The mention of child abduction and the immediate picture that comes to mind for many is a stranger taking a child away. Whereas this is accurate, child abduction is not limited to strangers as the perpetrators of the crime. It also incorporates parents and family members.
It is a crime for an individual without the right of custody to take a child away and keep the minor from the parents or legal guardian. These actions amount to child abduction and violate Penal Code 278. Prosecutors can either charge you with a misdemeanor or a felony violation, depending on the facts of the case. Our team at Los Angeles Criminal Attorney can offer legal aid to challenge child abduction allegations.
Child Abduction Under California Law
Penal Code 278 defines child abduction as the malicious taking, enticing away, keeping, or withholding of a minor to conceal or detain the child from their legal custodian. Further, the individual involved in this act has no legal right to hold or have custody of the child.
PC 278’s language specifically targets individuals close to the child who could take the minor yet have no legal right to custody. These individuals include:
- Parents whom the courts have denied custody or issued limited access to the child through a child custody order.
- Other family members
Here are a few examples of actions considered to be child abductions.
- A divorced father without parental, visitation, or child custody rights takes the child to his home without informing the concerned parties. This action is parental kidnapping.
- A child’s aunt takes her niece from school and drives her to her home to conceal the act from the child’s parents.
- A distant relative takes a child to a different country to hide the child from the parents.
Elements of the Crime
Prosecutors bear the burden of proving their case. The courts require the prosecution to establish the following as true to secure your conviction for child abduction.
- You maliciously took, enticed away, kept, or concealed a child from his/her legal custodian — Malicious action describes intentional wrongdoing. It also includes engaging in the act of defrauding, disturbing, annoying, or injuring another individual.
- The minor was under 18 years old.
- You had no legal right to custody of the child.
- You acted with a specific intent to detain or conceal the minor from his/her legal custodian — Custodian referring to an individual with the right of custody of the child. Additionally, the individual has a right to control and care for the minor. A person becomes a legal custodian by operation of the law or through a court order.
Child Abduction in Child Custody Disputes
An important question arises: can a parent or a family member abduct their child?
Yes, he/she can. PC 278 targets biological parents and family members who take children they have no custody over to conceal them from the parent or family member with legal custody rights over the children. Most family members and parents violate PC 278 when they entice, take away, conceal, or withhold a minor in violation of a visitation or custody order.
There are several reasons why parents abduct their children. They include but are not limited to the following.
- Taking the child away out of fear of losing visitation or custody rights.
- Mistaking his/her frustration or disgust with the relationship to mean the other parent is bad for the minor.
- Using the abduction as an attempt to force contact or reconciliation with the other parent
- Abducting the minor as a revenge play. In the abducting parent’s mind, taking the child is taking away something the other parent wants.
- The abducting parent is concerned about the child’s welfare and the values and lifestyle he/she is exposed to.
- The abduction was an act of removing the child from emotional or physical harm or a perceived threat of emotional or bodily injury from the ex-partner.
- The abducting parent aims to have the child dependent on him/her or wants to be more significant in the child’s life.
The law offers an exception in child abduction cases. You can take or detain a child, thus violating a visitation or custody order, if you have good faith and reasonable belief that the minor or children would suffer emotional or physical harm if left with the legally approved guardian or parent.
However, the law requires you to contact the local Child Abduction unit in your local District Attorney’s office immediately after you take the child. Only then can you qualify for this exception. You should also adhere to the reporting guidelines issued at the office. Failure to which you will face child abduction charges.
Note: Depriving another’s right to custody or visitation is also a crime. Penal Code 278.5 makes it an offense to maliciously deprive another individual of his/her legal right to custody or visitation of a child. This crime is also referred to as child detention.
Custody and Visitation Orders
Addressing the distinction between custody and visitation orders will help you understand the legal differences between the two.
Child custody refers to the responsibilities and rights between parents concerning how to take care of their children. Either parent can have custody of the child or share custody between the two. Under the law, there are two types of custody orders.
a) Legal custody — This custody order assigns critical decisions for the child, like welfare, education, and health care. A judge can issue:
- A joint legal custody order — Assigns the responsibility to both parents. This means they will share in the decision-making process and the obligations the decisions impose, or
- A sole legal custody order — Under this order, only one parent can make important decisions regarding the child.
b) Physical custody order — This order determines where a child lives. Similar to a legal custody order, the physical order can be joint or sole.
- Joint physical custody order — The concerned children live with both parents. It is difficult to split the time a child spends with each child. So, ideally, there is an agreed time allocation for each parent.
- Sole physical custody order — It is also called the primary physical order. A parent with sole physical custody is the only parent the child lives with. The other parent has visitation rights.
Visitation orders, or time-share orders, are the plans allocating time shared with the children. The courts grant parents with less than half the time child-visitation rights.
