is it Kidnapping to Pick Up a Child From His Home at the Child's Request?

Full question:

If both you and ex-wife are co-guardians of a 19 year old son with a disability and you go to the home where he resides with his mother because he asked you to pick him up, is it legal to be given a summons for abduction when he walked out of mother's house of his own volition? His mother is a detective on the County Sheriff's Department and there is NO restraining order against me to be on the property. She had police friends give me a summons. Thank you...

• Category: Criminal
• Date: 04/07/2025
• State: Virginia

Answer:

The answer will depend on all the circumstances involved, such as your right to custody. We are prohibted from giving a legal opinion, as this service provides information of a general legal nature. Generally, a child under a parent's custody doesn't have the right to determine where he lives, so his wishes will not necessarily negate an abduction charge. We suggest you consult a local attorney who can review all the facts and documents involved.

Please see the following VA statutes:

§ 18.2-47. Abduction and kidnapping defined; punishment.
—

A. Any person who, by force, intimidation or deception, and
without legal justification or excuse, seizes, takes,
transports, detains or secretes another person with the
intent to deprive such other person of his personal liberty
or to withhold or conceal him from any person, authority or
institution lawfully entitled to his charge, shall be
deemed guilty of "abduction."

B. Any person who, by force, intimidation or deception, and
without legal justification or excuse, seizes, takes,
transports, detains or secretes another person with the
intent to subject him to forced labor or services shall be
deemed guilty of "abduction." For purposes of this
subsection, the term "intimidation" shall include
destroying, concealing, confiscating, withholding, or
threatening to withhold a passport, immigration document,
or other governmental identification or threatening to
report another as being illegally present in the United
States.

C. The provisions of this section shall not apply to any
law-enforcement officer in the performance of his duty. 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.

D. 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. However, 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.

§ 18.2-49.1. Violation of court order regarding custody and visitation;
penalty. —

A. Any person who knowingly, wrongfully and intentionally withholds a
child from either of a child's parents or other legal guardian in a clear
and significant violation of a court order respecting the custody or
visitation of such child, provided such child is withheld outside of the
Commonwealth, is guilty of a Class 6 felony.

B. Any person who knowingly, wrongfully and intentionally engages in
conduct that constitutes a clear and significant violation of a court
order respecting the custody or visitation of a child is guilty of a
Class 3 misdemeanor upon conviction of a first offense. Any person who
commits a second violation of this section within 12 months of a first
conviction is guilty of a Class 2 misdemeanor, and any person who commits
a third violation occurring within 24 months of the first conviction is
guilty of a Class 1 misdemeanor.