Interfering with another adult’s custodial rights could result in criminal charges.
When most people think of kidnapping, they likely consider a child being snatched up from a playground, or perhaps a dramatic abduction from a bedroom in the middle of the night. They likely don’t consider a situation where a parent takes a child from another parent. Yet this type of “kidnapping” — referred to in California as custodial detention — is fairly common.
Under California law, it is a crime to maliciously deprive another adult of his or her right to custody of or visitation with a child. Although it isn’t always the case, custodial detention is often committed by a person who has custodial or visitation rights. This may include a parent, grandparent, foster parent or another person who had a custodial relationship with the child at some point in time.
This situation can happen in any number of ways. Perhaps the most common occurrence happens when a couple has divorced or otherwise broken up, and share custody of their children. One parent may decide to not return the kids to the other at the end of their visitation or custodial period — potentially even going as far as to leave the area, state or country with the kids. If that happens, this parent could be charged with the crime of custodial detention.
Another way that the crime could happen is a mother is arrested for a crime, and gives a friend or family member temporary custody while she serves a jail sentence. When the mother is released, if that person refuses to relinquish custody, he or she could be charged with custodial detention.
Custodial detention is a wobbler, which means that it can be charged as a misdemeanor or a felony offense. A misdemeanor conviction for custodial detention may result in imprisonment for up to one year in county jail, and/or a fine of up to $1,000. Felony custodial detention may result in imprisonment of up to three years, and/or a fine of up to $10,000.
An experienced criminal defense attorney in Riverside, CA can explain that custodial detention charges often arise in connection with divorce cases. Fortunately, there are numerous potential defenses available to this charge. For example, if the person alleging custodial detention did not actually have custody or visitation rights (perhaps if the custody issues had not yet been settled in the divorce), then a skilled criminal defense attorney in Riverside, CA can use this fact to argue for the charge to be dropped. If you did not act maliciously, that may also be a defense. For example, if you were on vacation and you car broke down on the way home, which made you 5 hours late for the custody hand-off, then you did not maliciously deprive your ex of custody. Finally, if you were acting to protect a child from physical or emotional harm, that may be justification for custodial detention. There are specific requirements that must be met for this defense to be used, as follows:
- The defendant must have a right to custody of the child;
- Within a reasonable time (10 days or less) after committing a potential act of deprivation of custody, the defendant must make a report to the DA of the county where the child resided before the action, containing the defendant’s name, his or her current address, and the reasons why he or she took or kept the child;
- Within a reasonable time (30 days or less) after committing a potential act of deprivation of custody, the defendant must file a custody proceeding in court; and
- The defendant must keep the district attorney’s office informed of any change in his or her address or phone number.
If you have been charged with custodial detention, you will need a seasoned criminal defense attorney in Riverside, CA to represent you. Contact the Chambers Law Firm today at 714-760-4088 or dchambers@clfca.com to schedule a free initial consultation and learn more about how we can help you.