Visitation orders vary based on the child’s best interests and the financial and work situations of the parents, among other considerations. The visitation can be any of the following.
- Reasonable visitation — These orders are open-ended. They allow both parents to develop a visitation plan.
- Visitation according to a schedule — The schedules are detailed to prevent conflict and confusion. They are primarily used if the parents do not get along. The plans further describe the exact dates of the visits and the time when the child will be with each child.
- Supervised visitation — Judges issue supervised visitations when the courts have reasonable belief to be concerned about the child’s safety and well-being. The other parent, another adult, or a professional agency representative will supervise the visit.
- No visitation — The courts can deny a parent access to the children. Often, this order is issued if the court believes that contact with the parent denied access to the kids is physically or emotionally harmful to the kids.
Child Abduction vs. Kidnapping
Child abduction is often mistaken for child kidnapping. The two are distinct crimes.
Note: Parental kidnapping, which is child abduction, should not be mistaken for kidnapping a child.
Kidnapping is a violation of Penal Code 207 and Penal Code 208. Under the statute, kidnapping involves moving an individual a substantial distance without his/her consent and through the use of force or fear.
If a child under 14 years of age is the victim of the kidnapping offense (a violation of PC 208), a conviction is punishable by potential life imprisonment with the possibility of parole. If the child is older than 14 but less than 18, you could face simple kidnapping charges (a violation of PC 207). The offense is punishable by up to eight years in prison.
Note: Prosecutors could prefer kidnapping instead of child abduction charges if they believe they have substantial evidence for a kidnapping charge.
Federal Laws on Child Abduction
Child abduction is also a federal offense. An individual violates federal child abduction laws when he/she flees the state jurisdiction where the child lives with his/her legal guardians or parents. You could face action depending on the law you violated.
Here is a look at some federal laws on child abduction.
- Hague Convention
The United States is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. The convention provides a legal avenue to have their children returned to the United States by filling out a case in the district court in the U.S.
- International Parental Kidnapping Act
Title 18 U.S. Code § 1204, the International Parental Kidnapping Crime Act, makes it a federal offense for any individual to remove a child below 16 years from the United States to interfere with a parent’s legal custody rights.
This law gives prosecutors the power to prosecute individuals who commit child abduction offenses and cross international borders.
- Fugitive Felon Act
Title 18 U.S. Code § 1073, the Fugitive Felon Act, gives federal and state prosecutors the authority to target interstate child abduction offenders. The prosecutors will obtain arrest warrants for individuals who committed child abduction in their jurisdiction and fled across state lines.
Fighting Child Abduction Charges
At Los Angeles Criminal, we have successfully used the following defenses to fight off child abduction charges. The choice of an appropriate defense depends on the facts of your case. Thus, we will use a defense likely to result in a favorable legal outcome.
Good Faith Intent
You must act maliciously for you to be found guilty of child abduction. It is for the prosecution to prove malicious intent beyond a reasonable doubt. They must provide evidence showing you abducted the child intending to defraud, disturb, annoy, or injure another individual. Your attorney will argue that your actions lacked malice and that you acted in good faith instead.
Under this defense, you acknowledge taking the child in good faith and reasonably believe that the child was in imminent danger of physical harm or emotional abuse if left with the parents or legal guardians. If this is the case, your defense attorney will help you report the matter to the District Attorney’s office. The law provides reporting procedures that your attorney will explain to you.
The earlier you report your concerns, the better your chances are of avoiding prosecution for child abduction.
The prosecution’s case hinges on your lack of legal custody of the child. A defense attorney can provide evidence proving your legal rights. He/she can present custody or visitation orders to challenge the child abduction allegations.
If you have legal custody of the child, your attorney could explain your actions as merely taking away the child, and the parent or legal guardian could not reach you.
Divorce and child custody battles are emotionally-charged. Therefore, it is no surprise that a disgruntled partner who loses the custody battle or has limited access to the children could seek retribution.
Most disappointed partners call law enforcement agencies and falsely accuse their ex-partners of abducting their children, yet the defendant took the child per the court orders. In other situations, a defendant could lose track of time and return the child late. However, during that period, the ex-partner could claim the defendant abducted the child.
In cases where defendants are falsely accused, attorneys rely on the accuser’s past to demonstrate a history of deceit, disappointment, or malicious intent to the court. Attorneys then link this troubled past or intent with the accuser’s aim of falsely accusing the defendant. Most ex-partners falsely accuse defendants of child abduction, intending to see defendants suffer or lose their custodial or visitation rights when convicted.
Loss of Custody or Visitation Rights
A parent with granted custody or visitation privileges can lose them if the child suffers abuse, abandonment, or neglect when in his/her care. If a parent loses his/her rights, taking the child is not abduction, and your attorney will demonstrate it to the court. This means the prosecution lacks evidence to convict you of child abduction.
