The laws that discuss and protect children from abduction are found under PEN 277 to 280. If you are accused of abducting a child, according to the law, it means that you maliciously took the child away. The law states that when you maliciously entice, withhold or keep a child away from their lawful guardian or custodian, then you violate the law. However, you can only be accused of abducting a child if you do not have legal rights or custody of the child. Most child abductions are not committed by strangers, rather, by family members. A parent, step-parent, or other members of the family are the most people accused of child abduction. If charged with this offense, the penalties are severe.
Speaking to a criminal lawyer will help you formulate a defense that will result in a favorable outcome. The Los Angeles Criminal Defense Attorney has extensive experience in such cases and will help you with your defense.
Why Would a Parent or Family Member Abduct a Child?
Sometimes it can be hard to comprehend a parent or relative abducting a child. However, they do it often, especially where there are issues with child custody. Parents have multiple reasons for abducting their children. Some of these are:
- The parent believes that their misunderstanding and displeasure with their ex-partner means they are evil and equally unfit for the minor
- The parent is paranoid about losing visitation or custody rights to the child
- The parent wants to punish their Ex by taking one thing they value most – their child
- The parent could be saving the minor from physical or emotional abuse by the ex-partner that may be real or perceived
- The parent believes that the other parent is exposing their child to questionable behavior and values
- The parent does not want the other to be involved in the raising of the child so to get rid of them, and they escape with the child
- The parent may need to reconnect with their ex-partner forcefully and uses the child for bargain
- The parent wants the minor to recognize them as the more critical parent by making them wholly depended on them
When a child is abducted, it may involve the juvenile court or family court, and sometimes it may require the abducting parent to be charged with a felony.
However, there are exceptions to the abduction of a child. A parent in breach of the visitation or custody order may detain a child when they have a reason to believe that the minor is exposed to danger if left with the legal guardian or another person. In case you feel the child could be in danger, upon taking them, you must report the unit on child abduction at your District Attorney’s office. At the office, you will be furnished with various instructions that you must follow. If you fail to adhere to the guidelines, the exception will be inapplicable, and you will be charged with child abduction.
Understanding the Law on Child Abduction in California
The law under PEN 278 prohibits the stealing or abduction of a child. A person is accused of violating the law when they take a minor away without the consent of their legal guardian or parent. This law was designed to not only protect the children but also parents from the grief and anxiety they would feel if their child was taken away without their consent. For this reason, when a child is abducted, the law considers it an offense against a parent, not a child.
If you are accused of abducting a child, for the prosecution to get a conviction, they must prove certain aspects of the offense known as the elements. These elements are:
- With malicious intent, you enticed, took and kept a child away
- You held no legal rights to the child or their custody
- Your sole purpose was to keep away the minor from their legal custodian
In order to understand what the law means, below, we discuss what various terms mean as used in this statute.
When you are said to have acted or behaved maliciously, it means you do something for annoying or injuring another individual. It also means that you intentionally wanted to carry out a wrongful deed.
Keeps, Entices or Withholds
When a child is enticed, it means they were lured, or you appealed to their desire. This does not mean that force was applied for the child to go with you. When you withhold or keep, it means you have the child in your possession irrespective of whether there is objection or resistance from the child.
When a child is detained, it means their return to their parents is delayed or prevented. According to this law, your intention to hold is enough. This is regardless of whether you actually detained the minor or not.
A right of custody means that a person has legal rights to physically care, control, and custody of the minor when:
- They are issued with the order from the court
- Are the legal parents of the minor and no one has challenged their custody rights, neither have they been revoked or restricted by the court
Legal Defenses for Child Abduction
When you face accusations of stealing or abducting a child, you need the services of an experienced criminal lawyer to fight for you. Fortunately, there are many legal defenses your lawyer can use that can get you acquitted of the charges or get you lesser penalties. Some of these defense strategies include:
You had Custodianship of the Minor
If you have the legal custodianship of the minor and you are accused of abducting them, then you cannot be found guilty of the offense. For instance, if you disagree and you get the children into your car and go to live with your parents for a while, you cannot be accused of abduction if you never told her. Just like her, you have legal rights to the kids and are also a legal custodian to them. This means your wife, just like yourself, is not prohibited from traveling with the children.
The law does not require you to seek permission to travel with the kids from your wife. However, if you were taking them away with unlawful intent or purpose, this defense will not apply.
The Person who had the Child and You take them away from had no Legal Custodianship
If you detain or take a minor from a person that is not the legal custodian to the minor, you cannot be found guilty of PEN 278 violations. However, kidnapping allegations may be brought against you based on the circumstances of the offense.
