Cases of child abduction are always distressing. Sometimes law-abiding citizens could find themselves in legal difﬁculties because of a false accusation, misunderstanding, or a scenario that's more complex than it appears.
When you or a loved one you know has been accused of the abduction of a child, you should contact a criminal defense lawyer quickly. Even though criminal charges have not been made, being accused of abducting a child can harm you personally and professionally.
We at Riverside Criminal Defense Attorney Law Firm will assist you in defending your rights and reputation in the public eye so that you can return to your normal life. We serve clients in Riverside, California.
An Overview of California Child Abduction Laws
Abducting a child is prohibited in California, even though you are the child's biological parent. Child abduction is defined by California PC 278 as the malicious or illegal taking of a child from his or her parent or legal guardian who has legal and physical custodial rights.
Penal Code 278's main objective is to shield parents and guardians from the stress of having their child taken away against their will by somebody else or even the other parent.
Because the child is cared for by a parent or guardian, you are committing a crime against that guardian or parent, not the child. You are legally responsible when you abduct a child, even when the child in question did not resist or let you take him or her away.
Elements of a Child Abduction Offense
A prosecutor must prove that certain elements in a child abduction case were true for them to convict you of a criminal offense. These are referred to as "elements of the offense." There are four elements of crime listed in California PC 278:
- You maliciously seized or held the minor from their rightful custodian. The key phrase, in this case, is "maliciously," as the prosecutor must show that you intended to interfere with, deceive, or hurt somebody else
- The abducted child was below 18 years. If the purported victim was above the age of 18, this case could be regarded as a kidnapping or unlawful imprisonment
- You didn't have custody over the child when you committed that act
- You planned on detaining or concealing the child from his or her parent or guardian. In other terms, you intended to deny the child of communication with their lawful custodian or guardian when you acted
It's worth noting that you must be found to have removed a child from their legitimate caretaker on purpose and maliciously. You cannot be found guilty of child abduction if the incident occurred as a result of an accident or a misunderstanding.
Terms and Definitions
The following are some of the most commonly used legal phrases in child abduction proceedings.
Acts that are said to be malicious occur when you commit an act in a way that causes harm or anger to another person.
This is the act of instilling a desire in a minor and persuading them to obey your orders. It is not necessary to employ force to take the child away in this situation.
This is the act of restraining a child from going back to his or her legal guardian or parent. If you possessed the intention to detain that child, you'll be convicted under Penal Code 278.
Rights to Custody
These are the legal rights that a legal guardian has to provide bodily care and supervision over a child. Custody is granted to a parent or legal guardian when:
- Custody is granted by an order of the court
- He or she is the child's biological parents, and the court of law has not taken away their custodial rights
The court can sometimes take away a biological parent's custody rights. Custodial rights are then transferred to another, such as a community organization or a legal guardian.
When the court takes away your rights, your child's other parent or your partner could be allowed to keep them. You also can lose your custodial rights when you have refused custody of your child or when you have abandoned your children.
The Difference Between Abduction and Kidnapping
Kidnapping is often confused with abduction. According to California laws, kidnapping offenses carry more stiff consequences than the crime of abduction.
Kidnapping is defined in California PC 207 through 209.5 as the unlawful removal of another person to a new location without their consent. Kidnapping, unlike abduction, entails forcing the victim to accompany you. Abducting does not necessitate the employment of coercion or force.
While cases of child abduction entail the detention of minors under the age of 18, kidnapping is an offense perpetrated by a person of any age. It's worth noting that when the victim is under 14 years of age, the penalties for kidnapping offenses are much more severe.
Another element of a child abduction crime is that it does not necessitate the relocation of the child to a new place. You could be charged with abduction if you hide the child where their legal guardian can't find them. Kidnapping, on the other hand, necessitates transporting the kidnapped person to another region against their will.
Is it Possible For a Parent to Abduct their Child?
If a parent entices and hides their child, they can be charged with child abduction under California's penal codes. The abduction could lead to a breach of the orders of the court on visitation as well as custodial rights over the child.
There are a variety of reasons why someone, as a parent, can take their child away. These are some of them:
- You would like to be more present in the child's life, and you wish for them to be reliant on you as a parent
- You want to take away the other parent's right to bring up your child
- You're worried that the child's other parent will expose your child to undesirable conduct or indoctrinate certain values on him or her
- Your main motivation for abducting your child was to keep in touch with them or force a reconciliation with your former spouse
- Your main goal was to protect your child from the other parent's threat of physical or psychological abuse
- You could abduct the child in retaliation for something your partner did to you, or for revenge
- You can abduct the child since you're worried about losing custody over him or her
- You assume your issues are comparable to those of your partner and assume that he or she could bring harm to the child
The Penalties and Consequences of a California Child Abduction Sentence
Child abduction is classified as a wobbler under California laws. In this case, the jury could decide on whether your Penal Code 278 charge is a misdemeanor or a felony. Before they can make a decision, the jury must evaluate your past criminal record as well as the details of the case.
