This case presents the question of whether a parent may be found guilty of second degree kidnapping of his own children when no evidence is introduced showing that his parental rights have been limited by court order or decision. We hold he may not be properly convicted of kidnapping and thereby reverse the trial court.
The facts are not in dispute. Defendant was on an extended furlough from the Washington State Penitentiary at Walla Walla, beginning November 6, 1978. The furlough was limited, and did not include authority to travel to the Omak, Okanogan County, home of his four children, ages 16, 11, 8 and 6. On the evening of November 14, at 11:30 p.m., defendant went to the children's home while their mother was at work. He showed them a document purported to be from the Board of Prison Terms and Paroles granting defendant parole and permission to take custody of the children for 2 weeks. He convinced the children that it was proper for them to go with him to California and to see Disneyland. The family traveled through Washington, *762Oregon and into California where the defendant allegedly engaged in an incestuous relationship with his eldest daughter. On his subsequent arrest and return to Okanogan County, defendant was charged with one count of kidnapping in the first degree "with intent to facilitate the commission of the felony of incest" with the eldest child, and three counts of kidnapping in the second degree for taking the three youngest children.
At trial, defendant moved for a directed verdict on the ground that he could not be found to have "abducted" the children, a material element of the crime of kidnapping because the State failed to introduce any evidence indicating that defendant was without legal authority to have custody of his children. This motion was denied, as was a subsequent motion for arrest of judgment. The jury returned a verdict of not guilty as to kidnapping in the first degree. The defendant was found guilty of three counts of kidnapping in the second degree of the younger children.
I
Kidnapping in the second degree is defined in RCW 9A.40.030 and reads as follows:
(1) A person is guilty of kidnaping in the second degree if he intentionally abducts another person under circumstances not amounting to kidnaping in the first degree.
RCW 9A.40.010(2) defines abduction as the act of "restrain[ing] a person by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly force". "Restraint" is a crucial element of abduction and is defined in RCW 9A.40-.010(1):
(1) "Restrain" means to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with his liberty. Restraint is "without consent" if it is accomplished by (a) physical force, intimidation, or deception, or (b) any means including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and if the parent, guardian, or other person or institution hav*763ing lawful control or custody of him has not acquiesced.
(Italics ours.)
A parent's right to custody of his or her children is fundamental. See In re Myricks, 85 Wn.2d 252, 253-54, 533 P.2d 841 (1975); Schreifels v. Schreifels, 47 Wn.2d 409, 414, 287 P.2d 1001 (1955); In re Neff, 20 Wash. 652, 56 P. 383 (1899). Our legislature has decreed that each parent has an equal right to have custody of the children in the absence of misconduct. RCW 26.16.125. See also In re Hudson, 13 Wn.2d 673, 693, 126 P.2d 765 (1942). Thus, in the absence of a court order, both share the right to custody even if the parents are living apart. See Schreifels, at 414. Although these pronouncements have arisen in the context of custody proceedings, they are equally applicable to the instant case. It appears, then, that a parent, such as defendant, is presumed to have the right to custody of the children.
In this case, there is nothing in the report of proceedings from the trial even intimating that defendant did not have the right to have legal custody of the children. The State introduced no evidence that the mother had sole legal custody of the children or even that defendant and the mother of the children were divorced. Thus, there was nothing on which the jury could base its conclusion that defendant restrained the children "without consent and without legal authority”. (Italics ours.) RCW 9A.40.010(1).
The State counters by claiming that the jury could conclude that defendant was without legal authority to take the children because of his status as an inmate of the state penitentiary and because of his status as an escapee stemming from the violations of his conditions of furlough. The State's argument is unfounded. Imprisonment (nor escape from imprisonment) does not in and of itself automatically deprive the prisoner of his or her legal right to custody. In re Sego, 82 Wn.2d 736, 740, 513 P.2d 831 (1973). See also In re Staat, 287 Minn. 501, 178 N.W.2d 709 (1970). A court may, of course, order permanent child deprivation based on the parent's criminal misconduct. But it is the order of the *764court, and not the mere fact of imprisonment, which in fact deprives the parent of the right to custody.
Therefore, under the circumstances of this case, since the State failed to meet its burden of proof, the trial court erred in submitting the case to the jury. See In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970); State v. Roberts, 88 Wn.2d 337, 562 P.2d 1259 (1977).
We hereby reverse the trial court.
Rosellini, Utter, Hicks, Williams, and Dore, JJ., concur.