For instance, if a child was left with the grandparents who are not legal custodians, and the father takes the child away, they will not face child abduction charges. You can also get acquitted of the crime if you had reason to believe the child was in danger, and the reason was valid.
For this defense strategy to work, however, you must show you had no bad intentions. If it is found that you picked the minor to cause harm to the other person or injure them, the act was carried out maliciously. This defense will then not be applicable.
Mistaken Identity or False Accusations
Being innocent is the most appropriate defense when facing these allegations. Sometimes, you may have been accused of falsely or identified wrongly as the perpetrator of the offense. Cases that involve custody battles are where most false accusations come from. For instance, if a parent is vindictive, they could frame the other parent of the offense when no abduction took place.
Mistaken identity happens in cases where the physical characteristics of the actual offender are similar to yours. Sometimes, the car that drives away with the minor may resemble yours, and lead to your arrest. These are just among the many reasons you may be wrongly accused of child abduction.
Fortunately, an experienced attorney normally has various investigators working for him or her that can investigate the allegations and establish the truth. Never ignore these allegations and assume you can fight them by yourself, representing yourself may be the reason you may be wrongly convicted of the crime.
For you to be found guilty of the offense, the elements of the crime, as discussed above, must be proven beyond any doubt. If the prosecution is unable to determine these elements, then the allegations against you will be dismissed.
From the look of things, the case may insinuate that you are guilty. However, without being able to determine the case, one cannot be found guilty. If the prosecution is unable to prove its case, your lawyer can indicate that there is not sufficient evidence to get a conviction against you. And as such, the allegations against you should be dropped.
It is essential to know that a child cannot legally give consent to go with you. Even when the child willingly accompanies you, this cannot be used as a defense. Moreover, the law recognizes the offense to be against the legal guardian or parent and not against the child.
Penalties for Child Abduction
If you are charged with violating PEN 278, you can face either a felony or misdemeanor charges. For the prosecutor to decide how to prosecute the case against you, he or she will look at your criminal record. Additionally, the facts of the crime are also considered.
If found guilty of a misdemeanor offense, you will likely be jailed for a year at the county jail. Additionally, you will be ordered to pay a fine of not more than $1,000.
A felony conviction, on the other hand, carries more severe penalties. If convicted on felony charges, you could either be sentenced to probation together with county jail imprisonment of a year. Or, you could face state imprisonment lasting two or three or four years with a fine not exceeding 10,000. If you are accused of abducting the minor in breach of the custody order under PEN 278.5, a felony conviction will see you serve sixteen months or 24 months or 36 months in state prison.
Aside from the above penalties, you may be ordered to pay the victim restitution. The prosecuting agency or the person that acted on behalf of the victim is also paid compensation. This restitution is typically designed to recover the financial damages incurred in finding and bringing back the minor to the parent or victim.
During the time of sentencing, the prosecutor will table aggravating factors while the defense lawyer will present mitigating factors. These are important in helping the judge come up with the appropriate sentence against the defendant. Some of the mitigating factors your lawyer can offer to lighten the case include:
- That you safely returned the minor back without exposing them to harm and before being arrested or having an arrest warrant issued against you
- You cooperated in providing crucial help that leads to the safe return of the child
On the other hand, some of the aggravating elements that serve to justify a harsher sentence include:
- The child was exposed to the risk of significant danger or illness or physical injuries
- You caused or threatened to cause physical harm to the child or the legal custodian as you took away the child or at the time you detained them
- You left the country with the child
- You significantly altered the child’s name or their appearance
- You are still holding the child
Related Offenses to Child Abduction
Aside from being charged with child abduction, many other offenses are related to the offense. This means one can face prosecution of the offense alongside child abduction allegations or instead of them. Some of the common offenses that relate to child abduction are discussed below.
PEN 278.5 – Depriving of Custody
The laws on depriving custody are closely similar to those of child abduction under PEN 278. However, there is a slight difference between them. In PEN 278 child abduction, the law targets individuals that have no custody rights over the minor they are charged with abducting. On the other hand, PEN 278.5, the offense includes individuals that have custody rights over the child, as well as those without rights.
If you interfere with the visitation rights or even custody rights of one parent, the interfering individual is punished according to PEN 278.5.
This offense is considered less severe compared to that of child abduction. This offense can be charged as either a misdemeanor or a felony offense. If you are convicted on felony charges, you could face state imprisonment lasting sixteen or twenty-four or thirty-six months. Additionally, you could be ordered to pay a fine not exceeding $10,000 or either penalty. A misdemeanor conviction will see the defendant facing a possible one-year county jail imprisonment alongside or in place of a fine not exceeding $1,000.
