In Maryland — as in most states — it is a crime for a parent to kidnap or abduct their own children. Most often, parental kidnapping/abduction is related to a divorce, domestic violence or some other sort of dispute between the parents. Kidnapping/abduction by third parties is also a crime in Maryland. However, this article will focus on the elements and potential defenses to parental kidnapping. Generally speaking, kidnapping refers to an unlawful seizing and/or carrying away of a person without the consent of one person by another.

In Maryland, the crime of parental kidnapping/abduction — Md. Fam. Law Code, §9–304 and §9–305(a) and (b) — involves proof of the following legal criminal elements:

• The accused must be a relative of the child
• The child must be under the age of 16
• The accused must know that another person is the “lawful custodian” of the child
• The accused must have the intent to deprive the lawful custodian of the custody of the child
• The accused must also have the intent to do one of the following:
  • To abduct, take, or carry away the child from the lawful custodian to another place OR
  • Having acquired lawful possession of the child, detain the child within for more than 48 hours after the lawful custodian demands that the child be returned OR
  • Harbor or hide the child, knowing that possession of the child was obtained by another relative in violation of this section OR
  • Act as an accessory to any of the above.

Note that “parental kidnapping” is not limited to a child’s parents. The statute is clear that other “relatives” can be charged.

If convicted, a person faces various punishments depending on where the child was taken and how long the child has been out of the possession of the lawful custodian. Section 9–304 deals with parental kidnapping, where the child is taken to a place within Maryland. If that statutory section is violated (regardless of how long the child has been retained), the punishment can be a fine not exceeding $250 or imprisonment not exceeding 30 days. Violation is considered a misdemeanor.

Section 9–305(a) deals with a situation where the child is taken across State lines (but still taken to a place with the U.S.). If that statutory section is violated and if the child has been out of the custody of the lawful custodian for less than 30 days, the punishments can be a fine not exceeding $1,000 or imprisonment not exceeding one year, or both. The crime is considered a felony. If the child has been out of custody for 30 days or more, the punishments can be a fine not exceeding $2,500 or imprisonment not exceeding three years, or both. The crime is also considered a felony.

Section 9–305(b) deals with a situation where the child is taken out of the United States. If that statutory section is violated, the punishments can be a fine not exceeding $5,000 or imprisonment not exceeding five years or both. The crime is also considered a felony.

An absolute defense if certain procedures are followed

Section 3-906 provides a mechanism that covers what a relative might believe to be an emergency situation. A charge of parental kidnapping can defeated if the parent can show that there was a “clear and present danger to the health, safety, or welfare of the child.” To be valid as a legal criminal defense, the relative taking the child must, within 96 hours (four days), file a written petition in the proper Maryland county court. The petition, in effect, admits to the taking of the child but states that there was a clear and present danger for the particular reasons. The petition must also ask to revise, amend, or clarify a relevant custody order.

Contact Waldorf, Maryland Criminal Defense Lawyer Robert Castro Today

This article has been provided by the Law Office of Robert Castro. For more information or questions, contact our office to speak to an experienced Maryland criminal defense lawyer at (301) 870-1200. We are Waldorf, MD, Criminal Defense lawyers. Our address is 2670 Crain Highway, Waldorf, MD 20601.