Child abduction cases are quite common in California. However, it doesn’t mean that all of them are true. Mostly, these cases occur during child custody or divorce proceedings where one parent claims that the other has abducted their child. The parent missing the minor then contacts the police, hoping to not only get help finding his/her child, but also have the upper hand in the case. While several of these parents may be genuine, others may have ulterior motives to accuse their partners falsely.

If you are facing child abduction charges, you shouldn’t rule out the possibility that the charges against you are not true. You should first talk to an attorney. Contact us at the Los Angeles Criminal Attorney as soon as possible for help. In this article, we are going to look at what constitutes child abduction and what to expect when charged.

An Overview of the Law on Child Abduction

Penal Code (PC) 278 is the California statute on child abduction. It makes it an offense to steal a child. A person breaks the child abduction statute when he/she takes a minor away from their legal guardian or parent/parents.

PC 278 aims at protecting parents or guardians against the grief and anxiety they would go through should another person take their young ones away from them without permission. Consequently, child abduction is an offense against the child’s parent and not the child himself/herself.

Elements of the Crime

For the judge to conclude that you are guilty of child stealing, the prosecution must have proven various facts beyond a reasonable doubt. These facts are what we refer to as elements of the crime. They include:

  • With malicious intent, you enticed away, took, kept, concealed, or withheld a minor (that is an individual under the age of 18 years),
  • You didn’t have custody rights over the minor, and
  • You particularly intended to conceal or detain the child so he/she doesn’t see or be with his/her legal custodian.

The Meaning of Terms

Acting maliciously means committing an act with the intention of injuring or annoying someone else. It also means having the intent to do an illegal act. On the other hand, enticing a minor away means luring, attracting, or leading the minor away through the generation of desire or hope in that child. It doesn’t necessarily imply that you coerce the child to go with you.

Withholding a minor means retaining the physical possession of the child irrespective of whether the minor objects/resist or not. And detaining a child means you will be delaying or preventing the minor’s return to their guardian or parent.  It is crucial to note that whether or not you actually conceal or detain the child does not matter. What matters as per this statute is you had the intent to act so.

If you possess the right to custody, then it means that you are permitted by law to take physical care, control, and have custody of a minor because:

  • You are the child’s parent, and the court has not revoked or restricted your rights to custody
  • You obtained a court order to assume the child’s custody

A legal custodian refers to a public agency, guardian, or person who has the right to assume a minor’s custody. This also includes the parents who retain a child’s custody or any given designated lawful guardian who has a similar right.

Penalties for Child Abduction

Child stealing is considered a wobbler offense. This means that the prosecutor can choose to charge you with either a felony or a misdemeanor. The prosecutor’s choice depends on your criminal record and the facts surrounding your specific case.

If you get convicted of misdemeanor child abduction, your punishment will include a maximum jail sentence of one year and up to $1000 in fines.

On the other hand, if you get convicted of a felony, the consequences will include probation and a maximum jail sentence of one year or four, three, or two years in prison. You will also be subjected to a maximum fine of $10000.  If you steal a minor in violation of a custody order (PC 278.5), the consequences are the same. The only difference is that felony charges will subject you to three or two years, or sixteen months in prison rather than four, three, or two years. 

Apart from these penalties, you must also pay restitution to the victim and the prosecuting agency. Or, you may be ordered to pay restitution to anyone else acting on behalf of the victim. The restitution is to cover any costs that these parties reasonably incurred when locating or returning the minor to the rightful owner.

The Sentencing Proceedings

During the sentencing proceedings, your attorney and the prosecutor will present mitigating and aggravating factors to assist the judge in determining the appropriate sentence. Aggravating factors are those factors that would warrant a four or three-year sentence. They include facts like:

  • You had not returned the minor at the time of the arrest
  • You noticeably altered the child’s name or appearance
  • You subjected the minor to a considerable risk of illness or physical injury
  • You took the minor outside the country
  • You threatened to cause or caused bodily injury on the minor/lawful custodian/parent during the time you had abducted the child

Mitigating factors are facts that could help to reduce the sentence. They include:

  • You provided assistance and information that led to the safe return of the child
  • You gave back the child to the owner unharmed, and before your arrest or a warrant for arrest was issued against you.

