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Defending Against Parental Kidnapping Charges

By San Diego Attorney on October 21, 2020

While most parents believe they have the right to see their child at any time or take them on trips whenever they want, divorced parents operate under different rules and requirements. Once a couple separates, they must enter into a custody agreement by law in California. These custody schedules are not simple guidelines, and violating them can lead to serious consequences, including criminal charges of parental kidnapping.

What Is Parental Kidnapping?

California courts understand that both parents in a divorce should be involved in a child’s life, which is why they work with both of them to create a balanced and fair custody plan. Unless the court feels that a parent is a danger to a child, such as in cases of abuse, it will typically draft a custody plan that ensures each parent gets an equal amount of time with the child. However, parents should always remember that the plans are court-ordered, meaning they cannot ignore them if they do not agree with them.

Under California laws, parents must abide by the specific visitation time outlined by their custody plan. If one parent violates their visitation time or custody schedule, then the other parent can pursue a charge of parental kidnapping against them in accordance with California Penal Code 278.5. Unlike other kidnapping cases, parental kidnapping specifically relates to a parent taking a child against the other parent’s will in violation of a custody plan.

Actions that lead to a parental kidnapping charge include:

  • Refusing to hand a child over to the care of the other parent after visitation time has ended
  • Taking a child out of school when the other parent has custody
  • Going on a sudden vacation with the child
  • Moving out of state with a child without court approval

Child abduction can also be charged against a parent who does not have custody rights under California Penal Code 278. Based on this law, the prosecution would only have to prove that you took your child without the other parent’s permission.

Consequences of Parental Kidnapping

Parental kidnapping can lead to criminal charges as well as a significant change in your custody rights, if you have any custody rights at all. In both situations, parental kidnapping is a wobbler, meaning it can be charged as a misdemeanor or felony depending on the circumstances of your case.

If you were charged with parental kidnapping and you had custody rights, then you could face:

  • Up to one year in a county jail and/or a $1,000 fine for misdemeanor charges; or
  • Up to four years in a state prison and/or a $10,000 fine for felony charges.

If you were charged with parental kidnapping and you did not have custody rights, then you could face:

  • Up to one year in a county jail and/or a $1,000 fine for misdemeanor charges; or
  • Up to 16 months, two, or three years in a state prison and/or a $10,000 fine for felony charges.

In addition to these criminal charges, if convicted, the court could take away custody rights altogether and award the other parent a restraining order. However, there are defenses to these charges that you should be aware of.

Common Defenses for Divorced Parents

The first step to fighting a parental kidnapping charge in a San Diego court is to work with an experienced attorney. At jD LAW, our founding attorney has more than 30 years of experience in addition to an extensive career as an LAPD investigator. With his aid, you may be able to have your charges dropped by demonstrating that:

  • You were delayed in transporting your child to the other parent, such as if you were in an accident;
  • An emergency came up, or you were trying to protect your child from danger;
  • You were fleeing domestic abuse;
  • There was no custody order in place, which may apply if your divorce is not finalized;

Each case is different, and it takes a skilled and knowledgeable San Diego criminal defense lawyer to properly access what is the best option for your situation. If you are facing charges of parental kidnapping, then you need to speak to an attorney immediately. To get started on your case, contact jD LAW at (760) 630-2000 for a free initial consultation.

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Posted in: Criminal Defense

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James N. Dicks
jD LAW, P.C.

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If you feel uncomfortable with an in-person meeting due to the recent surge in COVID-19, our office is offering remote appointments via phone and Zoom. Please call or email us to set up your appointment.

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