Custodial Interference: What ‘The Child Refused’ Won’t Excuse

More often than one would like, family law attorneys confront a parent who refuses to return a child after parenting time, justifying their conduct by claiming “the child didn’t want to go.” In most jurisdictions, that explanation is not a legal shield when there is an existing custody order issued by the court. Several states criminalize the retention or failure to return a child contrary to a custody order, often under the charge of “custodial interference,” “parental kidnapping,” or similar statutes. Other states sweep such misconduct into their general kidnapping statutes. This DE Insight surveys how criminal remedies can apply, and how courts treat the “child refused” defense.

The Basic Criminal Framework

Although labels vary, the core elements of withholding a child in violation of a custody order are consistent: a parent knowingly retains or fails to return a child without legal right, contrary to a custody order. In many such instances, they then continue to keep the child despite a lawful custodian’s request. Family court litigation regarding such misconduct puts the burden on the parent to bring motions to secure possession of the child and can be expensive.

In many states, however, criminal remedies are available to prosecute the parents who are withholding the child. Connecticut’s statute is a clean example. See Conn. Gen. Stat. Ann. § 53a-98 (West).  A review of Connecticut’s case law addressing the criminal remedies set forth in the statute is instructive. In State v. Lori T., the Connecticut Supreme Court affirmed the decision of the Appellate Court and upheld convictions for custodial interference in the second degree where a mother refused to return three minor children to their father, telling police and the father she would “do what the children wanted.” 345 Conn. 44, at 73, 282 A.3d 1233 (2022). The trial court held the statute’s phrase “otherwise refuses to return”[1] includes declining to take affirmative steps to affect the return after the lawful custodian requests it. Id. at 52. In other words, passive noncompliance, simply not taking the children because they don’t want to go, still violates the criminal law.

Other states capture criminal liability for such conduct with slightly different drafting. Minnesota criminalizes, among other things, refusing to return a minor to a parent or custodian, even outside of a formal order context, if the conduct manifests an intent to substantially deprive parental rights. See Minn. Stat. Ann. § 609.26 (West). Kansas goes further, specifying that it is not a defense to prosecution under their statute that the defendant is a parent with joint custody (whether by order or the absence of one). See Kan. Stat. Ann. § 21-5409 (West).

Rhode Island criminalizes such conduct under its “child snatching” statute, which makes it a felony to intentionally remove or detain a child under 18, within or outside Rhode Island, with the intent to deny another person’s custodial rights under a Family Court order. See R.I. Gen. Laws § 11-26-1.1.[2] The Rhode Island Supreme Court in State v. Kane upheld the application of this statute where a father refused to return his child to the mother pursuant to a Family Court consent order, fled the state with the child, and was later arrested and extradited. 625 A.2d 1361 (R.I. 1993). The Court confirmed that the Superior Court retains subject-matter jurisdiction over such criminal acts even when committed outside the state, emphasizing that the statute’s broad reach reflects the legislature’s intent to prevent child snatching in violation of custody decrees.

Texas has proposed legislation to make it a criminal offense to take or retain a child younger than 18 in violation of a custody order. See Tex. Penal Code Ann. § 25.03 (proposed) (West). Proposed legislation in Michigan elevates parental kidnapping to a felony when a parent takes or retains the child for more than 24 hours with intent to conceal from a parent who has rights under a lawful order. See Mich. Comp. Laws Ann. § 750.350a (proposed) (West).

Many states have applied their general kidnapping statutes to custodial interference cases, especially when the taking or retention of the child involves deception, flight across state lines, or concealment intended to deprive another parent of lawful custody. While some courts have interpreted general kidnapping laws narrowly to avoid overlap with more specific custodial interference statutes, others have held that the elements of kidnapping, particularly unlawful restraint and intent to interfere with lawful custody, are satisfied in egregious parental abduction cases. For example, In State v. Petruccelli, the Vermont Supreme Court vacated a custodial interference conviction because the defendant’s actions, using force to restrain a child, fell under the kidnapping statute rather than custodial interference. See State v. Petruccelli, 170 Vt. 51 (1999). In State v. Holtcamp, the Tennessee Court of Criminal Appeals held that a parent without lawful custody violates the kidnapping statute when they form the intent to detain or conceal a child from the custodial parent while enjoying lawful visitation rights and unlawfully detain the child in furtherance of such intent. The court clarified that the intent to detain or conceal need not be present at the moment the child is taken from the custodial parent. See State v. Holtcamp, 614 S.W.2d 389 (1980). Lastly, in People v. Leonard, the New York Court of Appeals upheld a kidnapping conviction against a parent who used their infant child as a hostage during a confrontation with police. The court reasoned that even though the parent had equal custodial rights, their conduct, threatening the child with deadly force, was so harmful and unjustifiable that it constituted kidnapping. The court emphasized that a custodial parent’s control over a child becomes unlawful when it crosses into dangerous or harmful conduct. See People v. Leonard, 19 N.Y.3d 323 (2012). The application of general kidnapping statutes to custodial interference cases depends on the specific statutory language, legislative intent, and factual circumstances. Courts generally reserve kidnapping charges for cases involving force, threats, or harm, while custodial interference statutes address violations of parental custody rights, particularly when deception, flight across state lines, or concealment is involved.

‘The Child Didn’t Want to Go’: How Courts and Statutes Treat It

• The Default Rule: A Child’s Preference Does Not Excuse Non-Return

In many jurisdictions, a minor’s consent is irrelevant to custodial interference. Washington codifies this bright line: “Consent of a child less than sixteen years of age … does not constitute a defense” to custodial interference in the first or second degree. See Wash. Rev. Code Ann. § 9A.40.080 (West). That statutory approach reflects a common policy judgment: day-to-day logistics and compliance with orders are the parent’s responsibility, not the child’s.

