19 May 23
Child abduction is a crime punishable under Penal Code 278. The law considers it a criminal offense to take, withhold, entice away, or conceal a child from their legal guardian or parent in violation of a court order or without valid permission. By this very definition, child abduction charges are not limited to strangers. Parents who take and withhold children in violation of custody orders could also face child abduction charges. Parents, stepparents, relatives, or guardians are some of the suspects in a child kidnapping.
Child Abduction by Parents of Family Members
Morally, the debate about child abduction ends with one question: Can you abduct your child if you are the parent, legal guardian, or family member, especially after a divorce?
While child abduction in moral conversations is open to interpretation, legally, you must adhere to the rules courts provide in custody orders. There are various reasons why parents, family members, or legal guardians abduct children. Some of the typical rationales include:
- Disagreements over custody or visitation arrangements — A frequent cause of parental child abduction is a dispute regarding custody or visitation agreements. Sometimes, the abductor feels they have been unfairly denied access to the child. They subsequently decide to take action by taking the child on their own.
- Fear of losing custody — Sometimes, a parent could abduct their child out of fear of losing custody. They could believe the other parent is unfit or the child is in danger. In this scenario, they could believe they had no other option but to take the child away.
- Parental alienation — Alienation occurs when one parent tries to turn the minor against the other parent. Sometimes, parents abduct their children to sever the child’s relationship with the other parent.
- Mental health issues — Parents could abduct their child due to mental health issues like depression or anxiety. They could feel that the child is the only aspect of their life that brings them happiness and may be unwilling to let go.
- Abuse or neglect — A parent or family member could abduct the child out of fear that the minor is being abused or neglected. They could believe the child is in danger and be unwilling to leave them with the other parent.
Note: Parental child abduction is a grave criminal offense. It can have enduring implications for the abductor and the child, irrespective of the motive.
What Makes Child Abduction an Offense?
The state has to prove the following as true to make its case:
- You physically took, withheld, or concealed a child by removing the child from the custodial parent’s care or failing to return the child after a visitation period. You become a custodial parent through a court order or by law.
- You did not have legal justification for taking, withholding, or concealing the child — Legal justification can include a court order granting custody or visitation rights to the defendant or consent from the legal custodian or parent.
- You acted with malicious intent — You acted willfully and with wrongful intent, meaning you knew your actions were illegal but took them anyway. Examples include acting to disturb, annoy, defraud, or injure another person.
Note: Child abduction is not a crime against the child. It is a crime against the parent from whom the minor was taken from.
Examples of actions that could result in prosecution under PC 278 include:
- A non-custodial parent takes their child from the legal custodian or parent without the parent’s consent or knowledge and keeps them hidden.
- A grandparent, relative, or family friend takes a child on a trip or outing without the legal custodian’s or parent’s consent.
- A parent violates a custody or visitation order and takes their child out of state or country without the legal custodian’s or court’s approval.
Child Abduction by Depriving the Right to Visitation or Custody
Under Penal Code 278.5, child abduction occurs when an individual deprives a parent of visitation or custodial rights.
You can be charged under this statute if you take, retain, entice away, withhold, or conceal a child to deprive a lawful caretaker of their right to custody or visitation of the child. The prosecution must prove that you intended to interfere with the legal custodian’s or parent’s custody or visitation rights.
Prosecutors have to prove the PC 278 elements outlined above with one variation: that you acted intending to deprive the legal custodian or parent of a right to visitation or custody.
Examples of actions that would result in prosecution under PC 278.5 include:
- A parent refuses to allow the other parent to exercise their court-ordered visitation rights, despite the court order’s requirement.
- A parent fails to return the child to their lawful custodian or parent after an agreed-upon period of custody or visitation time.
- A grandparent or other family member with no legal custody or visitation rights with the child refuses to return the child to their lawful custodian or parent after a visit.
- A parent relocates with the child without the other parent’s consent or without seeking court approval to do so. Therefore, he/she interferes with the other parent’s custodial rights.
Note: A minor or a youngster is somebody under 18.
Exceptions to Child Abduction
There is a limited exception to child abduction.
