PUJA SACHDEV | March 6, 2020 | Child Custody
When you and your spouse are separating or divorcing, one of the most contentious issues you may face is what to do about child custody. Things may get even more combative if one parent is awarded sole custody of a child. If this happens, it is possible that the other parent may take the child without the consent of the other parent.
If this happens, that parent can be charged with kidnapping their own child. While this answer may surprise you, it is actually a serious crime. All states, including California, have laws to protect children from being abducted or kidnapped by one parent without the permission of the other.
What is Parental Kidnapping?
Parental kidnapping is a form of kidnapping. Kidnapping is when one person takes another against their will. They can also be taken by coercion, force, or intimidation. That person then keeps the other captive and does not allow them to leave. For parental kidnapping, a parent takes a child without the other parent’s permission.
Parental kidnapping, also known as parental abduction, is usually done in violation of a custody order. A custody order is a parenting plan that is made by a court. It usually determines which parent will have legal and physical custody of the child. Legal custody means that the parent has decision making powers concerning major choices like the child’s health, education, and religion. Physical custody means the parent has the legal right to have the child live with them at their house.
Both legal and physical custody can be either joint or sole. Joint custody means that the parents share the responsibility, while sole custody means that one parent is the major provider of either or both legal and psychical custody. If one parent has sole physical custody, the other parent is usually granted visitation rights. However, if the parent is deemed a threat or danger, they may be forbidden in the custody order from seeing their children.
Parental kidnapping can be long-term or short-term. Long-term parental kidnapping would mean that the parent takes the child without the intent of returning them in the future. This often happens when one parent is from a different country and they take their child out of the U.S. with the intention of having them in a different country. Short-term parental kidnapping could include a parent without physical custody or visitation taking their child on a short vacation without the express permission of the custodial parent.
Parental Kidnapping in California
California law is very strict on parental kidnapping. There are several laws that are relevant including the California Abduction Law, and the California Kidnapping Law. The main difference between the two is that the Abduction Law is a crime against the other parent of the child. The Kidnapping Law is a crime against the child.
Under the California Abduction Law, also known as non-custodial detainment, you can be charged with either a misdemeanor or a felony. It will be up to the prosecutors to decide which avenue they want to pursue depending on the type of abduction and the intent behind it.
If convicted, you may face over a year in jail and a fine of up to $1,000. Child abduction can also happen if a parent does not move the child from the area they live in. Rather, the parent can be found guilty as long as they intend to conceal or detain the child away from the other parent without permission.
A person can be found guilty under the California Kidnapping Law if they move another person a significant distance without their consent. They must also do this with the use of force or fear.
This means that the kidnapper is actually physically forcing the other person to relocate or they make them move by threatening physical harm. For parental kidnapping, the non-custodial parent would force the child to move a significant distance, even to another country, without the consent of the other parent.
Anything else you should know about Parental Kidnapping?
How do you file parental kidnapping charges? If you are the custodial parent and your child’s other parent has taken them, you do have options. The best option would be to seek counsel that has experience in parental kidnapping charges. They will help you gather evidence to present to the judge to show that your child was taken from you in violation of the custody order.
It is also important to note that you can file kidnapping or abduction charges even if there is no custody agreement. When there is no custody order, the assumption is that both parents have an equal right to taking care of the child and making decisions on their behalf. It may still be considered abduction if one parent takes the child without the parent’s consent with the intent of keeping the child away from the other parent.