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Parental Kidnapping
Can I get temporary emergency custody?
Unless both parents agree that a temporary custody order should be granted, a judge in California can only grant an ex parte temporary custody order if there is a proof of immediate harm to the child or immediate risk that the child will be removed from the state of California.1
It is almost always better to have a lawyer helping you file for temporary emergency custody. For legal referrals, go to CA Finding a Lawyer.
You may also be able to get temporary custody as part of an emergency domestic violence restraining order (DVRO).2 In order to learn under what circumstances an emergency DVRO is issued, please see What types of orders are there? How long do they last?
1 Cal.Fam.Code §§ 3061; 3064
2 Cal.Fam.Code § 6252(b)-(d)
If I take my children to live out of state or hide them from the other parent, can I be charged with parental kidnapping?
Whether you can be charged with parental kidnapping or not may depend on many factors. It is best to get legal advice before leaving to make sure that your planned behavior would not violate the law. You can read about the crime of parental kidnapping, also known as custodial interference, in California on our Selected California Statutes page.
However, if the parent who takes his/her child has a good faith belief that the child, if left with the other parent, will suffer immediate bodily injury or emotional harm,1 that parent can file what is commonly known as a “good faith report” with the district attorney’s office, which may have an effect on whether or not the parent is prosecuted. You can read the exact requirements of what needs to be in the good faith report, the time frame within which it needs to be filed after leaving, and the next steps that the parent needs to take on our Selected California Statutes page.
We strongly suggest that you contact a lawyer who specializes in custody mattes who can evaluate your situation and advise you on whether or not you are at risk of committing the crime of parental kidnapping. Go to CA Finding a Lawyer for contact information.
1 CA Penal Code § 278.7
If I think that the other parent may kidnap my child, can the court help me?
If you are involved in a custody case, it may be helpful to provide as much evidence as possible to the judge to support your concern that the other parent is likely to kidnap (abduct) your child. To determine whether or not there is a risk of kidnapping, the judge will consider whether or not the other parent:
- has taken or hidden the child in violation of your custody or visitation rights before, or has threatened to do so;
- has no strong ties to California, such as friends, family, a job, or a home;
- has strong familial, emotional, or cultural ties to another state or country, including foreign citizenship;
- has no financial reason to stay in this state, including whether the party is unemployed, is able to work anywhere, or is financially independent;
- has planned activities that would make taking your child from the state easier, such as applying for a passport, attempting to get birth certificates or other records, buying plane tickets, closing his/her bank account, selling his/her home, etc.;
- has a history of a lack of parental cooperation or child abuse or has committed domestic violence; and
- has a criminal record.1
If a judge believes that there is a risk of kidnapping, here are examples of some of the possible measures that the judge can take to try to prevent the other parent from taking your child:
- ordering supervised visitation;
- requiring the other parent to keep money with the court (post a bond) that would cover the cost of locating or getting back your child if the other parent kidnaps him/her;
- restricting the right of the custodial parent to move with the child, unless s/he gives notice to, and gets the written agreement of, the non-custodial parent, or gets the approval of the court before moving with the child;
- restricting the right of either parent to remove the child from the county, the state, or the country;
- requiring the surrender of passports and other travel documents;
- prohibiting a parent from applying for a new or replacement passport for the child; and
- ensuring that the other parent will return from foreign visits by requiring him/her to provide the court or you with any of the following:
- the travel itinerary of the child;
- copies of round-trip airline tickets;
- a list of addresses and telephone numbers where the child can be reached at all times; or
- an “open airline ticket” with flexible flight dates for you in case the child is not returned.2
1 Cal.Fam.Code § 3048(b)(1)
2 Cal.Fam.Code § 3048(b)(2)
