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A number of jurisdictions have recognized that, in the absence of a court order awarding custody to another, a parent cannot be convicted of abduction and other similar crimes by taking exclusive custody of his or her child. See, e.g., State v. Stocksdale, 138 N.J. Super. 312, 350 A.2d 539, 541 (N.J. Super. Ct. Law Div. 1975) (recognizing that, because 'each parent has an equal right to custody of a child in the absence of a court order, a parent does not commit the crime of kidnapping by taking exclusive possession of the child where no such order exists. '). See also William B. Johnson, Annotation, Kidnapping or Related Offense by Taking or Removing of Child by or Under Authority of Parent or One In Loco Parentis, 20 A.L.R.4th 823, § 3 (1983 & Supp. 1998). 


Although this reasoning has been adopted by a majority of courts considering the issue, there is case law to the contrary. See State v. Donahue, 140 Ariz. 55, 680 P.2d 191, 193 (Ariz. Ct. App. 1984) (construing custodial interference statute and, even assuming the defendant father had a right to custody of his child, holding that father's right to ...

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