A co-holder of parental rights and responsibilities cannot commit a crime of kidnapping in respect of his or her own child.
According to CR Snyman, the definition of Kidnapping is as follows: “unlawfuly and intentionally depriving of his or her freedom of movement and/or , if such person is a child, the custodians of their control over the child”.
For example, Lets just say that A and B have full parental rights and responsibilities and A is awarded primary care and residential rights and B is awarded rights of contact in respect of the minor child.
Lets just assume that A denies B access to the child and due to B’s fustration as a result of A denying him access to the child, B decides to remove the child from A’s care in order to keep the child in his care.
A cannot report a case of kidnapping against B, however A can report a case of contempt of court against B for infringing a court order.
B on the other hand, can also open a case of contempt of court against A for denying B access to the child.
If A opens a case of kidnapping against B, the State may change the charge from kidnapping to Contempt of Court and B may be found guilty of contempt of court and a sentence may be imposed with an option of fine.
A on the other hand may also be found guilty of the same offence as B for infringing B’s rights of contact in respect of the minor child.
Reference List:
CR Snyman 5th edition