Connecticut’s Lori T. decision reaches the same result without a categorical “consent” clause. The mother argued her “inaction” (not forcing the children to go) shouldn’t be criminal. The court rejected that, emphasizing that “refuses to return” includes failing to take any affirmative steps to return the children after a proper request. Testimony that the mother told the father and police she would not make the children go was sufficient evidence of refusal. See State v. Lori T., 282 A.3d 1233 (2022).

• Narrow Statutory Carve-outs Exist, But Are Limited and Fact-Specific

A small number of statutes incorporate age-based or child-instigation defenses. Pennsylvania’s interference statute provides defenses, including where the child is at least 14 years of age and was taken “at its own instigation without enticement and without purpose to commit a criminal offense with or against the child.” See 18 Pa. Stat. and Cons. Stat. Ann. § 2904 (West). Note that Pennsylvania also recognizes defenses for taking a child to preserve them from danger, and for a parent acting not contrary to a court order entered by a court of competent jurisdiction. Id.

By contrast, Florida recognizes defenses tied to danger to the child or domestic violence, but not tied to the child’s preference. See Fla. Stat. Ann. § 787.03 (West). Many other states are similar: they allow necessity-type defenses, such as imminent harm and domestic violence, but not a defense grounded solely in the rationale that “the child didn’t want to go.”

• The Presence of an Order is Pivotal

Where an order exists, a parent generally must comply unless and until the order is modified. Lori T. is again instructive: the father had legal and physical custody; the mother had visitation. After he requested return at the appointed time, the mother’s refusal to take affirmative action to effectuate the return, despite police prompting, supported criminal liability. See State v. Lori T., 282 A.3d 1233 (2022).

Some statutes explicitly link the crime to order violations (e.g., Kansas § 21-5409; Texas § 25.03 (proposed), while others criminalize retention after a lawful custodian’s request regardless of formal orders (Minnesota § 609.26). Either way, a standing court order typically defeats any argument that a parent can defer to a child’s wishes in reported cases.

Practical Playbook for Family Practitioners

Lock Down the Elements Early: If your client’s co-parent failed to return the child, assemble the operative custody order and parenting schedule. Proof of a clear demand for return of the child (texts/emails stating “Please return [child] now under the order”) and evidence that the other parent could return the child but declined (e.g., “I’m not making him go”) strengthens the case. In Lori T., testimony that the mother said she would “do what the children wanted” and would not make them go was key. See State v. Lori T., 282 A.3d 1233 (2022).

Know Your Jurisdiction’s Defenses: In many states, there is no “child consent” defense. In Washington, consent of a child under 16 is expressly unavailable. Expect prosecutors to lean on Wash. Rev. Code Ann. § 9A.40.080 (West). In some states there are age-based carve-outs, like in Pennsylvania, the 14–17 “own instigation” defense exists but is narrow and fact-intensive—no enticement, no criminal purpose, and it is separate from the question whether the actor violated a court order. Don’t assume it applies just because a teen balks at exchanges. Finally, many states recognize a defense where the parent believed action was necessary to preserve the child from danger (e.g., Pennsylvania; Florida’s “reasonable cause” variants). These focus on safety, not preference.

Coordinate Civil and Criminal Tracks: A contempt motion remains the ordinary family-court remedy. But when safety isn’t at issue and non-return is deliberate, a parallel criminal referral can be appropriate. Provide the prosecutor with the order, demand-to-return proof, and any admissions. In jurisdictions like Texas and Michigan, emphasize “retain/keep” language and, where applicable, duration and intent to conceal.

Coach Clients on Exchanges: Advise compliant parents to document the hand-off attempt and request for return. In some cases, it may be appropriate to involve law enforcement for a welfare check and request a report (as in Lori T., officers’ involvement formed part of the narrative). See State v. Lori T., 282 A.3d 1233 (2022). Lastly, advise clients to avoid unilateral “self-help” beyond what the order authorizes. If you represent the withholding parent, do not rely on the child’s refusal. Unless your statute has a 14–17 carve-out like Pennsylvania’s, it is  unlikely to help; and even then, it is narrow. If there is genuine danger or domestic violence, consider the statutory defenses (e.g., Florida § 787.03(4)) and move immediately for emergency relief; don’t sit on the order.

Key Takeaways

• A parent who withholds a child contrary to a valid order risks criminal exposure under custodial-interference/parental-kidnapping statutes, even if the child says they don’t want to return. Refusing to take affirmative steps to comply can be enough. See State v. Lori T., 282 A.3d 1233 (2022).
• Some jurisdictions explicitly bar “child consent” as a defense (e.g., Washington for children under 16).
• Limited exceptions exist (e.g., Pennsylvania’s 14–17 “own instigation” defense), but they’re narrow and don’t turn a court-ordered exchange into a child’s option.
• When the problem is chronic and willful, a criminal referral, alongside civil enforcement, can deter future violations and protect the schedule.

The law surrounding this issue may evolve over time in every jurisdiction, but this snapshot of current law makes it clear that the facts and circumstances matter in every jurisdiction. Seeking legal counsel for your custody matter helps ensure that your rights and your child’s best interests are protected, allowing you to make informed decisions and avoid costly mistakes.

[1]           The full text of the relevant subsection pursuant to which mother was prosecuted imposed criminal liability where a person “knowing that he has no legal right to do so, he holds, keeps or otherwise refuses to return a child who is less than sixteen years old to such child’s lawful custodian after a request by such custodian for the return of such child.”

[2]           That statute sets forth a lesser, two year maximum sentence, as opposed to the twenty-year maximum under the states ‘general’ kidnapping statute.  R.I. Gen. Laws § 11-26-1.

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