If you have been found guilty of a misdemeanor, you face a maximum sentence of one year in county jail, maximum fines of a thousand dollars, or both.
If you are charged with a felony child abduction offense, you could face the following penalties:
- One year in county jail, as well as a probation term
- A maximum fine of $10,000
- A two-year, three-year, or four-year sentence in state prison
In addition to the potential penalties listed above, if you are found guilty of child abduction, you must pay the complainant and cover the costs used in locating and returning the child.
Aggravating Factors in Child Abduction Cases
When deciding what sentence to issue for the child abduction offense, a California court will consider any present aggravating factors. The factors are also used by jurors to determine whether your crime is a misdemeanor or a felony.
The aggravating elements listed in California Penal Code 278.6 are as follows:
- The child's age when you committed the offense
- Was the right to get an education violated as a result of abducting him or her?
- Did you alter the child's outward appearance after you abducted him or her?
- Have you ever been accused of abducting a child or have you had the intention to kidnap that child?
- Did you undertake any exceptional efforts to bring back the child to their legal guardian or the parent with custodial rights?
- Did you move the minor outside the United States?
- Was the abducted child harmed or mistreated following the act?
- Did you inflict bodily harm on the legal custodian?
- Was the child threatened with physical injury or illness?
Mitigating Factors in California Penal Code 278.6
Although the prosecutors can present aggravating elements in the child abduction case, the jury should take into account certain mitigating circumstances presented by your defense counsel.
Various mitigating considerations can be presented by the criminal defense attorney, such as:
- You provided reliable information and help, which led to the child's safe return
- You brought back the child with no injuries before you were arrested
Legal Defenses for California Penal Code 278 Charges
There are valid defenses for California child abduction charges under Penal Code 278. Charges of child abduction are not a rare occurrence.
The consequences are significant for both your rights as well as the child's well-being. Fortunately, the good news is that you can hire a professional criminal defense lawyer to assist you in getting the charges lowered or dropped. The following are possible defenses to a violation of California PC 278:
There are no Existing Court Orders
The law enforcement agencies can only indict you when a court order emerges forbidding you from having contact with the child.
If the judge hasn't removed either parent's custodial rights, you as well as your co-parent enjoy the same rights to have custody of the child. Also, if you are the biological parent of a child and your custodial rights have not been terminated, you can, for example, take the children with you for an entire weekend.
When the other parent accuses you of abduction even when you have custodial rights, you should seek legal advice.
A Case of Emergency
Abducting your child once the judge has terminated your custodial rights is a criminal offense. However, in some circumstances, your charges may be lowered or dismissed, such as when:
- You were concerned that your child was in danger
- You decided to take your child from the presence of the other child during an incident of domestic violence
You disobeyed the court's order to concede the child due to unavoidable circumstances. You then decided to go ahead and notify the parent or guardian with custody of the child after 24 hours of your time allocated with your child had expired.
You Were Entitled to Custody of the Child
If you have legal custodial rights, you do not require your spouse's permission to take your children or child at any point in time. However, California law prohibits you from withholding your child with malice or for illegal acts.
For example, following an argument with your partner, the likelihood of violence erupting is considerable. When you take your child without the approval of the other partner and take him or her to another family member, the court will not charge you with child abduction. For this case, still have the choice of not informing the other parent of your child's whereabouts provided your child is not harmed.
You could face serious charges when the child suffers any injuries, when he or she is subjected to psychological torture, or when you fail to provide your child with adequate protection, food, housing, or clothes after you have taken them away from the presence of the other parent with custody rights.
You Took the Child From Someone Who Didn't Have Custody Rights
When you took the child away from the child's other parent who has no custody rights, the court cannot hold you accountable for infringing California Penal Code 278. However, based on the circumstances, the judge could charge you with the offense of kidnapping.
Your partner could take the child and leave him or her under the supervision of a neighbor after running away following an incident of domestic violence. You are not committing the offense of child abduction when you take your child from the said neighbor.
You Had No Malicious Intent When You Took Away the Child
A key element of the crime for a child abduction lawsuit is malicious intent. As a result, the prosecutors must show in court that you possessed malicious intent when you took the child from their legal guardian.
You infringe Penal Code 278 when you take the child from their legal guardian since you believe there is a threat of harm. When it comes to legal defense, self-defense is the best option in this case. You'll need the help of a good lawyer to show that you were thinking about the best interests of the child. However, if you intended to disturb your partner, who has custodial rights, you will be charged with child abduction.
