Can a parents abduct their own child?

Pursuant to Art. 211 of the Criminal Code, it is a crime to abduct or detain a minor under the age of 15 or a person who is helpless against the will of a person appointed to guard or supervise him. There is therefore no doubt that if we arbitrarily take someone else's child, we risk criminal liability. It happens, however, (especially during divorce) that one of the parents decides to take the children without informing the other about it. Is such an act also a crime?

The answer to the above question depends largely on the parental authority of the parents. As a rule, each of the parents has full parental authority, but the court may, in special cases, limit, suspend or even deprive it. Therefore, the above situations should be considered separately.

Full parental authority for both parents

According to the uniform jurisprudence of courts, "one of the child's parents may be liable for an offense under Art. 211 of the Penal Code only when his/her parental authority has been limited or has been deprived of it" (Supreme Court resolution of November 21, 1979, VI KZP 15/79)). However, we will also deal with a penalized abduction in a situation where one of the parents takes the children and, despite the later loss (or limitation) of their authority, is not handing them over to the other parent.

Suspended parental authority

During the time when the parental authority of one of the parents remains suspended, he/she cannot exercise custody of the child. Therefore, if such a person abducts or detains children without the knowledge and/or consent of their legal guardian, he/she will be committing a crime. Of course, this only applies to the suspension time - anything that happens before and after is not a prohibited act.

Limitation of parental authority

As a rule, it is assumed that limiting the parental authority of one of the parents results in the fact that he or she is no longer a "person appointed to guard or supervise" the child, and thus may commit the offense referred to in Art. 211 of the Penal Code. However, in this case automatism should be avoided and each case should be carefully analyzed. The method of restriction is very different and it may turn out that in a given case it did not result in the loss of custody of the child.

Deprivation of parental authority

A parent deprived of parental authority has no right to decide on the whereabouts of their children, therefore they commit a crime by abducting them. This situation is unequivocal. In such a case, the parent can only apply for extraordinary mitigation of punishment due to the specific situation.