time but what happens when one parents opts out that system and simply takes the child when they want, without permission? Where does a custody dispute end and a kidnapping begin in Illinois? Can you kidnap your own child in Illinois?
Kidnapping Is A Crime In Illinois
Kidnapping is a crime in Illinois but we need to look exactly at what the statute says.
In Illinois “[k]idnapping occurs when a person knowingly:
(1) And secretly confines another against his will, or
(2) By force or threat of imminent force carries another from one place to another with intent secretly to confine him against his will, or
(3) By deceit or enticement induces another to go from one place to another with intent secretly to confine him against his will.
(b) Confinement of a child under the age of 13 years is against his will within the meaning of this Section if such confinement is without the consent of his parent or legal guardian.” 720 ILCS 5/10‑1
That last paragraph essentially tells us that you cannot commit the crime of kidnapping if it is your own child. The parenting agreement may not grant one parent time with the child but if the parent just stopped by the school and took the child…that parent WOULD have the consent of one parent, THEMSELVES! This applies even if that parent doesn’t have parenting time.
Illinois courts have held that absentee fathers with no relationship to their children who simply show up one day and take the child cannot be guilty of kidnapping or even aggravated kidnapping (where you use a weapon or a mask). People v. Algarin, 558 NE 2d 457 – Ill: Appellate Court, 1st Dist. 1990
Kidnapping is a class 2 felony in Illinois. That’s three to seven years in prison.
There is however a class 4 felony that parents who do things like kidnapping can be guilty of. Child Abuction is essentially “kidnapping by a parent.” Child abduction is a class 4 felony in Illinois (1 to 3 years in prison).
Child Abduction In Illinois
“A person commits the offense of child abduction when he or she does any one of the following:
(1) Intentionally violates any terms of a valid court order granting sole or joint custody, care, or possession to another by concealing or detaining the child or removing the child from the jurisdiction of the court.
(2) Intentionally violates a court order prohibiting the person from concealing or detaining the child or removing the child from the jurisdiction of the court.
(3) Intentionally conceals, detains, or removes the child without the consent of the mother or lawful custodian of the child if the person is a putative father and either: (A) the paternity of the child has not been legally established or (B) the paternity of the child has been legally established but no orders relating to custody have been entered. Notwithstanding the presumption created by paragraph (3) of subsection (a), however, a mother commits child abduction when she intentionally conceals or removes a child, whom she has abandoned or relinquished custody of, from an unadjudicated father who has provided sole ongoing care and custody of the child in her absence.
(4) Intentionally conceals or removes the child from a parent after filing a petition or being served with process in an action affecting marriage or paternity but prior to the issuance of a temporary or final order determining custody.
(5) At the expiration of visitation rights outside the State, intentionally fails or refuses to return or impedes the return of the child to the lawful custodian in Illinois.
(6) Being a parent of the child, and if the parents of that child are or have been married and there has been no court order of custody, knowingly conceals the child for 15 days, and fails to make reasonable attempts within the 15-day period to notify the other parent as to the specific whereabouts of the child, including a means by which to contact the child, or to arrange reasonable visitation or contact with the child. It is not a violation of this Section for a person fleeing domestic violence to take the child with him or her to housing provided by a domestic violence program.
(7) Being a parent of the child, and if the parents of the child are or have been married and there has been no court order of custody, knowingly conceals, detains, or removes the child with physical force or threat of physical force.” 720 ILCS 5/10-5(b)
This may seem like strong language that is unenforceable until you read the definition of “detained” in the statute.
““Detains” means taking or retaining physical custody of a child, whether or not the child resists or objects”. 720 ILCS 5/10-5(a)(2)
With a definition that broad, that means everything is a child abduction case. Keeping a child late on a visitation in Illinois is technically a felony.
Like all laws where everyone can be guilty, practically no one will ever actually be found guilty.
Honestly, what good is it to put a parent in jail? There are other ways to enforce a custody order that don’t involve a minimum of one year in jail (although jail can still be on the table).
