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Interference with child custody is not the same as kidnapping

Authorities in all jurisdictions, including in California, tend to apply criminal charges such as kidnapping somewhat indiscriminately today in connection with custody disputes. Thus, for example, where a father hides with a child after the court has awarded child custody to the mother, the authorities will hunt down the father and, in many instances, arrest him for criminal kidnapping. It should be pointed out that the violation of the custody court in this manner is gender-neutral and is committed by both mothers and fathers.

One state court has confronted the issue and ruled that such acts will not generally stand as a predicate to establish the felony crime of kidnapping against a biological parent. The highest appellate court in that state ruled in a case where a father concealed the whereabouts of himself and his daughter after the issuance of a court order awarding custody to the grandmother. The man was found and arrested, and his daughter was turned over to the grandmother.

The authorities arrested the man for interference with custody as well as criminal kidnapping. The Pennsylvania Supreme Court ruled that proof that a parent interferes with child custody is not proof of kidnapping. In essence, the Court reasoned that the specific kind of criminal intent required to commit the felony of kidnapping was not established by the offense of a biological parent interfering with child custody. In discussing the Model Penal Code, the Court pointed out the authors of that statute agreed that interference by a parent and criminal kidnapping were mutually exclusive.

The recognition that kidnapping is a crime that is different in its basic nature from the offense of a parent interfering with child custody is a logical and realistic interpretation of the two provisions. Far more egregious circumstances will have to be present to find that a parent who interfered also intended to commit the felony of kidnapping. It is reasonable under these factual circumstances to conclude that the California Supreme Court would rule in a similar manner.

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