To many people, the idea of being arrested for kidnapping their own child sounds shocking, bizarre, and even laughable. However, parental kidnapping is a valid criminal allegation — and it’s no joke for the defendant. On the contrary, this is an extremely serious charge which can result in a felony conviction, a permanent criminal record, and even life in prison. In this blog entry, criminal defense attorney Darwin Overson will explain the legal consequences, your possible defenses, and the differences between kidnapping and interfering with child custody.
Parental Kidnapping vs. Custodial Interference
Utah’s legal term for parental kidnapping is child kidnapping. It’s important to distinguish between child kidnapping, which is always treated as a high-tier felony, and custodial interference, which is usually graded as a misdemeanor.
Child kidnapping is addressed by Utah Criminal Code §76-5-301.1, which holds that you are guilty of this offense if you “intentionally or knowingly, without authority of law… seize, confine, detain, or transport a child under the age of 14 without the consent of the victim’s parent or guardian.” Child kidnapping may be committed by the child’s own parent, or by any other adult with or without biological ties to the victim.
Utah’s custodial interference laws can be found at §76-5-303. In contrast to child kidnapping, which does not necessarily involve child custody or divorce (or even a biological relation), custodial interference specifically refers to “tak[ing], entic[ing], conceal[ing], detain[ing], or withhold[ing] the child from the person entitled to visitation,” i.e. the other parent.
Custodial interference is typically graded as a Class B misdemeanor, punishable by a $1,000 fine and six months in jail. However, it becomes a Class A misdemeanor if you were convicted of custodial interference at least twice during the previous two years. Class A misdemeanors can trigger a $2,500 fine and up to one year in jail.
If you took your child out of Utah, the offense becomes a third degree felony, which is punishable by up to five years in prison and $5,000 in fines.
But as devastating as the penalties for custodial interference can be, the consequences of a child kidnapping conviction are even worse. This offense is always a first degree felony, the most serious grading short of aggravated murder, and comes with a minimum 15-year sentence which can extend to life in prison without the possibility of parole.
The Utah Kidnap Offender Registry
Almost everyone is familiar with the idea of the Sex Offender Registry — but did you know there’s a Kidnap Offender Registry as well? The overlap between these two registries can present significant social and professional obstacles for any person who is placed on the Kidnap Offender Registry.
Like the Sex Offender Registry, the Kidnap Offender Registry differentiates mandatory registration periods by underlying offense. In other words, some types of kidnapping result in longer registration periods than others. Persons convicted of kidnapping must register for 10 years, while persons convicted of child kidnapping or aggravated kidnapping must register for life.
Once you are placed on the Registry, you must comply with all requirements for registered offenders. These requirements are extremely restrictive and impose very strict rules on many parts of daily life. Registrants may be ordered to submit to lie detector tests, refrain from entering certain public places, participate in therapy, and comply with other requirements.
Are There Any Defenses Against My Charges?
While kidnapping minor children is an extremely serious criminal allegation, you may be able to use certain defenses against the charges. The potential defenses against kidnapping charges are outlined by §76-5-305, which allows for the following three defenses to be used where applicable:
- You were “acting under a reasonable belief that” the alleged kidnapping was necessary in order to protect your child from imminent injury or death. This defense may be relevant if you were trying to protect or rescue your child from being harmed by an abusive spouse, former spouse, step-parent, or the romantic partner of a former spouse. However, keep in mind this defense specifies imminent injury or death.
- You were “acting under a reasonable belief that” that your actions were within the bounds of the law. Bear in mind that simply asserting ignorance of the law is not sufficient as a defense. The “reasonableness” of the belief must be determined by the court — not the defendant.
- You were “acting under a reasonable belief that” if your child’s guardian, legal guardian, custodian, or custodial parent had been present, he or she would have consented to what you were doing.
If you’ve been accused of child kidnapping or interfering with child custody, contact the attorneys of Overson Law, PLLC to explore your options in a free and confidential case evaluation. To speak with a Salt Lake City criminal defense lawyer Darwin Overson, call (801) 758-2287.