Parental kidnapping is a common term for cases where a non-custodial parent refuses to return a child after the end of a lawful visit. However, it can also refer to a situation in which a custodial parent does not allow the non-custodial parent to have visits.
Review of state charges
Parental kidnapping charges are an offense under California law. Because it is a state-level offense, state prosecutors will usually pursue a case before a state judge. If a parent gets convicted, then they will be punished under state law.
In California, the punishment for parental kidnapping can include jail time of up to one year, as well as a fine. Depending on the parent’s criminal history and various other factors, an enhanced punishment with additional jail time is also possible.
In order to convict a parent, the state must prove that the parent acted with what the law refers to as “malice.” This means that a parent who withholds a child because of uncontrollable circumstances or for some plausible reason may have a defense.
Federal charges are possible
However, it is possible for a parent who defies a child custody order to face federal charges. By its terms, the general federal law prohibiting kidnapping across state lines does not apply to situations where a parent takes their own child.
However, there is a separate federal law which prohibits parents from leaving the United States with their children if they are doing so with a plan to prevent the other parent from exercising a legal right to custody or visitation. Leaving the United States would of course include traveling to Mexico, which is only about 100 miles from Irvine.
A parent convicted of this charge faces fines and up to three years in a federal prison. Additionally, the parent will have a serious criminal conviction on their record.
Can the charges be dropped?
Parents do have several defenses available to them if they face a charge under this law. For instance, the parent may be able to prove that they or their child was a victim of domestic violence and they had to leave the country to protect themselves or their child. The parent may also defend themselves if they can show that they had a court’s permission to take necessary actions.
Even well-intentioned parents can find themselves on the receiving end of this type of charge. If you have been charged for parental kidnapping or feel your ex-spouse is violating your custody agreement, be sure to carefully evaluate all of your legal options and consider speaking with an experienced attorney.