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Is Taking My Child from My Ex Without Consent Considered Kidnapping?

Posted by William Aron | May 28, 2021 | 0 Comments

is taking my child from my ex without consent considered kidnapping

The word “kidnapping” typically emits scary thoughts and images, many of which have been brought about through movies, television shows, and even terrifying real-life news stories. When we think of a kidnapper, we often consider dangerous criminals who abduct children and hold them captive. However, not all kidnappers are strangers lurking in the dark. In fact, it's not unusual for parents to kidnap their own children without even realizing it, leading to what's referred to as a “parental abduction” or “parental kidnapping.” In fact, in 49 percent of kidnapping cases, the accused is related to the victim. 

The most common root cause of parental kidnapping occurs when parents who no longer have legal custody of their child intentionally take that child from their partner. While this may not seem like such a big deal—especially if you have good intentions—the law in California is unambiguous: If you withhold a child from their lawful custodian or legal guardian, it's a crime, even if you're the child's biological parent.

What Defines Parental Kidnapping?

California Penal Code Section 278 states that a parent, family member, or any person without legal custody who takes or hides a child with intent to keep the child from their legal guardian is guilty of a crime. The statute also states that it's also unlawful for one parent to deprive another of their custody right or deny visitation rights, which is known as “interference with child custody.” This means that it's possible to be charged with parental abduction even if you have joint custody. Moreover, even if you're granted sole custody, you may still be convicted.

To convict an individual of this crime, the prosecution must prove the following elements beyond a reasonable doubt:

  • You maliciously took, kept, enticed away, withheld, or concealed a child from their lawful custodian
  • You intended to conceal or detain the child from their lawful custodian
  • You didn't have the right to custody of the child when you acted
  • The child was under the age of 18

It's important to note that there's an exception to the rule if you have a reasonable belief that your partner is likely to inflict immediate bodily injury or emotional harm to the child. In this case, you can't be convicted of a violation of PC 278.5 as long as you report to the District Attorney's (DA) Office that you took the child, inform the DA of the child's up-to-date contact information, and file for custody consistent with the Parental Kidnapping Prevention Act and Uniform Child Custody Jurisdiction Act.

How May a Defense Attorney Help If You're Facing Parental Abduction or Kidnapping Charges?

Defense attorneys use varying strategies to oppose charges under PC 278. These include showing the following:

  • The defendant had legal custody of the child
  • The defendant didn't act maliciously
  • The accused took the child from a person who was not the child's legal custodian

Your lawyer may also be able to show that you're the victim of false accusations.

Can You Travel Abroad with Your Child?

Even if you share parental responsibility with your ex and don't have child arrangements or restrictions, it's important to note that you still can't go abroad with the child without their consent. If you're found to have done so, you may be charged with international parental kidnapping. If your co-parent can't give you written permission, you may apply to the court to permit you instead. Make sure to submit the application months before the scheduled travel date, as it may take some time to be granted.

Contact an Experienced Kidnapping Defense Lawyer at The Aron Law Firm

No matter your intentions, there are serious penalties in California for taking or hiding your child from their legal guardian. To discuss defense strategies with one of our Santa Barbara criminal defense lawyers, contact the Aron Law Firm today. Our seasoned attorneys are committed to protecting your rights by investigating your case in detail and building a strong defense. Our legal team is well-versed in California kidnapping defense laws and may help you avoid the consequences that stem from this accusation. 

At the Aron Law Firm, we have experience helping clients with a variety of criminal charges. We want to make the legal process as straightforward as possible. To speak with a seasoned criminal defense attorney, schedule a consultation by calling (805) 618-1768 or completing our online contact form today.

About the Author

William Aron

Our firm is managed by William M. Aron. William M. Aron is a graduate from the Duke University School of Law and an active member of the California State Bar Association. While at Duke University, Mr. Aron also earned an M.A. in Psychology, authoring a paper examining the efficacy of polygraph e...

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