Penalties for Child Abduction
Child abduction is a wobbler offense. Prosecutors can pursue misdemeanor or felony violation charges. Their choice is reflective of their consideration of the facts of the case and the defendant’s criminal history.
Penal Code 278 imposes a jail sentence of up to one year and a maximum fine of $1,000 on individuals convicted of a misdemeanor violation. If convicted on felony charges, you will spend up to 4 years in prison and pay a maximum fine of $10,000.
Further, you should pay restitution fees to any person acting on the victim’s behalf, the District Attorney's Office, and/or the victim. The payment dates for expenses reasonably incurred in tracing and returning the child to the legal custodian or the other parent.
Impact of a Conviction on Non-Citizens
Child abduction convictions have negative immigration consequences. Under California law, non-citizens who commit aggravated felonies risk:
- Inability to receive an asylum status
- Being deported to their country of origin
- Denial of re-entry to the U.S.
- A permanent ban on seeking a green card or a U.S. visa
A case becomes an aggravated felony if there are aggravating factors, including but not limited to the following.
- You caused or threatened to cause bodily harm to the parent, legal custodian, or child during the abduction.
- The length of the abduction
- Whether the child was exposed to a substantial risk of bodily harm or illness
- Whether you hurt or abandoned the minor or minors during the abduction
- If you did not return the child to the legal custodian
- You threatened to kidnap or did abduct the minor(s) in the past
- You abducted the minor or minors and took them out of the country
- You significantly altered the child’s name or appearance
- You denied the minor(s) proper education when you abducted them
The court also considers mitigating factors. These circumstances lessen the punishment you would otherwise receive. These factors include but are not limited to the following:
- You returned the minor unharmed before a judge issued your arrest warrant or before your arrest.
- You provided assistance and information that led to the safe return of the minor(s) to their legal guardian or parent.
Consequences of a Child Abduction Conviction on Gun Rights
Convictions on misdemeanor charges do not affect your gun rights. However, felony convictions will. This means you will lose your right to own, buy, or possess a firearm. A violation of these conditions results in criminal prosecution.
Expunging a Child Abduction Conviction
Penal Code 1203.4 releases you from a criminal conviction's negative social and economic consequences. This means you do not have to disclose your criminal past to your potential employer or any other party that requests you to do so.
You can have your conviction expunged if the child abduction charge was a misdemeanor and you have completed your jail sentence.
Reporting Child Abduction
You can report a child abduction case to the Los Angeles Police Department or the National Center for Missing and Exploited Children at any time. When reporting, request that the officials enter the minor’s name in the NCIC (the National Crime Information Center) database as a missing person.
Penal Code 207 makes it an offense to kidnap an individual. Under the statute, you kidnap an individual when you:
- Move the victim over a substantial distance
- You did so without his/her consent
- You used force or fear to move the individual
Simple kidnapping is a felony punishable by up to eight years in prison.
Aggravated kidnapping is a felony. However, it is punishable with life imprisonment with a possibility of parole, depending on the circumstance of the case.
- If the victim was a minor below 14 years old at the time of the offense, you would receive 5, 8, or 11 years in prison.
- If you kidnapped the minor for ransom, reward, or committed any sex crime under California law, your sentence increases to life in prison with the possibility of parole.
- False Imprisonment
False imprisonment is a violation of Penal Code 236. It is unlawful to violate another individual’s liberty by detaining, restraining, or confining the individual against his/her will. Prosecutors charge the offense as a misdemeanor or a felony.
Prosecutors must prove the following to convict a defendant for a misdemeanor violation.
- The defendant deliberately and illegally detained, restrained, or confined another individual.
- The defendant’s actions made the victim go somewhere or remain at a particular location against his/her will.
If the prosecution seeks a felony conviction, they must prove the following.
- The defendant deliberately and illegally detained, restrained, or confined an individual through the use of violence or menace, and
- The defendant made the victim go somewhere or remain at a particular location against his/her will.
Note: With child abduction, parents have the right to restrict their children’s movement by imposing timeouts or grounding them. However, the actions taken by the parents should not result in the child's physical or mental harm.
Misdemeanor violations are punishable by a fine not exceeding $1,000 and imprisonment of up to one year. Felony convictions, on the other hand, result in a jail sentence of up to three years.
Find a Criminal Defense Attorney Near Me
You need every advantage to fight child abduction charges. You need to contact an experienced attorney immediately if you are aware of an investigation or if you face child abduction charges. At the Los Angeles Criminal Attorney, we will work to have the charges reduced or dismissed through a pre-filing intervention before the case proceeds to trial. Should the case proceed to trial, we will represent you.
The outcome depends on the facts of your case. Therefore, call us at 424-333-0943 to schedule a free case assessment.