Dealing with child abduction cases is always challenging. Even law-abiding individuals may find themselves facing legal issues due to misunderstandings, false charges, or complex situations. If you or someone you know is facing child abduction charges, it is crucial to contact a criminal defense attorney without delay. They can provide the necessary guidance and support throughout the legal process.

If you have experienced personal and professional harm as a result of being accused of abducting a child, even in cases where criminal charges have not been filed, the California Criminal Lawyer Group in Fresno is here to assist you. Our team is dedicated to helping you protect your legal rights and public image so that you can get back to your regular life.

Understanding Child Abduction Under California Law

Even if you are the biological parent of a minor, it is illegal to abduct a child in California. According to California PC 278, child abduction is defined as the intentional or unlawful act of removing a child from the custody of his or her parent or legal guardian.

The main purpose of PC 278 is to shield parents and guardians from the fear of having their child taken away against their will by a stranger or even by the other parent.

When you abduct a child, you are committing a felony against the parent or guardian, not the child. This is because the parent or guardian is responsible for the child's care. It is important to understand that even if the child did not object or allow you to take them away, you are still legally accountable for your actions.

Elements of the Crime

To convict you of a crime, the prosecutor must demonstrate the truth of specific aspects of the child abduction allegation. These aspects are commonly referred to as "components of the offense." The California law outlines four categories of crimes:

  1. You took the minor from their legal guardian with malice. The word "maliciously" is crucial in this situation because it establishes that the prosecution must prove your intent to obstruct, mislead, or harm another person.
  2. The child who was abducted was not yet eighteen. If the alleged victim was older than eighteen, the case may be considered either abducting or wrongful detention.
  3. When you abducted the child, you were not the child's legal guardian.
  4. You intended to detain or hide the child from their parent or legal guardian. In other words, your goal was to prevent the youngster from communicating with their legal guardian or custodian when you took action.

Note that to be found guilty of abducting a child, you must prove that you intentionally and maliciously took the child away from their legal guardian. If the situation arose from an accident or misunderstanding, you cannot be held accountable for the crime of child abduction.

Legal Definitions and Terms

In cases involving child abduction, the following are some of the most commonly used legal terms:

Entice

This refers to the process of manipulating a minor's desires and persuading them to follow your instructions. In this case, there is no need to resort to force to separate the child.

Malicious

When you engage in behavior that causes harm or anger to someone else, that behavior is considered malevolent.

Detain

The act of preventing a child from returning to his or her parent or legal guardian is known as this. Penal Code 278 will find you guilty if you have the intent to hold such a child.

Custodial Rights

These are the legal rights that a guardian has over a child in terms of providing physical care and monitoring. Parental or legal guardian custody is awarded when:

  • The court has issued an order granting custody.
  • He or she is the biological parent of the minor, and his or her custody rights have not been revoked by a court.

Legal Custodian

On occasion, the court has the authority to revoke the custody rights of a biological parent. In such cases, custodial rights may be granted to another individual or entity, such as a community group or a legal guardian.

Your partner or the other parent of your child may have the opportunity to retain your rights if the court decides to take them away from you. Furthermore, if you have abandoned your children or denied them custody, you may forfeit your custodial rights.

Differences Between Kidnapping and Abduction

Abduction and kidnapping are often confused, but it's important to note that California laws stipulate that kidnapping offenses carry harsher penalties compared to abduction crimes.

California kidnapping is defined by PEN 207 through PEN 209. 5 as the act of forcibly relocating another individual to a different location without their permission. Unlike abduction, kidnapping requires the victim to be taken with the perpetrator. Force or coercion is not necessary when abducting someone.

Kidnapping occurs when an individual of any age abducts a child, while child abduction specifically refers to the incarceration of juveniles under the age of 18. It is important to note that abduction charges carry even harsher penalties when the victim is younger than 14 years old.

An additional aspect of an abduction offense is that it does not necessarily involve the relocation of the child. If you hide the child in a place where their legal guardian cannot find them, you may face charges of abduction. In contrast, kidnapping involves forcibly removing the victim against their will and transporting them to a different location.

Is a Parent Able to Abduct Their Minor?

Under California law, a parent may face charges of child abduction if they lure and conceal their child. Child abduction can also result from violating the court's orders regarding visitation and custody of the child.

Parents have the authority to remove their children for several reasons. Here are a few examples:

  • As a parent, you naturally desire to be more involved in your child's life and for them to depend on you.
  • You may wish to deny the other parent the ability to raise your child.
  • If you have concerns that the other parent of your child may expose him or her to inappropriate behavior or instill certain values.
  • Your primary intent in abducting your child was either to maintain contact with them or to compel a reconciliation with an ex-partner.
  • Your primary objective was to protect your child from the psychological or physical abuse that the other parent would inflict.
  • Revenge or payback for something your partner did to you.
  • The fear of losing custody of your child.
  • You may believe that your partner's problems are similar to yours, and you may be concerned about how they could potentially impact the child.

