Child Abduction

Child abduction is a potentially serious criminal offense. It is frequently confused with the crime of kidnapping, but they are legally distinct. If charged with the crime of child abduction, it is in the defendant’s best interest to immediately retain the services of a knowledgeable and experienced law firm like Leah Legal. We have the ability to give you the best possible defense in a court of law.

What is Child Abduction?

Child abduction is the unlawful confining or taking away (also known as asportation) of a victim under the age of 18. This is done against the will of the victim and/or the victim’s legal guardians. The act of confining said victim can also include detaining and/or concealing them. Child abduction does not necessarily consist of a forceful act as the perpetrator may entice the child away. In this scenario, the child willingly goes with the perpetrator, although it is under a false pretense and is still considered to be child abduction under California law.

It is specifically delineated under California Penal Code 278 PC. It can also be referred to as “child theft” or “non-custodial detainment”. Penal Code 278 PC is violated if a person willfully and maliciously takes away or hides a child from their legal guardian. The person committing the crime must have no right of custody over the child.

The crucial issue at the heart of any child abduction case is the question of right of custody. This is the legal concept by which a parent has physical care, control, and custody of a child under their supervision. Please note that under California law, a parent is automatically a legal guardian unless their parental rights have been limited or otherwise revoked. Right of custody can be granted to a person by way of a court order, such as a court-appointed legal guardian or an adopted parent.

Essentially, custody of a child includes a variety of legal obligations that must be followed. Willfully violating another person’s obligations by taking away or hiding the child from them will trigger a charge of Penal Code 278 PC. Please note that a charge of child abduction does not necessarily include moving the victim any distance from their legal guardian. Willfully hiding the child may be enough to trigger a charge.

What are the Two Types of Child Abductions?

Child abduction crimes can be essentially distilled down into two types:

  1. Abduction by a family member. This is also known as parental child abduction if the offending party is the parent of said child. This usually occurs when one or both parents have had their custodial and parental rights revoked or curtailed as a result of a judge’s ruling in family court.
  2. Abduction by a stranger. Although these types of abductions garner a tremendous amount of media coverage and sensationalized stories, they actually make up a small percentage of abductions nationwide. The vast majority of child abduction cases are perpetrated by a family member, either immediate or extended.

Revocation of parental rights is usually the result of child neglect and/or abuse. Even if the perpetrator is the biological parent of the child in question (which grants them a natural right to custody), the process of having parental rights revoked or limited suspends this right. It is important to note that though family court is a civil-circuit court, the judge’s orders are still legally binding and do carry legal consequences if violated. Due to a variety of factors, a family court judge can essentially determine a parent’s right of custody.

Abduction by a stranger is rarer. When it does happen, it is usually as a form of extortion to extract a ransom from the legal guardians. In some cases, it occurs when the perpetrator wants to adopt a child but does not go through the usual legal avenues and instead steals a child from the lawful legal guardians.

Is Child Abduction a Misdemeanor or Felony?

Child abduction is a criminal offense because it is part of the California Penal Code. This means that a prosecuting agency, usually the county District Attorney (DA), will pursue charges against the defendant. If said defendant does not plead out, then the case will go to trial in a criminal-circuit court in front of a jury.

Child abduction is the kind of criminal offense that is colloquially referred to as a wobbler. This means that depending on the specifics of the case, and the defendant’s potential criminal history, it can be charged as either a misdemeanor or a felony. Ultimately the DA will decide on how to pursue the charges.

If convicted of misdemeanor child abduction, then the defendant may face up to one year in a county correctional facility and a fine of up to $1,000. If the defendant is convicted of felony child abduction, then they may face two, three, or four years in a California state prison and a fine of up to $10,000.

The sentence for the crime would be determined by a judge at a sentencing hearing. There are various factors that may either increase or decrease the potential sentence. If the child was returned without any harm and the defendant worked with law enforcement to return the child, then these would be considered mitigating factors. These mitigating factors would generally result in a lighter sentence.

