When parents are getting divorced, emotions are often high, primarily because of the issue of child custody. Some of the parents feel they want sole custody over their child or children, but the court does not always grant their wishes. Because they are unhappy with the decision, they might try and deny you visitation, which might lead to anger. If you decide to take the law into your hands and pick up the child and conceal him/her from the legal custodian, you might be charged with child abduction. A conviction for this crime can result in incarceration and hefty fines even though you didn’t have any malicious intent when you picked up the child.
To avoid such consequences, The LA Criminal Defense Law Firm is here to provide the criminal defense you need. Our attorneys have highlighted an overview of child abduction, why parents abduct their children, prosecution of child abduction cases, penalties for the crime, legal defenses, and other related offenses to enlighten you on the crime.
Overview of Child Abduction
According to California PC 278, malicious taking, keeping, concealing, or withholding a child from his or her legal guardian with the intent to hold them or hide them when you don’t have legal custody is called child abduction. The crime is mostly committed by:
- Other family members who don’t have the legal right to care for the child.
You are considered to have right of custody if:
- You are a parent to the child in question, and no court has revoked or restricted your custody rights
- A court has issued a custody order
Note that it is easy to confuse child abduction and kidnapping. However, the two are different because child stealing is deemed a crime against the parent and not the abducted child, while kidnapping is a crime against the kidnapped person. Also, it is critical to understand that you can be convicted of child abduction even if the child didn’t move or travel any distance. As long as the prosecution attorney can prove you had intentions to detain or hide the child from the legal custodian, you will be found guilty.
Reasons for Child Abduction
If you are wondering if parents could abduct their child, the answer is yes. It happens mostly when a family member or a parent keeps, entices, or conceals a child contrary to the visitation order. Some reasons force these people to abduct their kids. These reasons include:
- The abducting parent thought that the parent with legal custody is terrible because of personal frustration in the relationship
- The abducting parent is afraid of losing visitation rights or custody
- The abducting parent is seeking revenge by taking away something that will hurt the other parent, and in this case, the child
- The abducting parent is acting in defense of the child by removing him or her from impending danger or threat from the other parent
- The abducting parent is afraid that the behavior or beliefs of the other parent might influence the child
- The abducting parent has no plans of involving the other parent in raising the child and is trying to remove them out of the picture by leaving
- The abducting parent is trying to force contact or reconciliation with the other parent
- The abducting parent wants to be more relevant in the child’s life and wants the child to be dependent on him or her alone
Prosecution of Child Abduction Case
PC 278 criminalizes taking or concealing a child from his or her legal custodian. The law was enacted to protect the parents of the abducted child from anxiety and anguish that comes when their child is taken away without their consent. During prosecution, the victim is not the abducted child but instead his or her parent. The prosecutor will do his or her best to prove that you violated the law against the legal guardian of the child by establishing the following elements:
You Lack Lawful Right to Custody of the Child
When a court issues a custody order or if you are a parent to a child and no court has restricted your rights, then you hold the right to custody. If you lack the rights, it means you are not a legal custodian to the child. Therefore, taking, keeping, or enticing a child away, and you aren’t the legal custodian means you are guilty of child abduction. In the event, the prosecutor can show the jury that you have no legal right of child custody, then you will be convicted.
You Malevolently took, withheld or Kept a Child
When proving this element, the prosecution must show that you made away with a child below the age of 18 with the intention to commit a wrongful act, annoy, or injure another individual. Additionally, the prosecutor must also show that allured or led the child away by causing desire in the child. Remember, abduction doesn’t require force as long as you retain physical possession of the child.
You Planned to Detain or Conceal the Child from Legal Custodian
The prosecution must also show that when you acted, you intended to specifically delay or prevent the child or children from returning to their legal guardians. You don’t have to succeed in detaining or concealing the child to be guilty of this crime. All the prosecutor needs to show the court is your intentions to hold or hide.
Keep in mind that abduction is an objective standard. It means that the prosecuting party needs to prove you acted maliciously, intending to keep, allure, or conceal a child from legal custodians to convict you with child abduction.
Penalties for Child Abduction
The crime is a wobbler, and depending on the circumstances of your case and your criminal record, the prosecution might opt for misdemeanor or felony charges. A conviction under misdemeanor charges will incur you as much as twelve months in jail and a fine not exceeding one thousand dollars.
In the event you are convicted for a misdemeanor, the punishment includes:
- No more than 364 days in probation
- Twenty-four, thirty-six or forty-eight months’ state incarceration
- $10,000 or less in fine
Also, you will be required to reimburse the victim or the prosecution for all the reasonable amounts of money spent trying to find the child and bring him or her to the legal guardians.
