SALEM (AP) — Essex District Attorney Jonathan Blodgett is appealing a Superior Court judge’s decision to dismiss a parental kidnapping charge against the Lynn man whose 5 -year-old son disappeared nearly three years ago.

A Blodgett spokesman said Tuesday the decision by Judge John Lu to dismiss the kidnapping charge against Ernesto Gonzalez would be appealed to a higher court.

Lu’s ruling released Monday said Gonzalez cannot be charged with parental kidnapping because there was no court order denying him custody of his son, Giovanni.

Ernesto Gonzalez remains behind bars without bail on a charge of misleading police, a more serious charge.

Giovanni disappeared in August 2008 after a visit to his father. Ernesto Gonzalez told a reporter he killed the boy, but investigators say there is no evidence of that.

(Copyright 2011 by The Associated Press. All Rights Reserved.)