If behavior during the commission of the crime causes the judge to impose a harsher sentence, these are known as aggravating factors. In child abduction convictions, some aggravating factors include not returning the child, the child possibly being harmed or injured, the threat of violence against the victim or legal guardian, the actual use of violence against the victim or legal guardian, fleeing the country with the child, and changing the appearance of the child in an attempt to evade capture. If any of these aggravating factors are met, then the judge will likely impose the harshest sentence possible.

Because searching for a child is expensive for law enforcement, the judge may also order the defendant to reimburse the prosecuting entity and/or victim for any costs that may have accumulated due to the manhunt.

What is Parental Child Abduction?

Parental child abduction is the most common type of child abduction. It has a separate charge and is formally delineated under California Penal Code 278.5 PC. The formal charge is “deprivation of custody of a child or right to visitation”. This offense is considered less serious than child abduction because in these cases the perpetrator has some legal basis to claim the right to custody of the child.

Penal Code 278.5 frequently occurs during divorces that have become hostile and embittered. If there is a formal custody agreement as a result of the divorce settlement, then it means it was signed off on by the family court judge. In doing so, the judge granted right of custody to each parent with stipulations.

That means that if it is one parent’s designated visitation time and the other parent forcefully takes away or hides the child, then they are in violation of the custody agreement and in violation of the right of custody stipulations. These types of abductions can be perpetrated for any number of reasons, but are most usually a form of vengeance against a former spouse.

There are unfortunate cases in which one parent abducted a child or the children and fled the country with them. A court order from a judge is the most effective preventative measure against these types of child abductions. It can contain various provisions, including: 

  1. Prohibiting either parent from traveling internationally with the child.
  2. Requiring that either parent provides specific dates for the beginning and end of a visit.
  3. Requiring one parent, usually the one without primary custody, to have supervised visits.
  4. Requiring one or both parents to get approval from the judge to travel internationally with the child.
  5. Requiring the court or a third party that is neutral to keep the relevant documents, including passport, for the child.

It is also prudent to implement a Children's Passport Issuance Alert Program (CPIAP). This will alert either parent if an application for a child’s United States passport has been filed.

The punishment for violating Penal Code 278.5 is nearly the same as violating Penal Code 278 (child abduction), except that when convicted as a felony the defendant may face 16 months, two years, or three years as opposed to two, three, or four years in a state penitentiary. 

Other Charges Related to Child Abduction

Kidnapping and child abduction are related charges, although they are legally distinct and kidnapping is a great deal more serious. Child abduction can legally be considered a type of kidnapping. However, the crucial difference is that kidnapping is treated as a criminal offense against the person being kidnapped whereas child abduction is considered a criminal offense against both the child and the legal guardians of said child.

Kidnapping is delineated in sections 207 to 209.5 of California Penal Code and it occurs when the perpetrator uses force or threats to move the victim (either an adult or a child) a “substantial distance”. This substantial distance is formally defined as moving the victim to another country, state, county, or elsewhere in the same county. Furthermore, using “force or fear” means that the perpetrator actually used violence or threatened the victim with imminent violence. This is, for example, very distinct from a charge of child abduction, whereby the perpetrator may merely entice or conceal the child.

A kidnapping charge can become “aggravated kidnapping” if the following conditions are met:

  1. The victim is less than 14 years old.
  2. A ransom is demanded.
  3. The perpetrator inflicts death or bodily harm on the victim.
  4. The kidnapping occurs during the commission of a carjacking (California Penal Code 215 PC).

A simple kidnapping charge can result in a sentence of up to 8 years in a state penitentiary. However, aggravated kidnapping is an extremely serious crime, and can carry a sentence of 5 years to life.

Furthermore, child abduction charges sometimes include the confinement of the victim. This could potentially trigger the related charge of false imprisonment (California Penal Code 236 PC). This crime is committed when the perpetrator knowingly limits and/or inhibits another person’s freedom and/or their ability to move.

