Steven Fernandez |

Child Custody

Surprisingly, the answer is yes. You can be guilty of kidnapping your own child. Parental kidnapping usually happens during a custody battle or combative divorce.  One parent decides to take the child physically away without the permission of the court or the other parent. In California, this is a serious crime and you will be prosecuted.

If there is a divorce or separation, it is always imperative that you and the other parent form a child custody agreement. This step lets both parents know what the rules are and how to follow them. It also helps safeguard the child and protect against parental kidnapping.

What is the Law?

In California, there is a substantial difference between the crimes of child abduction, interference with custody, and parental kidnapping.

Child abduction occurs when anyone without legal consent maliciously takes a child with the purpose of hiding them from their legal guardian. While parents do commit this crime, it can also be done by any family member or adult who takes a child without permission.

Interference with custody happens when one parent maliciously deprives the other parent of their custody rights. This includes not letting one parent fulfill their court-mandated visitation rights. It is important to note that you can still be guilty of this crime even if you have been granted sole custody of the child.

Kidnapping is a serious crime. It is defined as moving a person a substantial distance by use of threats or force. If you are convicted of this, you may spend up to eight years in prison and may have to pay a fee of up to $10,000.

What About Custodial Rights?

Is it kidnapping if there is no custody order? Can a parent still kidnap their own child? The answer here is – probably not. In general, if there is no custody order, you can take your child without permission from the other parent without legal ramifications.

However, if there is no custody order and the child is taken, the other parent can ask a judge for an ex parte temporary custody order.

These are granted if it can be shown that the child is in immediate harm or that the child is being removed from the state of California. If this order is granted and you take the child without permission, you can be convicted of abduction or kidnapping.

What is Considered Parental Kidnapping?

In parental kidnapping cases, the accused is the non-custodial parent and the person being moved is the child. There are stricter penalties if the child is below the age of fourteen. The judge will look at several factors to determine the extent of the kidnapping. These include:

  • The age of the child
  • How far away the child was taken (including outside of the U.S.)
  • What type of care the child received
  • If physical threats or harm were made, or
  • If any attempts were made to conceal the child’s identity.

There are several defenses for parental kidnapping. If proven, these may lessen or even void any punishment. Some defenses include no malicious intent, good faith that the child was in harm’s way with the custodial parent, there is insufficient evidence, or there were false accusations.

If you are convicted of parental abduction or kidnapping, there will be serious consequences to your custodial rights. More than likely you will lose any future custody or visitation rights until the judge believes that it is in the best interest of the child to see you again.

How Do I File Parental Kidnapping Charges?

If you think that the other parent has abducted or kidnapped your child, contact the local authorities immediately. The taking of the child violates the court-ordered child custody agreement and you can ask the police department to enforce the order.

This is easier to do if the parent and the child are still in the state of California. If they have left the state, the police can contact the appropriate authorities to help you track down and return your child.

There are a few steps to take if you believe that the other parent may attempt to kidnap the child but has not done so yet. Keep a detailed list of addresses, telephone numbers, and important information like descriptions of the other parent and their social security number. Make a log of what the other parent does and says.

It would also be helpful to take a picture of your child every few months to record their current appearance.