The removal of children by one parent without the consent of the other constitutes a criminal offence: Abduction or Self-Help (Autodikia).
As a matter of principle, the following applies to the custody of minors: for as long as the parents of minor children remain together, custody is exercised jointly. If, however, separation or divorce occurs, the court decides; therefore, until a judgment on custody is issued, the parents continue to exercise custody jointly. In the present case, where proceedings have not yet been initiated or no relevant court ruling has been issued regarding the custody of the minors, if one of the spouses takes the child or children and disappears, that parent does not commit abduction, but rather self-help (autodikia) — an offence which is, however, prosecuted upon formal complaint, within three months. For example, self-help is committed by the accused mother who settled with her minor children, without the knowledge of the husband and father, in another city and excludes the complainant father from any communication with his child. Abduction of a minor may also be perpetrated by a parent of the minor who does not have the right to exercise custody of the child, when he or she removes the child from the parent who exercises custody by virtue of a court ruling.
In cases where no court ruling has been issued assigning custody of the minor children to the parent with whom they reside, the removal of the child by the other parent does not constitute abduction of a minor, because such removal is itself an act of custody. The arbitrary removal of the minor, where there is no court ruling generally regulating custody of the child in accordance with the child’s best interests, with the parent’s awareness that he or she is acting arbitrarily without resorting to the courts to assert any claim he or she may have for the justified removal of the right of custody, and with the parent’s conviction that the right of custody of the child should belong to him or her alone, constitutes the offence of self-help (autodikia), which carries a lesser penalty. The Penal Code, in Article 331 of the PK (Penal Code), provides as follows regarding the offence of self-help: “Whoever arbitrarily exercises a claim relating to a right which he either actually holds or which he appropriates by conviction, shall be punished by detention of up to six (6) months or by a fine of up to three thousand (3,000) euros. Criminal prosecution shall be brought only upon formal complaint.”
From the combined reading of Articles 324 PK, 1518 AK and 1510 and 1512 AK, it follows that the custody of a minor and his or her upbringing is exercised by both parents; for that reason, a perpetrator of abduction of a minor may be a parent who has been deprived of the right of custody by a court ruling. As long as the parents are in factual separation, with no court ruling having yet been issued assigning custody of the minor to the parent with whom the child resides and by whom he or she is cared for, any removal of the child by the other parent does not constitute abduction of a minor, as it does not satisfy the elements of the objective conduct described in Article 324 PK. However, in this latter case, the removal of the minor by the other parent without the latter’s consent constitutes the arbitrary exercise of a claim relating to a right which the perpetrator either actually holds or appropriates by conviction, in which case the offence of self-help under Article 331 PK is established (case-law: Areios Pagos 712/2018).
- See also article Divorce
- See also article Relocation of the Family Home
- See also article Joint Custody of a Child
- See also article Child Maintenance
FREQUENTLY ASKED QUESTIONS ON CHILD CUSTODY AND CHILD ABDUCTION
1. I am being charged with abducting my own child — what am I facing?
When one parent takes the minor child without the consent of the other, he or she may be charged either with abduction of a minor (Article 324 of the Penal Code (PK)) or with self-help (autodikia) under Article 331 PK, with a vast difference in penalty. The distinction depends decisively on whether a court ruling had already been issued assigning custody to the other parent. Where no such ruling exists and the parents jointly exercise parental care, the act is, as a rule, classified as self-help, punishable by detention of up to six months or a fine of up to 3,000 euros. The proper legal handling of the case requires careful management from the very first moment.
2. How can I avoid conviction for abduction of a minor?
The principal line of defence is to challenge the objective conduct elements of Article 324 PK. If there was no court ruling assigning custody exclusively to the other parent, the act does not establish abduction — as held in Areios Pagos 712/2018. In that case, the charge will at most be reclassified as self-help, which carries significantly more lenient treatment. If the formal complaint for self-help was filed more than three months after knowledge of the act, criminal prosecution cannot be brought. Mitigating circumstances are also considered (Article 84 PK), such as a prior honourable life and sincere motives of protecting the child.
3. Do I risk imprisonment if I am convicted?
For self-help, the maximum penalty is six months’ detention or a fine of up to 3,000 euros, so in any event the sentence is suspended or converted. For abduction of a minor, which is a felony, the picture is clearly more serious; however, even there, instruments to reduce exposure exist: recognition of mitigating circumstances, reclassification to a lesser form, and suspension of execution (Article 99 PK) where the conditions are met. In practice, where the accused parent acts out of love for the child and without putting the child at risk, the courts show heightened leniency. Proper documentation of motives is decisive.
4. What should I do if I am summoned to give a statement or to appear at the preliminary investigation?
From the very first summons, the presence of a lawyer is critical. The accused parent has the right to remain silent and is not obliged to make a statement immediately; he or she may request a deadline in order to prepare a memorandum. Premature or spontaneous declarations to the police or the investigating judge may be used against him or her and may aggravate the characterisation of the act as abduction rather than self-help. Drafting a written defence memorandum, accompanied by documents proving the actual custody situation, often changes the course of the case file already at the preliminary investigation stage.
5. What documents and evidence do I need for my defence?
Every piece of evidence is gathered which demonstrates that no court ruling on custody existed in favour of the other parent, that the child resided with or was primarily cared for by the accused, and any circumstances that justified the removal (dangerous environment, violence, neglect). Useful items include medical documents, school certificates, messages, witnesses, and reports from social services. The date of filing of the formal complaint is also examined in relation to the three-month deadline under Article 117 PK. Proper organisation of the file from the outset largely shapes the outcome.
6. How can the Law Firm ZIAMPARAS D. & ASSOCIATES help?
The firm undertakes the overall management of the case from the preliminary investigation through to the courtroom, with the aim of securing the proper legal characterisation of the act and reducing the parent’s criminal exposure. It drafts defence memoranda, challenges the objective conduct elements of abduction, advances the more lenient framework of self-help, and raises pleas of lapse of the complaint period and mitigating circumstances. In parallel, it manages the civil dimension as well — applications for custody or temporary restraining orders — so that the criminal and family-law strategies operate complementarily, in the interest of both the parent and the child.