Legal Defenses to Child Abduction

Several legal defenses can be applied to PC 278 child abduction charges. Your attorney can argue these defenses based on the specific facts of your case. The defenses include but not restricted to the following:

  • The person you took the minor from wasn’t the legal custodian

Taking a child then attempting to conceal or detain him/ her from a person who is not the lawful custodian is not violating PC 278. However, you may face kidnapping charges based on the specific circumstances surrounding your case.

This defense is illustrated in the People vs. Bormann case. In this particular case, the minor’s father, who was the defendant, took his daughter from the family she was staying in Mexico. The family had been given the child by a woman whom the minor called grandma. And the grandma had been given the child by the defendant and the child’s mother, who were the minor’s biological parents.

The court’s ruling of this case was that the child’s father couldn’t be convicted under PC 278. This is because the person he took his daughter from was not somebody that had legal custody of that child.

  • You had the right to child custody

If you have the right to be in legal custody of the minor in question, then you aren’t guilty of child abduction. For instance, let’s say that you stay with your husband and child then one day your husband and you get into a fight. As a result, you take the child and leave the house. You decide that you will go live with your mother for a short period, but you don’t inform your husband where you and the child are.

In this case, you, as the child’s mother and one of the lawful custodian of the child, have the legal right to take your child on a trip. You keep this right whether or not you have sought consent from the child’s other parent. This is provided you aren’t taking the minor with unlawful intent or illegal purpose.

However, when you do this, you may be charged with another offense, like PC 272, contributing to the delinquency of a child if for instance you:

  • Inflict severe bodily injury on the minor
  • Expose the minor to harsh emotional damage/abuse
  • Neglect your duties of providing clothing, food, medical care or shelter for the minor
  • You did not take the minor away with malicious intent

Before you can be found guilty of child abduction, the prosecutor needs to prove each element of this crime. One of these elements has a requirement that needs the prosecutor to show that you took the minor with malicious intent. If your attorney can substantiate that you didn’t have malicious intent when taking the child, then you shouldn’t be found guilty of this crime.

For instance, you may have taken the minor because you had reason to believe they would be exposed to injury if they stay with their custodian. In this case, your child abduction charges should be dismissed. This legal defense is the same as that of self-defense or defense of someone else.

However, for you to win based on this legal defense, you have to show you had the best intentions for taking the child away. In case the reason for taking the child was to injure or annoy someone else, or you intended to do an illegal act, the court will rule that you acted maliciously.

Also, this defense won’t make you win in case you indefinitely withheld the minor, and your act was only exposed because you got caught.  You are not allowed to take the law into your own hands. This defense may work perfectly if, for instance, you alerted social services offices or the police after taking the minor and reported the situation.

  • Mistaken identity/false accusations

If you’re innocent of child abduction charges completely, this is the best legal defense you could use.  For example, if someone accused you falsely or were wrongfully put under arrest due to a case of mistaken identity, you can use this defense.

False accusations often arise in relation to child abduction in cases to do with divorce proceedings or custody disputes. For instance, a spiteful parent may attempt to frame the other to appear as though he/she is guilty of abducting a child. But in reality, the parent being accused may have had the authorization to keep the minor.

Regarding mistaken identity, it could be that you resemble the physical appearance of the actual offender. Or, it could be that your car resembles the one the offender used in the commission of the crime.

There are several reasons as to why you can be wrongfully arrested or falsely accused of child abduction. However, our attorneys have the knowledge and necessary resources to do an in-depth investigation to help you fight these charges.