Part of the reason that almost no one gets prosecuted for child abduction in Illinois is that the statute contains a “get out of jail free” card at the end for parents.
It is a defense to a child abduction charge if “the person had custody of the child pursuant to a court order granting legal custody or visitation rights that existed at the time of the alleged violation;
(2) the person had physical custody of the child pursuant to a court order granting legal custody or visitation rights and failed to return the child as a result of circumstances beyond his or her control, and the person notified and disclosed to the other parent or legal custodian the specific whereabouts of the child and a means by which the child could be contacted or made a reasonable attempt to notify the other parent or lawful custodian of the child of those circumstances and made the disclosure within 24 hours after the visitation period had expired and returned the child as soon as possible;” 720 ILCS 5/10-5(b)
There are very few crimes that suddenly don’t become crimes “if you had a good reason.” Child abduction cases just don’t get prosecuted in Illinois.
What You Should Actually Do If Your Ex Kidnaps Your Child
Kidnapping is a powerful word. The best way to get your child back is to avoid the word “kidnapping” altogether and just point out that the other parent isn’t following the orders.
This is actually a very powerful legal maneuver in Illinois family law courts. By filing a Petition for Rule To Show Cause (And Adjudication on Indirect Civil Contempt) you are asking the court to hold the other parent in contempt and to enforce the order.
The alleged order violator then has to prove they didn’t willfully violate the order after even just some showing that the order was violated (usually just a signed affidavit attached to the Petition for rule). So, the order violator has to do all the work or they will be held in contempt of court.
If the order violator is found in contempt of court, the court can order that they comply with the order and, if not, be put in jail.
Furthermore, the order violator will have to pay your attorney’s fees.
“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney’s fees of the prevailing party.” 750 ILCS 5/508(b)
Also, after an egregious order violation, you can immediately request that the violator’s parenting time be restricted or even terminated.
“After a hearing, if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development, the court shall enter orders as necessary to protect the child.” 750 ILCS 5/603.10(a)
Those orders can include “a reduction, elimination, or other adjustment of the parent’s decision-making responsibilities or parenting time, or both decision-making responsibilities and parenting time” 750 ILCS 5/603.10(a)(1)
If the parent truly will not return the child, you may apply for a warrant to have the police take physical custody of the child from that parent.
“Upon the filing of a petition seeking enforcement of a child-custody determination, the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child if the child is immediately likely to suffer serious physical harm or be removed from this State.” 750 ILCS 36/311
Threatening Criminal Charges In An Illinois Divorce
When you know a criminal charge exists, it may be tempting to threaten criminal charges like kidnapping or child abduction in order to get the other parent to settle the matter.
This is absolutely prohibited under the Illinois Professional Rules Of Conduct which govern the behavior of attorneys in Illinois.
“It is professional misconduct for a lawyer to: (g) present, participate in presenting, or threaten to present criminal or professional disciplinary charges to obtain an advantage in a civil matter.” Rule 8.4(g) of the Illinois Rules of Professional Conduct
If you want something because the other parent kidnapped, adbucted or kept your child, the parents actions alone should be enough for the court to modify that parent’s parenting time.
Kidnapping A Child And Taking The Child To Another Country
Kidnapping a child is a parent’s worst nightmare but there’s a lot that can be done in Illinois and throughout the rest of the United States. The only time when nothing can be done is when a parent kidnaps a child and leaves to another country.
Most countries have methods for returning children via the Hague Convention. But even then, you have to interact through that country’s court system.
Other countries, such as India, will not recognize an American court order as to children and there is nothing that can be done.
So, do not let your ex have your child’s passport if you fear a kidnapping. You can ask the court to have a third party hold the passport.
Contact the state department to ensure the state department does not issue a passport for your child to anyone outside of yourself. The State Department’s Child Passport Issuance Alert Program (CPIAP) requires the State Department to contact both parents if either parent applies for a passport for the child.
If you’re worried your ex will kidnap your child or you’re worried you’ll be accused of kidnapping your child, contact my Chicago, Illinois family law firm to talk with an experienced Chicago divorce lawyer.