Crystal Wright | January 28, 2022 | Child Custody

Can You Kidnap Your Own Child in Georgia?

Yes, under certain circumstances, you can kidnap your own child in Georgia. Parental kidnapping is a common form of child abduction, especially in disputed custody battles. A parent can be prosecuted for parental kidnapping if they take their child from the other parent without legal custody or a court order.

A parent may kidnap their child for a variety of reasons. For example, the parent may believe the child could be harmed or killed if left with the other parent. However, a parent may also kidnap their child to punish the other parent and cause them pain. 

Whatever the reason for parental kidnapping, it is a crime in Georgia that can be punished by decades in prison. 

What is Considered Parental Kidnapping in Georgia?

 Georgia Code §16-5-40 defines kidnapping as:

  • Abducting another person
  • Without lawful authority or warrant
  • Holds that person against his or her will

Kidnapping can be punished with years or decades of imprisonment, depending on the age of the child.

Interference with custody is defined in Georgia Code §16-5-45. A person commits the crime of interference with custody when the person:

  • Recklessly or knowingly takes or entices a child away from the custodial parent or guardian;
  • Knowingly hides a child that has absconded; or,
  • Willfully and intentionally keeps a child past the end of a lawful visitation.

The punishment of interference with custody is a misdemeanor offense for the first and second convictions. A person may serve up to one year in prison for a second offense. The third conviction is a felony that carries a sentence of one to five years in prison. 

Interstate interference with custody is a felony. A conviction for interstate interference with custody carries a one-to-five-year prison sentence. 

Can You Kidnap Your Child if There is Not a Custody Order?

If there is no custody order in place, parents have equal rights to take their child without permission from the other parent. However, if you conceal your child from their other parent, your ex-partner could ask the court for an emergency ex-parte temporary order. In other words, they could ask the court for temporary custody pending a full court hearing.

Judges may grant the order if there is a reasonable belief that you will leave the state with your child or your child is in immediate harm. If the court grants the temporary order and you leave with your child, you could be charged with kidnapping and interference with custody. 

What is the Parental Kidnapping Prevention Act?

Congress enacted the Parental Kidnapping Prevention Act (PKPA) in 1980. It helps resolve jurisdictional issues in parental kidnapping cases and interstate child custody matters. It promotes cooperation between states regarding custody matters. 

The PKPA explains when courts should enforce and honor custody orders from courts in other states. The PKPA recognizes that the child’s home state has initial jurisdiction, and custody orders issued in the home state should be honored by all other states. However, because it is federal law, it overrides state law when there is a conflict between the laws of two states. 

Are There Defenses to Parental Kidnapping Charges in Georgia?

The laws regarding kidnapping your child are strict. If you violate a custody order, you must have strong evidence that you did so to protect your child. 

Protecting your child from imminent harm may be a valid defense against kidnapping charges. Examples of imminent harm could include protecting the child from sexual abuse, physical violence, drug abuse, or a dangerous situation. 

However, if possible, talk with a child custody lawyer before violating a court order. An attorney may file an emergency motion with the court for a temporary order. The court’s priority is protecting the best interest of the child. 

How Do I File Parental Kidnapping Charges in Georgia?

If you have a custody order, contact the police if your child’s other parent kidnaps your child or fails to return your child after visitation. You can ask the police department to enforce a custody order. Give the police as much information as possible about your child and the child’s other parent.

Contact a Lawrenceville family court attorney immediately. A family law attorney can advise you of your legal rights and any actions you can take through the family court. Parental kidnapping cases can be complicated; it helps to have an experienced child custody attorney guide you through the process of pursuing parental kidnapping charges.

To learn more and get the help you deserve, call our divorce & family law firm at (404) 594-2143 or reach out to Crystal Wright Law online by visiting our contact us page.
You can also visit our law firm at 440 S. Perry Street Suite 105, Lawrenceville, GA 30046.