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Georgia Parental Kidnapping Laws

by Sharon Jackson  on May 2, 2023 under 

It’s surprisingly common for a divorced parent to be accused of kidnapping their child. Some moms or dads may deliberately abduct their child out of self-interest or resentment for the other parent. But many other parents face criminal consequences simply because they weren’t clear on child custody rules. If you and your ex-spouse are under a child custody order, it’s crucial to understand parental kidnapping laws to prevent serious repercussions. If this post leaves you with questions, call our office today.

Georgia Laws on Parental Kidnapping and Custodial Interference

Georgia Code section 16-5-40 defines “kidnapping” as taking or keeping a person against that person’s will and without lawful authority. This is a felony in Georgia, with the minimum penalty being 10 years in prison and heaviest being life imprisonment or a death sentence. With such severe potential punishments, allegations of child kidnapping by a family member should not be taken lightly.

There is, however, a lighter type of crime in Georgia called interference with custody, also known as custodial interference. Under Georgia Code section 16-5-45, interference with custody is any of the following:

  • Unauthorized taking of a child from their lawful custodian
  • Harboring a child who has absconded (run away), except if you are a service provider who notifies the child’s guardian
  • Intentionally keeping a child past the visitation period.

Custodial interference is a misdemeanor for first and second offenders, punishable with up to a year in prison and $1,000 in fines. For third-time offenders, the crime rises to a felony with a maximum prison sentence of five years. It’s also a felony for a parent to take a child across state borders without legal permission, even if it’s the first offense. In Georgia, this is called “interstate interference,” punishable with up to five years in prison.

Difference Between Parental Kidnapping and Custody Interference

The main difference between kidnapping and custodial interference in Georgia is that kidnapping is against the victim’s will. People may mistakenly accuse someone of parental kidnapping even if it is simply a case of interference.

Note that there are many nuances that can shift the offense from custodial interference to child kidnapping, or vice versa. For instance, is it kidnapping if the child prefers to stay with the non-custodial parent? What if the non-custodial parent picks up the child from school because the other parent is late? The best way to answer questions like these is to discuss the specific circumstances with a family law attorney.

In addition, if the child is taken out of state, federal laws such as the Parental Kidnapping Prevention Act may apply. Consult a child custody attorney immediately if you suspect your child has been abducted or if you are accused of parental kidnapping.

What to Do If Your Child is Taken By the Other Parent Without Permission

If your ex-spouse keeps your child long past visitation hours, or if they move out of state without the court’s permission, you’ll want to take these steps to address a potential abduction:

    • Speak with the other parent, if possible. It may help to clarify the situation first and see if it can be resolved between the two of you. Document any communication you have with the other parent, in case you need this kind of evidence later.
  • Call the police. The police department can enforce a child custody order. Provide them with as much information about your child and the other parent, as well as details of your last child exchange.
  • Contact an attorney. An experienced child custody attorney can help you with your legal options such as getting an emergency protective order. You can also speak with your lawyer about getting the child custody order modified for safer visitations in the future. For instance, you may ask the court to make visitations supervised instead of leaving the child alone with the other parent.

What to Do If You’ve Been Accused of Kidnapping Your Child

Whether it’s parental kidnapping or custodial interference, you need a solid defense if your ex-spouse is alleging you’ve violated a custody order. Contact an attorney as soon as possible to safeguard your rights. These are some defenses against kidnapping or custody interference allegations:

  • You were trying to protect your child from domestic violence or abuse.
  • Circumstances beyond your control prevented you from returning the child to the other parent.
  • You have the other parent’s written consent to take the child with you at the time of the alleged kidnapping.

What If The Child is Taken Without a Custody Order?

Our discussion above applies only when there is a child custody order in place. Without a custody order, the rules on whether or not a parent can take their child will depend on the situation:

  • If the parents are married to each other, they both have equal rights as custodian of the child. Neither of them needs legal permission to take the child somewhere. However, if one parent takes the child out of state or out of the country, there may be grounds for a kidnapping case. Consult a lawyer in this scenario.
  • If the parents are not married to each other and the father has not legitimized the child as his, the mother gets child custody by default. She has sole authority on where she wants the child to be, while the dad does not have legal parental rights. If the dad takes the child without the mom’s express consent, it will be considered kidnapping.
  • If the parents are not married to each other but the father has legitimized the child, both parents have equal custodian rights, just as if they are married.

Contact a Georgia Child Custody Attorney

Child custody laws can get confusing, but parents must navigate these laws with clarity and certainty. Breaching a custody order may result in criminal penalties, even if it’s due to an innocent mistake. Don’t hesitate to speak to a lawyer about parental kidnapping concerns. Attorney Sharon Jackson provides sharp legal guidance and representation in child custody issues, and has been trusted in Gwinnett County for over 20 years.

Schedule your consultation with Attorney Jackson. Call (678) 909-4100 today.


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