Another thing to keep in mind is that this valid defense works when the child was hidden until you were arrested. If you abducted the child as a result of an impending threat to the child, you should inform the law enforcement authorities or the children's rights office.
The Claimant Accused You of Falsely
Mistaken identity, as well as false allegations, are the most effective defenses against child abduction. If the complainant falsely accused you or law enforcement mistook you for somebody else, it will be presumed that you are innocent.
False allegations are widespread throughout divorce proceedings. For example, if you and your former partner are going through a divorce process, the juror will award rights to custody of the child to one of you. Even though you took your child in good faith, your ex-spouse can falsely accuse you of abducting the child to get revenge.
People can sometimes resemble each other, and your physical traits may reflect those of the at-fault individual. In this case, if you have been arrested, you will have nothing to answer because you are not the one who is to blame.
Lack of Sufficient Evidence
In court, the prosecutors must provide sufficient and convincing proof against the offender. The jury cannot find you guilty of child abduction when the aspect of adequate proof has not been met.
If you hire a good criminal defense lawyer, you may rest easy knowing that if the authorities present inadequate evidence in the trial, you will be acquitted.
It is important to note that when you abduct a child, you are committing an offense against the child's legal guardian or a parent, not that child. As a result, even though your child, because of their love for you, voluntarily accompanies you following the revocation of your parental rights, you are guilty of child abduction.
Applicable Evidence for your Legal Defense Strategy
Domestic abuse and divorce cases are both emotionally draining. The prosecutors could charge you with the abduction of a child for revenge or even remove you from that child's life. Although legal defenses are available, for the best results, you need actual evidence to back up your claim. You could provide the following proof in court:
- Eyewitness accounts. These comprise testimonies from members of the family as well as close acquaintances of the family
- An audio or video documentation of the event
- Evidence presented by the complainant in previous prosecutions, such as drug addiction, mental problems, and criminal background
- Documents containing directives from a family court
- The complainant's Facebook messages, emails, or voicemails
Exceptions to Child Abduction Crimes
All states have laws in place to protect their citizens' rights. As a result, even when spouses argue, get divorced, or become victims of domestic abuse, child abduction statutes guarantee that children's welfare is safeguarded.
Because you have a stronger bond with and knowledge of your child, the court will allow you to breach the statutes in a select few cases. However, you must show that you broke the law in the best interests of your child.
Therefore, if you fear that the other parent with custodial rights would harm your child for whatever reason, the court will not be able to convict you of child abduction. However, the law compels you to take immediate action and record these incidents as early as you take your child.
All that's needed is for you to:
- Report the matter to the District Attorney's office declaring that you took the child away
- Use the Parental Kidnapping Act and submit a consistent custodial order
- Use the Uniform Child Custody Jurisdiction Act as well, and petition for custody consistent
- Inform the District Attorney of the child's current whereabouts
Charges Related to Child Abduction
The prosecutors can charge you with other similar offenses along with or as an alternative for PC 278. These are some of them:
Deprivation of Custody — Penal Code 278.5
The main difference between Penal Code 278 and Penal Code 278.5 is that the first focuses on parents or individuals who do not have custodial rights over the abducted child, whereas the latter encompasses even parents who do have custodial rights over the child.
When you infringe the visitation and custodial rights of the other parent, you will be prosecuted with deprivation of custody. Penal Code 278.5 is prosecuted as a wobbler as well as a less serious offense than Penal Code 278.
Loitering at a School — Penal Code Section 653 (b)
Penal Code 653 (b) can be used instead of or along with Penal Code 278 by the prosecutors. The offense of loitering at a school happens when you spend long periods in settings where children congregate, such as a school or at a playground, with malicious intent or without a valid cause.
Penal Code 653 (b) is a misdemeanor. However, if you've been accused of alleged child abduction, your attorney could be able to help you get the charges reduced.
False Imprisonment —Penal Code 236
When you deprive another person of their rights to freedom, you are said to have committed the offense of false imprisonment. PC 236 is a misdemeanor in California. However, if you restrain the victim through deception or force, the offense becomes a felony. The same would be true for minors who are unable to be resistant to imprisonment. You also commit this crime when you deceive the parent or legal guardian who has custody rights.
Find a Riverside Criminal Defense Attorney Near Me
Being accused of child abduction can be a harrowing experience. However, the Riverside Criminal Defense Attorney Law Firm is here to assist you. If your matter gets to court, we will defend you and seek a reduction or a dismissal of the charges. However, through our expert negotiators, we could be able to get the prosecution to agree to withdraw the accusations before the case goes to court. If you are a resident of Riverside, CA, please contact us at 951-946-6366 so that we can analyze your case.