What You Need to Know About Parental Kidnapping in California
Parental kidnapping is a serious crime in California and commonly occurs in two different ways. Here is everything you need to know about parental kidnapping in California.
A parent may be convicted of parental kidnapping if they take or withhold a child from their legal guardian (parental abduction), or if they deprive the other parent of visitation or custodial rights (interference with child custody). Depending on an individual’s circumstance and the severity of the case, an individual can face felony charges or a misdemeanor.
California’s Parental Kidnapping Laws
Parental abduction and interference with child custody are two crimes that constitute parental kidnapping in California. A parent should be aware of both forms of parental kidnapping to avoid facing charges.
Under Penal Code 277, a parent is included in the list of individuals that constitute the definition “persons.” Due to this, parents are subject to the laws and punishments outlined in the codes that follow. CPC 277 defines abduction as taking a child, withholding them, enticing them, keeping them, or concealing them. Keeping or withholding a child means retaining physical possession of them. A parent does not need to be holding the child against their will to be convicted of parental kidnapping.
Under Penal Code 278, a parent who lacks custody, and maliciously takes their child from the other parent or hides their child, can be convicted of child abduction.
If a misdemeanor, an individual may face:
- Up to one-year imprisonment in county jail and/or
- A fine of up to $1,000
If a felony, an individual may face:
- Up to four years imprisonment and/or
- A fine of up to $10,000
Under Penal Code 278.5, it is a crime to maliciously deprive a child’s other parent of their custody or visitation rights. A parent who does so may be charged with interference of child custody. Since PC 278 protects another parent’s rights, a parent can have joint or sole custody and still be charged.
If a misdemeanor an individual may face:
- Up to one-year imprisonment in county jail and/or
- A fine of up to $1,000
If a felony an individual may face:
- Up to three years imprisonment and/or
- A fine of up to $10,000
Whether a crime is tried as a misdemeanor or felony depends on the specifics of the situation. The following are factors that may be considered when determining the severity of the charges and the sentence:
- Whether a child was physically harmed or at risk of being harmed
- Whether a child became ill or at risk of becoming ill
- Whether a child was threatened
- Whether the child’s other parent was harmed or threatened
- Whether a child was taken outside of the United States
- Whether a child’s education was denied
- Whether there was an attempt to conceal the child’s identity
- The child’s age at the time of the parental kidnapping
- The duration of the abduction or interference
Proving Parental Kidnapping
A prosecutor must prove the following if they wish to convict a parent for parental kidnapping:
- That a parent had a malicious intent
- A prosecutor needs to prove that a parent maliciously kept, concealed, withheld, or enticed away from a child.
- That the parent had no custody rights
- A prosecutor needs to prove that a parent carried out the malicious action while having no legal authority to do so.
- That the parent’s intention was to keep or conceal the child from their legal custodian
- A prosecutor must prove that a parent took measures to hide the child or keep their legal custodian from seeing them.
Exceptions to Penal Code 278.5
If a parent kept their child from the other parent out of reasonable concern for their child, then a court cannot convict a parent for the interference of child custody. The following are situations under which a parent would not be convicted:
- If a parent believed the other parent was going to inflict immediate bodily injury on the child (domestic abuse)
- If a parent believed the other parent was going to inflict immediate emotional harm on the child (also domestic abuse)
If a parent takes their child for the reasons listed above, they must:
- File a report with the DA notifying them that they have taken the child
- File for sole custody in accordance with
- The Parental Kidnapping Prevention Act and
- Uniform Child Custody Jurisdiction Act
Related: How to Terminate Parental Rights in California
FAQS
Does California consider it parental kidnapping if I don’t let my former spouse see the child because I don’t think it is the best thing for my child?
Yes. Unless your child is in immediate danger, you cannot determine what is best. The court will determine what is best for your child, and if they have granted the other parent joint custody or visitation rights, you must abide by court orders.
Can I get convicted of a felony for ignoring my child’s other parent’s custody rights?
You can get convicted of a felony for interfering with child custody. If the situation is not as severe, you can be charged with a misdemeanor instead.
How does parental kidnapping affect custody rights in California?
If the parents were married, and thus had no custody agreement, the parent who abducted the child will potentially lose their custody rights. If the two parents were not married, a parent who abducts their child or interferes with a custody agreement can have their custody and visitation rights revoked by the court.
Related: How Domestic Violence Affects Child Custody in California
Contact Us
If you or a loved one has been accused or a victim of parental kidnapping, contact us. We’ll get you in touch with the most qualified attorney for your unique legal matter. Get your free consultation with one of our California Family Law Attorneys today!