Sentencing for Child Abduction
At the sentencing hearing is where the prosecution and defense present mitigating and aggravating factors to the judge so that they can influence the verdict.
1. Aggravating Factors
These factors help the judge in determining the penalties for the offense and whether to opt for misdemeanor or felony cases. The prosecuting party often presents the elements, and they are aimed at justifying a stricter sentence. Below are some of these facts that explain harsh legal penalties:
- You exposed the child to considerable risk of bodily injury or disease
- During the abduction, you threatened to cause physical harm to the child or legal custodian.
- You harmed or abandoned the child at the time of stealing
- You took the child outside the U.S. borders
- You failed to return the child to the lawful guardian
- You made changes to the name and appearance of the child
- At the time of the abduction, the child was denied primary education
If the prosecution can prove any of these factors during the sentencing hearing, the judge is likely to issue harsher sentences.
2. Mitigating Factors
It is not the prosecution alone that is allowed to say something during the sentencing hearing. The defense is also given a chance to present some facts that would help with the reduction of the sentence. These facts are codified under PC 278.6 (b), and they include:
- You returned the child unharmed before the issuance of an arrest warrant by the court or before your arrest.
- You provided help, information, or did something that aided the safe return of the child.
If you can prove that you did any of the above things, the judge is going to give a lighter sentence.
Legal Defenses to Child Abduction Charges
Our attorneys at The LA Criminal Defense Law Firm have the experience to apply tailored defense theories to see the charges reduced or dismissed. So, any time you realize you violated the custody or visitation order and you lacked a reasonable belief that the child was in imminent threat of harm from the legal guardian, it is best that you contact us. We understand the elements the prosecution will try to prove, thus best suited to provide the best defense for your case. Some of the defenses that will apply in a child abduction charge include:
You had Lawful Custody of the Child
If your attorney can prove to the court that you were entitled to the full right of custody or visitation at the time of the said abduction, you cannot be convicted of the crime. Remember, the prosecution builds their case on the fact that you are not the lawful custodian of the child. But if you can prove that you are also the legal custodian of the children, even if you took them out of the country without informing the other parent, you will be innocent. For this defense to hold, you must prove that you lacked illegal intent when you took the child. Otherwise, if you took a child for a wrongful act, you will be found guilty.
Also, you would face alternative charges like contributing to the delinquency of a minor. This will happen if you:
- Caused serious bodily injuries on the child
- You exposed the child to emotional abuse
- Neglected the child by failing to provide for basic needs like food, shelter, and clothing.
You Didn’t Take the Child from the Legal Custodian
PC 278 is not violated if you take a child and detain or conceal them from someone who is not their lawful custodian. You can use this as a defense, but keep in mind based on the circumstances surrounding your arrest, you might be charged with kidnapping, which has harsher sentencing. But when fighting child abduction charges, your attorney can claim that the person from whom you took the child didn’t have the right to custody of the child. It means you won’t be convicted of violating PC 278.
You didn’t Conduct Yourself Maliciously
The prosecution is required to prove all the elements of the crime to convict you. One of these critical elements is acting maliciously to take, entice away, or conceal the child from the lawful custodian. If your defense attorney can demonstrate that your action was not malicious at the time you took the child, then you will not be found guilty. You can argue that it is a mistaken belief, and you had good intentions when you took the child away.
If your attorney can claim that you took the child to protect her from harm and your intentions were not to injure or commit a wrongful act, then your actions lack malice, and you will be acquitted of the charges. The defense will work if you didn’t hold the child indefinitely, and you made an effort to contact social services or law enforcement. But the argument will not hold in court if you took the child and kept him or her without informing the police or a social service agency.
Cases of ex-spouses falsely accusing the other parent of child abductions are prevalent nowadays, especially where the parents are battling for child custody in court. False accusation defense can, therefore, work for you if you are innocent or wrongfully arrested for child stealing. Also, you can apply the defense in the case of mistaken identity where you match the descriptions of the offender. Arguing that you are charged because of mistaken identity or because of false accusations will require you to prove facts. Reach out to an attorney with the right resources to conduct a thorough investigation and find facts to support the argument.
If a prosecutor cannot prove every element of the crime to a moral certainty, you should be acquitted of the charges. An excellent attorney can argue that there is insufficient evidence to prove beyond a reasonable doubt that you are guilty where the prosecution has reason to believe you are guilty but lack the facts to support their argument.
It is essential to note that having consent from the child cannot apply as a legal defense in a child abduction case. The reason being the offense is committed against the parent and not the abducted child.