A parent can take or detain their child in violation of a custody or visitation agreement if he/she believes the child could suffer immediate bodily or emotional harm if left with the other parent or guardian. This exception is the “right of protective parent” recognized under Penal Code 278.7.
If a parent takes their child under this exception, they must immediately contact the District Attorney’s Child Abduction Unit and follow specific reporting instructions. Following the instructions carefully and accurately is essential to avoiding criminal charges. Failure to comply with the instructions could be interpreted as violating the custodial or visitation orders.
Child Abduction Vs. Kidnapping
People often mistake child abduction for kidnapping. However, the two are related but distinct offenses.
Family members or individuals with close relationships with the child are typically the ones who commit child abduction. The abductor often does not have the intention of physically harming the child.
Conversely, kidnapping entails the act of taking or restraining an individual against their will through the use of force, fear, or deceit. This offense could involve a ransom or other demands. Kidnapping can be perpetrated against individuals of any age. Further, the offender does not have to be a family member or close associate of the victim.
Kidnapping is considered a more severe offense compared to child abduction.
Defenses You Can Assert in a Child Abduction Case
There are several defenses you can raise in a child abduction case. They include the following:
a) Lack of Malicious Intent
A conviction for child abduction requires that you intend to deprive the kid’s lawful custodian or parent of their right to custody or visitation. The jury will likely return a not-guilty verdict if you did not have this intent.
An example of this situation is when a grandparent takes a child without the parent’s permission but with the motive of ensuring the child’s safety. He/she could not have had the necessary intent for a child abduction charge. In this case, the grandparent could argue that they acted in good faith. Furthermore, they can assert that he/she did not purposely deprive the parent of their custody or visitation rights.
b) You Had Lawful Custody
Asserting legal custody could serve as a legitimate defense if you had legal custody of the child or children when the supposed abduction happened. Having lawful custody means having the legal right to decide about the child’s care and custody. As a result, your activities do not violate the parent’s or guardian’s custody rights.
Merely having custody of the child is not enough to establish lawful custody. You must prove that you legally had the child during the alleged kidnapping. Furthermore, it must be evident that your actions were consistent with the terms of any applicable court order or legal agreement governing custody.
Some examples of evidence applicable in support of this defense include:
- A copy of the court order or legal agreement governing custody.
- Testimony from witnesses who can attest to your custody rights and the circumstances surrounding the alleged abduction.
- Documentation showing that you acted per the terms of the custody order or agreement. Examples include proof that you notified the other parent or guardian of your intent to take the child or that you returned the child as required by the order.
- Records or documentation showing that you had a good faith belief that your acts were consistent with the terms of the custody order or agreement, and
- Any other evidence that helps establish your actions as lawful and justified.
c) Emergency Circumstances
Under certain circumstances, a viable defense can be based on the alleged abductor acting out of necessity or emergency circumstances. The “necessity defense” or “emergency circumstances defense” can be invoked in these scenarios.
When asserting this defense, the alleged abductor should prove that they took the child due to a genuine belief that the child was in immediate danger. Additionally, it must be evident that no other practical alternatives were available to safeguard the child from harm.
This defense applies to cases where the child was in immediate danger of physical or emotional harm due to abuse, neglect, or other grave threats to their safety or well-being.
Additionally, the alleged abductor must also show:
- He/she believed in good faith that their actions were necessary to protect the child and
- He/she did not cause more harm than necessary to protect the child.
The defense bears the burden of proving that the defendant’s actions were justified under the circumstances.
d) You Were Falsely Accused
You can argue that you were wrongly accused of child abduction in the case. This defense is only successful if you demonstrate that the alleged victim’s accusations of child abduction are false.
This defense can be challenging to assert. Prosecutors will present witness testimony, documentation of custody arrangements, and other evidence to prove that you committed the child abduction crime. You must present your witnesses to disapprove of the prosecution’s version of events. However, an experienced attorney will provide the proper evidence for this defense.
In most cases, attorneys challenge the witnesses’ accounts, especially if there are inconsistencies in their testimonies. Alternatively, the attorney will argue that the evidence presented is circumstantial; therefore, the evidence does not definitively prove that a child abduction occurred.
