Child custody is a topic with many complications. Here’s how to answer the question: “Is it possible to kidnap your own child in California?”
Many parents may not realize they can be arrested and charged with kidnapping their own child (even if they are the biological parent). Parents may wonder what is considered kidnapping. Here are some terms and situations to note when thinking about the possibility of kidnapping one’s own child in California.
What Are Some Kinds Of Kidnapping?
Withholding a child from his or her lawful custodian or legal guardian, even if the kidnapper is a biological parent is called “parental abduction.” Intentionally depriving a child’s other parent of shared custody or visitation they are entitled to is a crime, known as “interference with child custody.”
Related: Parental Kidnapping in California
Non-Custodial Detainment
Under California Penal Code Section 278, a parent, family member, or any person without legal custody who maliciously takes or hides a child with intent to keep them from their legal guardian is guilty of a crime. A parent may be charged with parental abduction even if they have joint custody.
To be convicted of kidnapping, the prosecution must prove the following:
- One maliciously withheld or kept a child from his or her lawful custodial
- The child was under the age of 18
- One did not have custody of the child during the action
- One intended to conceal or hide the child from their legal guardian
Exception To Interference With Child Custody
If a parent has a reasonable belief the other parent is likely to inflict immediate bodily injury or emotional harm to the child, they cannot be convicted. The acting parent must do the following within a reasonable time frame:
- Report to the District Attorney’s Office that they took the child
- File for custody consistent with the Parental Kidnapping Prevention Act and Uniform Child Custody Jurisdiction Act
- Inform the District Attorney of current contact information for the child
What Are The Differences Between Kidnapping and Child Abduction?
Although kidnapping and child abduction are serious crimes, they are extremely different. Under California Penal Code, kidnapping refers to the movement of any person (adult or child) by a substantial distance by use of force. Charges do increase if the victim is under 14 years of age. Child abduction can be charged as a misdemeanor or felony in California. If a person is convicted of misdemeanor child abduction, they face up to 364 days in jail and a fine of up to $1,000. If convicted of felony child abduction, a person will face up to two, three, or four years in state prison and a fine of up to $10,000.
What Impact Is There On Custodial Rights?
Parental kidnapping and child abduction are serious crimes. If convicted, custodial rights will be impacted. The family court may also find the person in contempt of a custodial court order in place and could change or revoke custody/visitation rights if they find it is in the child’s best interest.
Related: Parental Child Abduction Laws in California
FAQS
Related: Child Custody FAQs in California
If I take my children to live out of state with me, can this be considered parental kidnapping?
Whether or not taking children out of state can be considered kidnapping depends on multiple factors:
- Whether or not you have a custody order
- How long has the child been gone
- Which county you are in
- Whether or not the child is an immediate danger
- How strictly parental kidnapping laws are enforced in the county you live in
More information can be found on the Selected California Statutes page.
If I think the other parent may kidnap my own child, can the California court help me?
A parent should provide as much evidence as possible to the judge to support their concern that the other parent is likely to abduct (kidnap) the child. To determine whether or not risk of abduction is present, the judge considers whether or not the other parent has:
- Taken the child in violation of your custody
- No strong ties to California
- Strong ties to another state or country
- A criminal record
- No financial reason to stay in the state of California
What can I do if I or someone else was accused/was a victim of parental kidnapping?
Parental kidnapping is a serious felony requiring legal help. In order to make an impactful case, make sure to partner up with an experienced attorney.