The New York Court of Appeals [official website] on Thursday ruled [opinion text, PDF] that a custodial parent can be convicted of kidnapping where the parent's actions are "so obviously and unjustifiably dangerous or harmful to the child as to be inconsistent with the idea of lawful custody." The court made this ruling to affirm the conviction of a father who shared equal custody with the child's mother but, when approached by police officers responding to a domestic violence call, held onto the child and threatened him with a knife when the police came close. The court ruled that this satisfied the element of unlawfully restraining the child "without consent," and that, even as custodial parent, he did not have the right to consent the child to such a dangerous type of restraint. The court made clear that this ruling does not apply when a child is punished inappropriately or even when unlawful child abuse is committed, but only in situations as extreme as this one.
Applying kidnapping laws to custodial and noncustodial parents has been an issue even internationally. Last year, Japan announced plans to sign [JURIST report] the Hague Convention on the Civil Aspects of International Child Abduction [text], but it has yet to do so. The treaty was created in an attempt to eliminate difficult situations arising from one country's disagreement with custody decisions of another country's courts. In 2010, the US Supreme Court ruled [JURIST report] that ne exeat clauses, which prohibit removal of a child to another country without the other parent's consent, confer a "right of custody" under the convention, so that other countries are required under the convention to return children removed against these clauses.