I have often read about kidnapping charges being brought against a non-custodial parent during divorce or against an individual when a teenager runs away from home with their respective boyfriends or girlfriends.
In criminal law, are the wishes of a minor typically taken into account or are they not considered at all until they reach the age of 18? Would non-violent incidents like this even be considered kidnapping at all in the court of law?
The child's will or consent is relevant to a plain kidnapping charge. The child's will or consent is not relevant to abduction charges.
This answer presents Canadian law for this body of offences, divided based on who is doing the taking (because of the specific offences created for abduction by a parent).
In Canada, a parent or guardian taking a child from the other parent implicates sections 279, 280, 282, and 283 of the Criminal Code.
If the child is held against their will, this supports the offence of plain kidnapping under s. 279. This is an indictable offence (the higher of two categories of offences in Canada). Very young children will not possess the capacity to consent. Older children, even those younger than 14, may be capable of consent (see the discussion at paragraphs 401-417 of R. v. Al Aazawi, 2021 ABPC 155).
If the child taken is under 16, the offence of abduction (not necessarily by a parent or guardian) of a person under 16 is available (s. 280). For this offence, the consent of the child is not relevant (explicitly stated at s. 286). It is considered an offence against the parent or guardian.
If the taking is by a parent or guardian of a child under 14, then this supports an offence under s. 282 (abduction by a parent in contravention of custody or parenting order) or s. 283 (abduction by a parent in the absence of a custody or parenting order). Again, under these offences, the consent of the child is irrelevant (explicitly stated at s. 286).
Sections 280, 282, and 283 create hybrid offences, punishable either by indictment (higher category of offence) or as a summary offence (lower category of offence).
Often the age and circumstances of the taking may support multiple overlapping charges. See e.g. M.M. v. United States of America, 2015 SCC 62. That was an extradition case in which the corresponding Canadian charges were both s. 280 (abduction—by anyone—of a person under 16) and s. 282 (abduction by a parent in contravention of a custody or parenting order).
Prosecution directives for this family of offences is available. E.g.:
The same plain kidnapping offence will be available (s. 279) as will the offence of abducting a person under 16 (s. 280). However, there is an additional offence of abduction of a child under 14 (s. 281), also a hybrid offence.
Again, the consent of the taken person is not relevant for the abduction offences (see s. 286), and the circumstances that give rise to an abduction offence are broader when the taken person is under 14 than when the taken person is merely under 16. A comparison of the elements of these two closely related offences can be found at paragraphs 17-24 of R. v. Gibson, 2018 BCSC 1869.
| Age of child | Person taking | Section |
|---|---|---|
| < 14 | parent/guardian | s. 279 (if against will), s. 280 (general abduction), ss. 282, 283 (abduction by parent) |
| < 14 | non-parent/non-guardian | s. 279 (if against will), s. 280 (general abduction), s. 281 (abduction by non-parent) |
| < 16 | anyone | s. 279 (if against will), s. 280 (general abduction) |
| any age | anyone | s. 279 (if against will) |
Section 285 provides:
No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminent harm or if the person charged with the offence was escaping from danger of imminent harm.
This is covered by a separate and less-severe criminal law, unlawful harboring of a minor. The basic element of the crime is
if the person provides shelter to a minor without the consent of a parent of the minor and after the person knows that the minor is away from the home of the parent, without the parent's permission
but with the further requirement that
the person intentionally... fails to release the minor to a law enforcement officer after being requested to do so by the officer; or (ii) Fails to disclose the location of the minor to a law enforcement officer after being requested to do so by the officer, if the person knows the location of the minor and had either taken the minor to that location or had assisted the minor in reaching that location; or (iii) Obstructs a law enforcement officer from taking the minor into custody; or (iv) Assists the minor in avoiding or attempting to avoid the custody of the law enforcement officer.
Violation of this law is punishable as a gross misdemeanor.
The following section, RCW 13.32A.082 requires that
any person... that, without legal authorization, provides shelter to a minor and that knows at the time of providing the shelter that the minor is away from a lawfully prescribed residence or home without parental permission, shall promptly report the location of the child to the parent, the law enforcement agency of the jurisdiction in which the person lives, or the department.
There is no penalty attached to non-compliance with this requirement. Compliance with the notification requirement immunizes you against civil liability for damages arising from providing shelter, which you don't get if you don't provide notice.
Kidnapping, on the other hand, is at best a class B felony (if found to be second degree kidnapping). Unauthorized parental abduction (by non-custodial parent) is probably covered as custodial interference which is a class 2 felony. The wishes of the child carry no weight, except insofar as a child's wishes might tip the scales in favor of a change in the custody order, but such a change would have to precede the parent taking custody of the child.
Since the question is tagged united-states, criminal-law and not any other jurisdiction, the federal criminal laws on kidnapping are 18 USC chapter 55. As others have mentioned, each state has its own kidnapping laws as well.
Taking or keeping the child out of the United States, even willingly, could be a violation of 18 U.S. Code § 1204, International parental kidnapping:
Whoever removes a child from the United States, or attempts to do so, or retains a child (who has been in the United States) outside the United States with intent to obstruct the lawful exercise of parental rights [....]
There are several affirmative defenses, including:
the defendant acted within the provisions of a valid court order granting the defendant legal custody or visitation rights
the defendant was fleeing an incidence or pattern of domestic violence
the defendant had physical custody of the child pursuant to a court order [...] and failed to return the child as a result of circumstances beyond the defendant’s control, and the defendant notified or made reasonable attempts to notify the other parent or lawful custodian of the child of such circumstances within 24 hours after the visitation period had expired and returned the child as soon as possible.
Additionally, the federal kidnapping statute, 18 U.S. Code § 1201, applies to someone who “inveigles” or “decoys” a victim. The courts have upheld federal convictions for kidnapping of people who tricked children into entering their car willingly, such as in United States v. Hughes (4th Cir. 1983), and even “when a victim, acting because of false pretenses initiated at the instance of the defendant, transports himself across state lines without accompaniment by the alleged perpetrator or an accomplice.” (U.S. v. Lentz).
There are several other elements that need to be met for this statute to apply. There are several jurisdictional clauses (such as “in interstate commerce”). The law also does not apply to a minor child taken by their parent. The kidnapper must hold the victim “for ransom or reward or otherwise.” The courts have usually read these requirements broadly, e.g. in Shaw v. United States, a 1969 case based on an earlier version of the law:
If she was not kidnaped in the ordinary sense of the word, she was "inveigled" or "decoyed" within the language of the statute. She was transported to another state by the defendant. If she was not "held for ransom," she was held "otherwise", that is to say, for the purpose of coition. If she was not physically held or forcibly kept she was "held" through fear and when she was liberated she was not freed "unharmed" since Shaw had had forcible sexual relations with her.
(Note that the court ended up setting aside the conviction in this case by finding “a larger element of consensuality” for the other underage victim. More than a half-century later, it is very unlikely that a judge would rule the same way today.)