Penalties and Repercussions of a Child Abduction Charge

Child abduction is classified as a "wobbler" under the statutes. The jury, in this case, will be responsible for determining whether the charge against you, as outlined in Penal Code 278, will be treated as a misdemeanor or a felony. To reach a verdict, the jury must carefully consider the specific details of the case and your prior criminal history.

A misdemeanor conviction can result in a potential sentence of up to one year in jail, a maximum fine of one thousand dollars, or both.

If you are facing charges of felony child abduction, you may be subject to the following penalties:

  • A year in jail.
  • Serving probation.
  • A $10,000 maximum fine.
  • A term of two, three, or four years in prison.

If you are found guilty of abducting a child, you will also be responsible for paying the victim's fees and the expenses incurred in finding and returning the child. These additional penalties will be in addition to the ones mentioned above.

Factors That Aggravate Child Abduction Charges

In determining the appropriate sentence for the child abduction charge, a California court will consider any current aggravating circumstances. Similarly, jurors use these considerations to determine whether to charge you with a felony or a misdemeanor.

According to California PC 278. 6, the following elements are considered aggravating factors:

  • The age of the child at the time of the offense.
  • Was the abduction of the child a violation of their right to an education?
  • Did you change their appearance after abducting the child?
  • Have you ever faced accusations of child abduction, or did you intend to do so?
  • Have you tried to return the child to the parent with custody rights or their legal guardian?
  • Have you moved the minor outside of the US?
  • Was the abducted minor hurt or mistreated after the incident?
  • Did you physically harm the legal custodian in any way?
  • Was the child in danger of getting physically sick or injured?

Mitigating Factors

The jury should take into consideration specific mitigating facts that your defense attorney mentioned, despite the possibility of the prosecutors presenting aggravating circumstances in the child abduction case.

The criminal defense lawyer may offer several mitigating factors, including:

  • The child was able to return safely thanks to the trustworthy information and assistance you provided.
  • You returned with the child unharmed before your arrest.

Defenses Against California PC 278 Charges

Under Penal Code 278 of California, there are legitimate defenses available to individuals who are facing accusations of child abduction. It is worth noting that charges of child abduction are not uncommon. The effects are significant for both the child's welfare and your rights. Fortunately, you can collaborate with an experienced criminal defense attorney who can assist you in reducing or dismissing the charges.

Potential defenses against a violation of California PC 278 may include the following:

There Aren't Any Active Court Orders

The police can only file an accusation against you if a court ruling prohibits you from communicating with the child. Both you and your co-parent share equal rights to child custody, as long as the judge has not revoked either parent's custodial rights.

Furthermore, if you are the child's biological parent and your custody rights have not been revoked, you have the option to take the kids with you for the entire weekend. If the other parent sues you for allegedly abducting the child, it is highly advisable to seek legal counsel, even if you have custody rights.

An Emergency Situation

Abducting your child after your custody rights have been revoked is illegal. However, under certain conditions, there may be a possibility of having your charges dropped. Some examples of such cases include:

  • You were concerned about the safety of your child.
  • When there was a domestic abuse episode, you decided to remove your child from the presence of the other child.
  • You disregarded the court's directive to relinquish custody of the child due to unforeseen circumstances. After the designated 24-hour period with your child had expired, you chose to notify the guardian or custodial parent.

You Had a Right to Have the Child in Your Care

You do not require your spouse's consent to remove your child at any time if you are the legal custodian. However, it is important to note that intentionally withholding your child from yourself to commit crimes is against the law.

For instance, there is a significant risk of violence erupting after a disagreement with your significant other. However, it is important to note that removing your child from the other partner's home without their consent and not disclosing their whereabouts may not be legally advisable. It is crucial to prioritize the safety and well-being of your child while also considering the legal implications and potential consequences of such actions.

If the child sustains any injuries, becomes a victim of psychological abuse, or is deprived of proper clothing, food, shelter, or protection after you have removed them from the other parent who has custody, you may be charged with a serious crime.

You Removed the Child From A Parent Who Did Not Have Legal Custody

You will not be held responsible for violating California PC 278 as the court recognizes that you removed the child from the other parent, who does not have custody rights. However, it is important to note that depending on the specifics of the case, the judge may accuse you of child abduction.

After escaping from a domestic abuse episode, your partner can take the minor and leave them in the care of a neighbor. When you retrieve your loved one from the aforementioned neighbor, you are not breaking the law by abducting a child.

You Did Not Mean Any Harm When You Took the Minor

Malicious intent is a crucial element of the crime in a lawsuit involving abduction. The prosecution must therefore demonstrate in court that you had malevolent intent when you removed the minor from their rightful guardian.