  • Insufficient evidence

As we said earlier, the prosecutor has to prove each element of this crime beyond any reasonable doubt for you to be convicted. If he or she can’t do that, then you should be acquitted of your charges.

Although the evidence in your case may indicate that you are guilty, sometimes the prosecution may not have adequate evidence to prove your case beyond any doubt. In a situation like this, your lawyer could argue that there’s inadequate proof to find you guilty; thus, the judge should dismiss your case.

It is critical to note that it does not matter whether or not the minor goes away with you voluntarily. The consent of the child isn’t a legal defense to PC 278 charges. The reason for this is, the commission of this crime is against the guardian/parent and not the minor.

Related Offenses to Child Abduction

Based on the facts of your crime, several other offenses can be charged instead of or to add on your child abduction charges. These charges include:

  • Deprivation of custody (PC 278.5)

PC 278.5 statute closely relates to PC 278, child abduction. The only difference is that PC 278 particularly targets people who don’t have custody rights over the minor they are alleged to have abducted. PC 278.5, on the other hand, targets even the individuals that have custody rights.

Additionally, PC 278.5 penalizes a person for meddling in another’s visitation rights and custody rights. PC 278.5 is considered a less severe offense than PC 278.  It is a wobbler offense, but the conviction for felony charges will subject you to three or two years, or sixteen months in prison.

  • Kidnapping (PC 207-PC 209.5)

You break kidnapping laws if you move someone else a significant distance without the person’s consent through the use of fear or force. Fear or force means actual infliction of physical force on the supposed victim or threatening to inflict physical injury. There are certain cases where your kidnapping charges can be elevated to aggravated kidnapping.  You face aggravated kidnapping in case you move someone else through the use of fear, fraud, or force and the following is true:

  • The supposed victim is a minor who is below 14 years
  • You add money (ransom) demands on the kidnapping
  • The supposed victim suffers physical injury or death
  • You kidnap someone else while in violation of PC 215, carjacking law

A simple kidnapping offense is charged as a felony. The penalties include eight years in prison. Aggravated kidnapping is also a felony. It carries a prison sentence of between five years and life imprisonment, based on the specific circumstances of the crime.

We have three significant differences between child abduction and kidnapping. They include:

  • Kidnapping charges require that the defendant moves the alleged victim a significant distance while child abduction doesn’t have this requirement
  • Child abduction charges require that the defendant have the intent to conceal or detain the minor from his or her legal custodian. Kidnapping, however, is quite broader. Taking someone else with any unlawful intent is sufficient to warrant kidnapping charges
  • Kidnapping is an offense against the victim being kidnapped. Abducting a child is an offense against the child’s parents

You can be charged with both kidnapping and child abduction or either of the crimes based on the facts surrounding your case.

  • False imprisonment (PC 236)

You violate the false imprisonment statute when you illegally inhibit someone else’s freedom. PC 236 is charged as a misdemeanor. However, in case you falsely detain someone else by using deceit, fraud, violence, or menace, you will face felony charges. Felony punishments include a maximum prison sentence of three years.

And in case the minor is very young that he/she cannot protest or resist, you could still be charged with this crime. This is if the deceit, fraud, violence, or menace was directed to the child’s guardian/parent. The reason for this is that as it is with child abduction, false imprisonment can also be committed against the falsely detained parent of the minor, and not only the child. 

Find a Los Angeles Criminal Defense Attorney Near Me

Being convicted of child abduction will subject you to severe legal penalties. For this reason, you need all the help you can get to fight the charges against you. Having an attorney by your side is the best shot you have towards getting your charges dropped. And if the charges cannot be dropped, an attorney may fight to get you a charge reduction. If you have been arrested, are being investigated, or have already been charged with child abduction in Los Angeles, contact the Los Angeles Criminal Attorney. We will review your case and plan a defense strategy that will get you the best possible results. Call our offices at 424-333-0943 without any further delay.