You & the Law I

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You & the Law II

Child Custody

Q. Can my ex-husband take my son out of state without my permission?

A. Kidnapping, in criminal law, offense involving taking and conveying away a person against his or her will, either by force, fraud, or intimidation. Originally the word applied only to the abduction of children, but early in English law it was employed to designate the same offense with regard to adults. Formerly, in common law, the offense of kidnapping was confined to the taking of persons from their own to another country, but such a restriction does not exist in the common law today.

In most of the U.S. the crime of kidnapping is defined by statute. Merely enticing a competent adult away is not sufficient to constitute the crime. The crime can only exist when an abduction is carried out against the will of the person, either actually or constructively. For example, inducing a laborer to go to a distant place to work, by holding out extravagant promises that the employer does not intend to fulfill, does not come within the scope of this crime; but getting a sailor intoxicated and taking him aboard a strange ship, with design to detain him until the vessel is under way, and then to persuade or coerce him to serve as a seaman, has been held to constitute kidnapping.

Kidnapping is also committed if the consent to such removal is induced by fraud, or if the victim is legally incompetent to give a valid consent, as in the case of a young child or of a feeble-minded person. The essential elements of kidnapping and of false imprisonment are about the same, except that the former includes, in addition to a detention, the act of carrying away the victim to another place, usually for the purpose of avoiding discovery.

The penalty for kidnapping is generally severe in the U.S. and most states also make it a crime to attempt or conspire to commit a kidnapping. A federal law, popularly known as the Lindbergh Act, which was enacted in 1932 after the kidnapping of the child of the American aviator Charles Lindbergh, makes it a federal crime, punishable by life imprisonment, to kidnap a person and transport that person to another state. This law was amended in 1934 making conspiracy to commit a kidnapping also a federal crime. In 1968 the U.S. Supreme Court invalidated that section of the Lindbergh Act that gave the jury the power to recommend the death penalty for kidnapping.

A person legally entrusted with the custody of another may not, of course, be guilty of kidnapping his or her own child if custody of the child has been given to another by court order or decree. When the parents have separated without legal decree, one may take the child from the other even by trick or deception, without committing the offense of kidnapping.