When you remove a child from the custody of their legal guardian because you believe they pose a threat to their safety, you violate PC 278. In this situation, seeking legal protection through self-defense is the most appropriate course of action. To demonstrate that you acted in the child's best interests, it is crucial to seek the assistance of an experienced attorney. However, it is important to note that if your intention was solely to upset your partner, who is the parent with custody rights, you may still face child abduction charges.

It is important to remember that this legitimate defense is effective in cases where the minor was hidden until your arrest. If you have abducted your child due to a potential threat to their safety, it is crucial to notify the minor's rights office or law enforcement.

You Were Falsely Accused

Mistaken identity and false accusations are among the best defenses against the abduction of children. In cases where the complainant wrongly accuses you or law enforcement mistakenly believes you to be someone else, the presumption of innocence will apply.

During divorce proceedings, false accusations are unfortunately common. For instance, if you and your ex-partner are going through a divorce, the court might grant one of you custody rights. In an act of vengeance, your ex-spouse may wrongfully accuse you of child abduction, even if you took the child in good faith.

People can occasionally resemble each other, so it is possible that the person who is to blame shares similar physical characteristics with you. However, since you are not at fault in this situation, if you have been detained, you will have no explanation to give.

Lack of Evidence

Prosecutors must present abundant and substantial evidence against the defendant in court. If the standard of sufficient proof is not met, the court cannot convict you of child abduction.

By working with a skilled criminal defense attorney, you can have confidence that if the prosecution fails to present sufficient evidence during the trial, you will be found not guilty. It is important to understand that when you commit the act of abducting a child, you are violating the law that protects the parent or legal guardian, not the child. Consequently, you can be convicted of child abduction even if your child willingly accompanies you after your parental rights have been revoked.

Relevant Proof for Your Legal Defense Plan

Divorce proceedings and domestic abuse can be emotionally draining. The prosecution may go to extreme lengths, such as attempting to have you removed from your child's life or accusing you of child abduction as a form of retaliation. While you have legal defenses available, it is crucial to have concrete evidence to support your claims for the best possible outcome.

In court, you may present the following evidence:

  • Eyewitness reports consist of statements from family members and close friends of the family.
  • A recording of the event in audio or video format.
  • The evidence provided by the complainant in earlier prosecutions, included drug addiction, mental health issues, and a criminal history.
  • Documents containing family court orders.
  • Voicemails, emails, or messages from the complainant.

Child Abduction Crime Exemptions

Every state has laws that protect the rights of its residents. Legislation on child abduction ensures that children's welfare is safeguarded, even in cases where spouses quarrel, get divorced, or experience domestic abuse.

In certain limited instances, the court may allow you to deviate from statutes due to your close relationship with and understanding of your child. However, to safeguard your child's best interests, you must demonstrate that you broke the law.

Therefore, if you genuinely believe that the other parent with custody rights may pose a threat to your child's safety, the court cannot find you guilty of abducting your child. However, you should comply with the law by promptly responding to these situations and documenting them as soon as you pick up your child.

All that is required of you is to:

  • Declare that you have removed the child and file a report about the situation with the district attorney's office.
  • Utilize the Parental Kidnapping Act to establish a consistent custody order.
  • When filing a custody petition, it is important to consistently use the Uniform Child Custody Jurisdiction Act.
  • Inform the District Attorney of the current whereabouts of the child.

Charges Related to Child Abduction

In addition to or instead of charging you with PC 278, the prosecutors may also prosecute you with other similar offenses. Here are a few examples:

Deprivation of Custody

PC 278 and PC 278. 5 primarily differ in their target audience. The former focuses on parents or individuals who do not have custody rights over the abducted child, whereas the latter includes parents who do have custody rights.

Violating the other parent's visitation and custody rights can lead to custody deprivation charges. The prosecution of PC 278. 5 considers it a wobbler offense, which is generally seen as less serious than the offense outlined in PC 278.

School Loitering

The prosecutors have the option to combine PC 278 with PC 653b, or they could choose to apply one in place of the other. Loitering at a school refers to spending extended periods with malicious intent or without a valid reason in areas where children gather, such as playgrounds or schools.

PC 653b represents a misdemeanor. If you are facing charges related to alleged child abduction, your lawyer may be able to assist you in having the charges dropped or reduced.

Find a Fresno Defense Attorney Near Me

Facing accusations of child abduction can be a frightening experience. However, you don't have to face it alone. Our Fresno attorneys at California Criminal Lawyer Group are here to provide assistance and support. If your case goes to trial, our dedicated team will represent you and strive to have the charges dropped or reduced. Moreover, our skilled negotiators can work diligently to persuade the prosecution to drop the charges even before the matter reaches trial. We are committed to fighting for your rights for the best possible outcome for your case. Call us today at 559-712-8377.