This page includes information that is specific to this state, about parental kidnapping, also called custodial interference. There is also a page for general parental kidnapping information that you may find helpful. Custody and kidnapping are particularly complicated and it is important to try to find an experienced lawyer to help you with your case.
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 (e.g., domestic violence or sexual abuse of 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 a 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 Ann.Cal.Fam.Code §§ 3061;3064
2 Ann.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?
Maybe, although it may depend on many factors such as:
- whether or not you have a custody order and what the order says about this issue;
- how long the child is gone;
- which county you are in;
- whether or not you the child is in danger of immediate harm; and
- how strictly parental kidnapping laws are enforced and interpreted in your county.
You can read about the crime of parental kidnapping (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 abduct (kidnap) the child. To determine whether or not there is a risk of abduction, the judge will consider these whether or not the other parent:
- has taken / hidden the child in violation of your custody or visitation rights before or has threatened to do so;
- has no strong ties to California (“ties” could include friends, family, a job, a home, etc.);
- 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 child abduction, here are examples of some of the possible measures that the judge can take to try to prevent the abduction:
- ordering supervised visitation;
- requiring a parent to post a bond as a financial deterrent to abduction;
- restricting the right of the parent that has custody of the child (custodial parent) to move with the child, unless the custodial parent gives notice to, and gets the written agreement of, the parent that does not have custody of the child (non-custodial parent), or gets the approval of the court before moving with the child;
- restricting the right of the custodial or non-custodial 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
- obtaining assurances that a party will return from foreign visits by requiring the traveling parent to provide the court or the other parent or guardian 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; and
- an open airline ticket for the left-behind parent in case the child is not returned.2
1 Ann.Cal.Fam.Code § 3048(b)(1)
2 Ann.Cal.Fam.Code § 3048(b)(2)