Child Abduction and Related Offenses
Depending on the situation surrounding your arrest, there are other offenses the prosecution could charge you with, in place of or in addition to child abduction. These offenses include:
1. Deprivation of Custody
The crime is codified under PC 278.5, and it prohibits any form of child abduction that involves maliciously denying the other parent's right to custody or visitation of the child. The offense is different from child abduction because unlike PC 278, where the child is abducted by the parent who is not the lawful custodian, in deprivation of custody, the defendant is a person who has the right of visitation or even custody. PC 278.5 is commonly violated by foster parents, grandparents, or parents of the child. PC 278.5 is a lesser offense than child stealing, although it is also a wobbler. The penalties are, however, lighter than those of child abduction. Therefore, you can choose this option during a plea bargain.
PC 278.5 is a wobbler that gives the prosecution the discretion to charge you with a felony or misdemeanor. A conviction for misdemeanor deprivation of custody attracts a penalty of as much as 12 months’ jail sentence, a fine no more than dollars one thousand or both.
If charged with a felony and convicted, the punishment is:
- No more than sixteen, twenty-four, or thirty-six months’ incarceration
- As much as dollars ten thousand in fine
Being alleged to have violated PC 278.5 or being charged with deprivation of custody doesn’t mean you will automatically face the above charges. It is possible to put up a strong defense that will see the charges dropped or reduced. Some of the common defenses that you can apply in this case include:
- The other person was not the lawful custodian or lacked legal visitations
- You were protecting the child
- You had good intentions
- You are falsely accused
Kidnapping laws are codified under PC 207-209.5, and the statutes make it a crime to move another individual a considerable distance without the consent of that individual. In most cases, kidnapping involves the use of physical force upon the victim or threatening to inflict physical energy.
One commits aggravated kidnapping if they do the following:
- Move a child under the age of 14 years using force or fear
- After the kidnapping, you ask for a ransom
- The person you are kidnapping suffers serious bodily injuries or fatality
- You kidnap a person during a carjacking incident
Aggravated kidnapping is a felony whose conviction is subject to incarceration for between five years to life, depending on the situation of your case. Simple kidnapping where there are no aggravating factors, on the other hand, carries a penalty of no more than eight years’ imprisonment. Kidnapping is different from child stealing in the following ways:
- In the kidnapping, the victim must be moved a substantial distance while in child abduction, moving the victim is not a necessity.
- In child stealing, intent to detain or conceal the child from the lawful custodian is required for a conviction, but in kidnapping, what is necessary to convict you is unlawful intent.
- Kidnapping is a crime against the abducted individual while child stealing is a crime against the parent of the child.
The two offenses are related in that the prosecution can choose to charge you with both crimes depending on the status of your case.
3. False Imprisonment
As per PC 236, false imprisonment is illegal, impeding another person’s freedom. The offense is charged as a misdemeanor, but in instances where you use fraud, fear, and violence to imprison another person, the crime becomes a felony falsely. A felony conviction attracts a sentence of as much as three years’ state incarceration.
In scenarios where the child is too young to resist, you will still be convicted of false imprisonment because it is assumed the crime was committed against the parents of the child. The basis used in PC 236 is the same as that of a child-stealing statute.
4. Contributing to the Delinquency of a Minor
The offense is codified under PC 272. It is related to child abduction in that it involves taking a child away from his or her family or home by transporting, persuading, or luring the child to moving to an away location. The person abducting the minor under PC 272 is not related to him or her and tries to create a relationship by luring the juvenile to avoid asking for consent from the legal guardians.
The offense of violating PC 272 is an infraction, or a misdemeanor thus carries lesser penalties compared to child abduction. When charged with child abduction and you are offered a plea bargain, it is best to convince the prosecution to charge you with violation of PC 272 because it’s a lesser charge.
5. Loitering at a School
The offense is defined under PC 653b. It is committed when you linger around a school or a public place where children gather with an illegal purpose or intent to commit a wrongful act. The crime is often charged alongside or instead of child abduction. If you are facing charges of attempted child stealing, you can take a plea bargain and have the charges reduced to loitering at a school since it carries a lighter sentence.
Find a Los Angeles Child Abduction Attorney Near Me
If you are being suspected or charged with abducting a child, we invite you to contact us at The LA Criminal Defense Law Firm at 310-935-1675 to speak to one of our attorneys. We understand domestic violence and have represented many child abduction suspects and successfully helped them prevent the harsh penalties that come with a conviction. Reach out to us today for a free consultation so that we can review your case and begin to build defense strategies for a positive outcome.