This defense applies when an accuser makes false allegations in pursuit of revenge because of a jealous rage or to use the accusation/or conviction as leverage in a child custody battle.
e) The Parent or Legal Guardian in the Case Lost Custodial Rights
If a parent’s parental rights have been terminated due to neglect, abuse, or abandonment, taking a child away from that parent is not child abduction. The defendant could argue that they acted in the child’s best interests and that the other parent had no right to custody or visitation.
This defense requires evidence that the other parent lost parental rights due to neglect, abuse, or abandonment. The evidence includes court orders, child protective services reports, or other official documents demonstrating that the other parent had been found unfit to care for the child.
Penalties if Convicted of Child Abduction
Prosecutors decide which charges to pursue. You could face misdemeanor or felony violation charges based on the facts of your case.
If convicted of a misdemeanor offense, a conviction will likely result in the following punishments:
- A jail term of up to one year and/or
- A fine of up to $1,000
If convicted of a felony offense, a conviction will likely result in the following punishments:
- A 2, 3, or 4-year jail or prison sentence and/or
- A fine not exceeding $10,000
If you are convicted of abducting a child under PC 278.5, the misdemeanor penalties remain unchanged. However, imprisonment for a felony violation changes to 16 months, two, or three years, with a possible fine penalty of $10,000.
The Sentencing Hearing
The judge will evaluate different factors during the sentencing hearing to determine a suitable punishment. Judges consider factors including:
- The age and vulnerability of the child or children.
- The duration and severity of the abduction.
- The impact of the abduction on the child.
- The custodial parent, and
- The defendant’s criminal history and the likelihood of reoffending.
Judges also consider aggravating or mitigating circumstances. Aggravating circumstances inform a judge’s decision to increase the severity of the penalties. Conversely, mitigating factors can serve to lessen the severity of the sentence.
The following are some examples of aggravating circumstances:
- The length of the abduction.
- The child’s exposure to a significant risk of bodily injury or illness.
- Threats to inflict or inflicting physical harm on:
- The parent.
- The legal guardian of the child or.
- The child during the abduction.
- Substantially altering the name or appearance of the minor.
- Abandoning the child during the abduction.
- Previously threatening to abduct or previously abducting the child.
- Taking the minor out of the country.
- Failing to return the child to the lawful custodian.
- Denying the child appropriate education during the abduction.
Some of the mitigating factors judges consider include the following:
- Returning the child or children unharmed or
- Assisting in the child’s safe return.
Will a Conviction Affect My Immigration Status?
Yes, child abduction can have immigration consequences.
A conviction for child abduction can lead to deportation from the country for non-US citizens. Under federal immigration law, certain crimes, including child abduction, are considered “crimes of moral turpitude.” These crimes can make non-citizens inadmissible to the country or subject to removal proceedings.
Furthermore, even if the offense is not regarded as one involving moral turpitude, a conviction for child abduction could have immigration ramifications, for example, affecting your ability to acquire a visa or green card.
Federal Laws Against Child Abduction
There are federal laws in place that criminalize the abduction of children. The most significant of these laws are:
- The International Parental Kidnapping Crime Act (IPKCA) of 1993 — This law makes it a federal crime to remove a child from the United States or retain a child outside of the United States with the intent to obstruct the lawful exercise of parental rights.
- The Uniform Child Abduction Prevention Act (UCAPA) — It provides a framework for preventing child abduction and addressing the interstate jurisdictional issues that arise in child abduction cases.
Contact a Van Nuys Criminal Defense Attorney Near Me
Child abduction is a grave offense that carries severe repercussions. It can devastate the child, the parents or legal guardians involved, and the broader community. It is best to familiarize yourself with the applicable laws and legal defenses to avoid unintentional violations. Additionally, doing so ensures that the child’s best interests are protected.
If you or someone you know is facing child abduction charges, seeking legal representation immediately is your best option. A skilled criminal defense attorney in Van Nuys can offer valuable advice and assistance throughout the legal proceedings, working diligently to safeguard your rights and interests. Contact Leah Legal at 818-484-1100 for more information.