This offense often happens where there are custody disputes, divorce, or the safety of the child is a concern. When faced with these allegations, there are various defense strategies your lawyer can use. Some of the strategies your lawyer will use include:
- You acted in protection of the child
- The other individual had no legal rights to custody or visitation of the child
- Your actions were not out of malice
- The allegations against you were falsified
PEN 207 - Kidnapping
Kidnapping laws are found under PEN 207 in California. Kidnapping is defined as the moving of a person from one place to another significantly further place without their permission. In order to move them, you must have used fear or force, meaning you inflicted force on the victim, or you threatened them with causing them physical harm.
Aside from the standard moving of a person by the use of fear or force, to aggravate the offense:
- The victim of the kidnapping is a minor below the age of 14
- In addition to the kidnapping offense, you ask for a ransom to release the victim
- While carrying out the offense, the victim sustains harm to their body or is subjected to death
- You kidnapped a person while committing another offense, that of carjacking as found under PEN 215
When the above factors accompany the offense, it becomes aggravated kidnapping. If you are accused of simple kidnapping, you will face felony charges. If you get convicted of the offense, you will face state imprisonment of not more than 8 years. If the charges brought against you are those of aggravated kidnapping, you are likely to face imprisonment of five years to life. However, this is largely dependent on the circumstances of the offense.
There are, however, significant differences between child abduction and kidnapping. In the kidnapping, a victim is required to have been moved a considerable distance. However, child abduction does not need this for the offense to stick.
Secondly, when one abducts a child, their intention is to keep or deprive the legal custodian of the child. Kidnapping, on the other hand, is broader. When you take a person as long as there is an illegal intent, you will get convicted of the offense.
Lastly, when a person is kidnapped, the crime is against them while abducting a child is an offense against the legal custodian of the minor. Based on the facts of the case, you can be charged with either child abduction or kidnapping or both of them simultaneously.
If you are faced with these allegations, you need to get a criminal defense lawyer to formulate strategies in your defense. There are many legally acceptable defenses when faced with kidnapping allegations. Some of the strategies your lawyer may use include:
- The supposed victim gave consent to the move
- The movement was insufficient to warrant a kidnapping
- The prosecution lacked sufficient evidence in support of the case
- You were present during the offense, but you are not the person that kidnapped the victim
- The allegations against you are falsified or as a result of mistaken identity
- You are the legal parent of the child and have a right to move with the minor
- You never used fear, force, violence or threats of violence to move the alleged victim
PEN 236 - False Imprisonment
You will face charges of violating PEN 236 when you illegally inhibit the freedom of another person. This violation is prosecuted as a misdemeanor in California. However, if you use deception, violence, or threats of violence, fraud, or menace to imprison a person, you will face felony charges. If you get convicted on these charges, you will be imprisoned for not more than 3 years in state prison.
If the minor were overly young to protest or resist the imprisonment, you would still face charges and a conviction if the violence, fraud, deception, or menace was directed towards the parent. The reason for this is that imprisonment can be against the parent of the falsely imprisoned minor as well.
Faced with these accusations, your lawyer can have various defense strategies to fight against the allegations. Some of the defenses include:
- You had consent to keep the child, or the parent gave you consent
- You did not threaten the alleged victim with arrest
- The alleged victim did not face the risk of injuries
- The alleged victim was not kept under duress
- You falsely imprisoned the alleged victim in self-defense, or you were protecting others.
The charges for this offense are prosecuted as felony offenses. If you get convicted of the crime, you are likely to face county imprisonment lasting 3 or 5 or 8 years. Additionally, based on the facts of the offense, you may face charges on other crimes that can lead to more severe penalties. You can be charged with:
- Battery or spousal battery
- Kidnapping or child abduction
- Murder if the alleged victim dies
PEN 653b – Loitering at a School
Violations of PEN 653b can be charged alongside or instead of child abduction offenses. If you wonder at a public place or in a school where children assemble without legally needing to be there or intending to commit an offense, you violate this law.
If you are accused of this, you will face misdemeanor charges. On the other hand, if charged with attempting to abduct a child, your lawyer can persuade the prosecution to charge you with this offense instead because it carries lesser penalties.
Find a Criminal Lawyer Near Me
As earlier discussed, a child abduction conviction carries severe penalties if found guilty. However, with an experienced lawyer, you can fight these allegations against you and get acquitted or a favorable outcome. The lawyers at The Los Angeles Criminal Defense Attorney are well qualified and experienced to defend you against these allegations. Call us at 310-564-2605, and let us fight against the charges.