After eight years of marriage and the birth of one child, Tina and Derek decided to call it quits. Their divorce became contentious as both parents wanted custody of their child, Alex. Unable to agree on custody and visitation, they presented their cases to a judge, who granted Derek sole legal and physical custody and approved a visitation plan. After a weekend visit, Tina refused to return Alex to Derek. Has Tina committed a crime? Since Alex is her child, is she committing parental kidnapping by refusing to return him to his legal custodian?
Child Custody Arrangements
Parental kidnapping cases usually occur because of custody disputes. Maybe one spouse objects to the judge’s decision to grant custody to the other parent. Often, parental abduction cases stem more from power struggles than keeping children safe from an unfit parent. In our example above, the custody order left Tina feeling powerless. Tina indeed loves her son, but she is also trying to use him as leverage to get more spousal support and joint custody.
There are legal ways to resolve custody disputes without having to resort to kidnapping. Your divorce attorney can explain your options. For example, you may have evidence that your co-parent is unfit that the court never heard. Your attorney might present that evidence to the court and ask that your custody agreement be modified.
But parental kidnapping is the wrong way to handle a disagreement over custody.
What Qualifies as Parental Kidnapping
According to California Penal Code, someone who does not have the right to custody commits a crime by maliciously taking, enticing, keeping, withholding, or concealing a child from his or her lawful custodian.
This is precisely what Tina did –withheld her son from his legal guardian. The judge’s custody order was clear and unambiguous. By ignoring the order, she is committing a crime that is punishable by:
- Up to one year in a county jail, a fine of up to $1,000, or both; or
- Imprisonment for two to four years, a fine up to $10,000.00, or both.
Unless your child is in clear and immediate danger, it is better to work through the legal system to resolve custody disagreements.
What Isn’t Parental Abduction?
Unusual situations can arise when parents and children are involved. For example, the mother automatically has custody (at least initially) if the parents of a child are not married. Generally, this is true even if the parents were living together with the child.
So, if Tina and Derek were not married at the time of their breakup, Tina would have immediate custody of Alex. If Derek removed Alex from home without her permission or refused to return him, then Derek would have committed child abduction. Derek could get an attorney to help him exercise custody and visitation rights instead of just taking Alex.
Also, if a married couple is still together, and a judge has not signed a custody order, then both parents have custody. If Derek takes Alex on a fishing trip against Tina’s wishes, it is not parental abduction because Derek has the same parental rights to Alex as Tina does.
What Can You Do About Parental Kidnapping?
Maybe you are still married but worry about your spouse taking your children away. Talk to an attorney immediately. But if you or your children are in immediate danger, call 911 first.
The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce, legal separation, and annulment. Call us at 415-293-8314 to schedule a private appointment or visit our website. We assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.