Numbers are funny things. Take felonies and misdemeanors in Virginia, for example. If you do not know the difference between felony and misdemeanor, the worst possible way to learn this is by kidnapping your own child. Not only can you be accused of kidnapping your own child, you can be found guilty of it, too. A Virginia Class 4 felony1 can lead to a $100,000 fine and from two to ten years in jail. A Class 4 misdemeanor2? No jail; $250 fine. The number is the same; the severity is very different. It’s a little like playing Wheel of Misfortune, and it’s obviously terrible for your custody arrangement.

Parental Kidnapping in Virginia … a Class 5 Felony

Under Virginia law, abduction and kidnapping are the same thing. You can find this in Code of Virginia 18.2-47:

…The terms “abduction” and “kidnapping” shall be synonymous in this Code. Abduction for which no punishment is otherwise prescribed shall be punished as a Class 5 felony.

The punishment for a Class 5 felony is one to 10 years in jail and a $2,500 fine. If your intent in kidnapping your own child is to spend formative years together, imagine the fun the two of you will have through the visitor’s room glass at Virginia Beach Correctional Center.

So how do you know if you are guilty of kidnapping your own child? Try this test:

  1. Is a court order in place? If yes, proceed; if not, you are not guilty of kidnapping
  2. Does your ex-wife have sole custody? If yes, proceed; if not, you are not guilty of kidnapping
  3. Did you take your child without the permission of the person having sole custody? If yes, proceed; if not, you are not guilty of kidnapping

If you answered yes to the previous three questions, you are guilty of kidnapping

Removing a Child from Custodial Care

When a court has decreed that your ex-wife (or relative, or whomever) has sole custody of your child or children, you cannot do anything to remove that child or those children from that person’s custodial care. The law is exquisitely detailed about what constitutes “anything,” laying out the fine points:

  1. Force
  2. Intimidation
  3. Deception
  4. Seizure
  5. Taking
  6. Transporting
  7. Detaining
  8. Secreting
  9. Withholding
  10. Concealment

Intimidation, the Code of Virginia takes pains to spell out, includes destroying, concealing, confiscating, withholding or threatening to withhold a passport, government identification or immigration document.

You do not want to mess with Immigration and Customs Enforcement (immigration documents), the State Department (passports), or the Virginia Department of Social Services. They may seem like bumbling goofs in television shows, but federal and state agents are not to be taken lightly. Even the federal Animal and Plant Inspection Service has gun-toting agents.

Out of State = Out of Your Mind

We do not wish to sound too blunt about this, but you really have to be out of your gourd to cobble together a scheme to take your child out of Virginia in the midst of a divorce proceeding. It is not only crazy, but it’s also explicitly against state law:

…such offense, if committed by the parent of the person abducted and punishable as contempt of court in any proceeding then pending and the person abducted is removed from the Commonwealth by the abducting parent, shall be a Class 6 felony in addition to being punishable as contempt of court.

We look on the ol’ scoreboard for a Class 6 Felony conviction: you win one to five years in jail and a $2,500 fine!

But Doesn’t Virginia Have a Soft Spot for Parents?!

You notice that the Code of Virginia has a soft spot for the stressed-out Dad (or Mom). Subsection D of that same law, 18.2-47, says:

If an offense under subsection A is committed by the parent of the person abducted and punishable as contempt of court in any proceeding then pending, the offense shall be a Class 1 misdemeanor in addition to being punishable as contempt of court. 

A Class 1 misdemeanor carries a maximum of one year in jail and a $2,500 fine (not in any way ignoring the contempt of court charge). Not great, but definitely a lighter charge.

Good Advice: Ask a Lawyer about Your Child Custody Quandaries

If your ex-wife accuses you of kidnapping your child, tread very carefully. What you perceived as picking your kid up from school, or surprising her with a trip to the zoo, could in fact be viewed as kidnapping. If you claim you cannot find her passport, or your 17-year-old son’s driver license ends up in the seats of your car, you can be accused of kidnapping. What you view as an unintentional oversight can land you in very hot water—or even state prison.

Your best course of action is to speak with a custody and visitation lawyer from The Firm for Men. Call our offices at 757-383-9184 to schedule a consultation. We can advise you on what to do in the face of kidnapping charges, even for your own child.


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