If I Leave My Spouse and Take Our Child Is It Kidnapping

If you are considering leaving your spouse and having kids involved, you are likely trying to decide the best path forward with the least disruption to your kids’ lives and well-being. One of the many considerations is how to execute the initial separation or move from your spouse. There are countless reasons one may choose to leave and feel it necessary to take their children with them, but South Carolina has strict guidelines on how this should be done. 

If you are considering filing for divorce or leaving your spouse, hire an experienced South Carolina family law lawyer. At Indigo Family Law, we genuinely believe that family is the most important thing and that separation and divorce will significantly impact everyone involved. Our goal is to help you develop a plan that will work out in the best interest of your children and yourself. 

Parental Rights 

In South Carolina, both legal parents are granted access and rights to the child. In these rights, it is appropriate to assume that the parent should be notified of where the child is. The Family Rights and Responsibilities Act outlines some of these rights as:

  • The right to choose the education of your child. This includes enrolling in public, private, religious, or home school
  • The right to make reasonable choices within public schools for your child’s education. This can include the right to participate in the children’s school activities and extracurricular activities such as parent-teacher conferences
  • As a parent, you have the right to access and review all school records relating to your child
  • You have the right to determine how your child is raised
  • You have the right to determine any moral or religious values taught to your child
  • You have the right to initiate and provide written consent to all medical, physical, or psychological procedures on your child. 
  • to access and review all of your child’s medical records
  • to consent in writing before a biometric scan of your child is made, shared, or stored
  • You have the right to provide consent before any DNA samples of your child are collected, analyzed, or released unless authorized pursuant to a court order
  • to consent in writing before any governmental entity makes a video or voice recording of the child with few exceptions, such as a legal investigation. 

Apart from legal interventions like a protective order or custody agreement, all legitimized parents are afforded the right to rear their children. If you take your children out of the family home for a time of more than 72 hours without notifying your partner and getting their agreement, you may very well be charged with custodial interference.

Custodial Interference

Custodial interference references transporting a child under the age of 16 from the legal guardian in an attempt to circumvent custody proceedings or to otherwise conceal the child from a guardian. Additionally, South Carolina statute 16-17-495 states that it is reasonable to assume custodial interference if the child has been taken beyond state borders for beyond 72 hours without parental notification. While the term abduction or kidnapping typically refers to someone who is not a custodial parent removing the child from a parent’s custody, custodial interference is more commonly used when it is another custodial parent who is trying to hide the child from the other. 

Suppose you are accused of custodial interference or abduction of your child. In that case, the other parent is within their rights to file for an emergency custody order, awarding them with custody immediately and for the time being. Custodial interference or parental abduction is a felony, though the charge may be decreased to a misdemeanor if the child is returned to the other parent within 72 hours. Failure to return the child within 72 hours will result in a felony charge, and regardless of how long it took to return the child, any use of force or threat will result in felony charges. The sentencing requirements per the above-referenced statute 16-17-495 can be found below:

  • Misdemeanor custodial interference: must result in a fine at the court’s discretion that can include attorney fees of both parties or confinement of up to three years. The courts could also require both
  • Felony custodial interference can result in a fine with the amount to be determined by the court or confinement of up to ten years, or both
  • If you are convicted of parental abduction or custody interference at any time, it becomes likely that you will lose your chance to obtain physical custody. Additionally, you may lose access to any kind of visitation rights. 


Parental Kidnapping Protection Act

The Parental Kidnapping Prevention Act (PKPA) is a federal protection and was enacted in 1980 as a way to provide blanket guidelines on custody disputes between states. The PKPA does not determine when courts can become involved in a new custody dispute but provides guidance on ongoing matters and agreements that fall under three criteria:

  • Determining whether to enforce a custody order made by courts in another state or tribe
  • Deciding whether or not to exercise jurisdiction on a case where a custody matter is already pending in another state or tribe
  • Modifying a current order coming from another tribe or state

These guidelines are put in place to prevent parental abductors from fleeing the state and attempting to secure an order in a different state or modify their current order. Exceptions are made in emergency cases where the parent is fleeing domestic violence, allowing the refuge state to exercise emergency jurisdiction. 

Legal Recourse

You can choose to leave your spouse in many ways that may not work in your favor in divorce proceedings or custody arrangements. One bad move can make you appear to be trying to undermine the other parent or interfere with an otherwise healthy relationship. Because of this, it is crucial that you are intentional and thoughtful with your plan to leave. This can be especially true if your spouse is abusing you and your children because of the legal repercussions of custodial interference. Failure to follow the appropriate steps and legal channels can make keeping your kids safe more difficult. However, there are several avenues available to you. 

Speak to an Attorney

While there are many reasons someone may choose to leave their spouse, reaching out to a family law attorney as a first step can make a tremendous difference in the outcome of your case. This is due to simply having the information about the legal system and what may be needed, allowing you to conduct yourself in a way that may lend to a more favorable outcome for you and your kids. If safety is a concern, we can provide referrals for resources that may be able to assist. We may also help you petition for a protective order or other appropriate legal action to keep you and your kids safe until a more permanent court order can be implemented. 

Speak With Your Spouse

If safety is not a concern and there is no emotional or physical abuse occurring in the home, you shouldn’t underestimate the value of having a conversation with your spouse. In many cases of amicable divorce, having an open conversation up front, whenever possible, can lead to more agreeable outcomes. The children can only benefit when co-parents can agree and minimize conflict in divorce proceedings.

Separation Agreement

South Carolina requires that couples live separately for a period of over 12 months. While it does not require a formal separation agreement, creating one can benefit court proceedings. During this time, you can develop a parenting plan to ease the anxiety of transition and help your child feel a sense of continuity between you and your co-parent. This also allows you and your spouse to show what kind of co-parents you can be, which may affect the outcome of the custody agreement. For example, suppose your co-parent regularly passes on parenting time during the separation and has not worked to facilitate a relationship with their children. The judge is far less likely to give them sole custody or 50/50 parenting time in that case. 

Keeping Your Child Without Custodial Interference

Initiating a divorce is stressful in the best of circumstances. Understandably, you may feel leaving without notice and taking your kids with you is the best or safest option, whether that be fear of your spouse’s response or to make things move more smoothly. In a moment, it may make things easier, but it can also have lasting repercussions if your soon-to-be ex-spouse decides to press charges. 

Our Myrtle Beach family law attorneys can explain your options and help you determine the best way to proceed. This may include petitioning for emergency custody or developing a visitation or parenting plan to ensure that the children are with you legally and can stay with you if that is what is best. 

If you are considering leaving, you need the advice of an experienced and compassionate family law attorney. At Indigo Family Law, we put families first and understand that your priority is your children’s well-being. Schedule a consultation today to discuss the details of your unique situation and how we can protect your best interests.