A simple false imprisonment charge is a misdemeanor. However, if the perpetrator uses any form of violence, as well as fraud and/or deceit, then it can rise to the level of felony false imprisonment. This crime can carry a sentence of up to 3 years in a state penitentiary.

A charge known as “contributing to the delinquency of a minor” (California Penal Code 272 PC) can be pressed against the perpetrator if they have no substantial relationship with the child that they abduct. If the perpetrator makes the attempt to establish a relationship for the purpose of persuading, enticing, luring, or transporting (or attempting of any of these actions), then they may be found guilty of Penal Code 272 PC.

The perpetrator must also have willfully avoided the consent of the child’s legal guardians for the charge to apply. The DA can pursue it as a misdemeanor or even as an infraction. Under California law, an infraction is the least serious offense that a citizen can commit. It only consists of a fine and no possibility of incarceration and/or probation. Traffic tickets, for example, are examples of infractions.

If the defendant wishes to plead out with the DA and accept a lesser charge, then contributing to the delinquency of a minor is the most frequent charge that they accept. It is a common tactic by defense attorneys and may be the best course of action, depending on the specifics of the case and the evidence that the DA may have. 

Possible Legal Defenses to a Child Abduction Charge

As mentioned above, the single most important factor in a child abduction case is the right to custody: who has the right to custody and when? These are the specifics of the case that will be extensively examined. If the defendant is a legal guardian to the child, then the defense team can argue that they had every legal right to take the child (or children) without the other parent’s consent. It is well within any parent’s right to take their children anywhere they please without having to inform anyone, as long as they were not taking the children with criminal intent or for some criminal purpose.

In these scenarios, however, the defendant may still face the less serious charge of contributing to the delinquency of a minor (California Penal Code 272 PC) if, in the process of moving their children, they physically harmed the children, severely emotionally abused the children, and/or were guilty of criminal negligence. This negligence occurs when the parent in question fails to provide the child with basic needs, including shelter, food, clothing, and medical care.

The defense may also argue that the defendant took the child from someone who had no legal custodial right over the child. In this scenario, the person who initially had the child was not the legal guardian of the child. If this is the case, then Penal Code 278 cannot be violated and the crime of child abduction never took place. This is a tricky defense, however, and depending on the specific circumstances of the case, it may still make the defendant vulnerable to other charges (like kidnapping).

In order to secure a conviction for child abduction, the DA must prove that the defendant acted maliciously. If the defendant had a reasonable belief that the child’s legal guardian may inflict harm on the child and that this harm was imminent, they could successfully argue that they had the legal right to remove the child from the possibility of said harm.

In fact, the DA has to prove every element of the case “beyond a reasonable doubt”. As a result, a frequently successful defense tactic is to cast doubts in the minds of the jurors by attacking specifics of the DA’s case. This may include poking holes and undermining eyewitness testimony. The defense may also make the convincing argument that the defendant is a victim of false accusations. If there is a contentious divorce related to the child abduction charges, this is a powerful argument to make. The defense can tell the jury that the defendant is merely the victim of a vendetta by their former spouse.

In certain cases, there may not be enough evidence to secure a conviction. The DA may know this and will try to offer the defendant a deal, but a skilled defense attorney could potentially see through that and advise their client on how best to proceed. If the attorney feels that the DA’s case is weak enough, they may push for a trial and secure an acquittal.

How to Find a Criminal Lawyer Near Me

Facing criminal charges can be a terrifying experience. Most people never have to go through it. If you are one of the unlucky ones, however, then you need a defense team in your corner that can give you the best legal counsel available. There are so many traps and potential pitfalls and you need someone like Leah Legal; we have the requisite experience, knowledge, and verve. If you are in Los Angeles or Southern California and are facing these charges, then call our Los Angeles Criminal Lawyer at 818-484-1100. Tell us your side of the story and let’s get started today!