Child Abduction

Child abduction in California is a common offense where the accused takes a minor without the consent of the lawful custodian. California treats child abduction as a serious offense with the possibility of time in state prison.

The court could charge you with child abduction even if you are the biological parent or relative of that child. Darwish Law understands the complexity of the legal procedures involving convictions for child abductions and the stress you are experiencing in the face of a conviction.

We offer compassionate and professional defense services and advice in Santa Ana to help you navigate the legal justice system and defend yourself against the charges you are facing.

Child Abduction in California PC 278

California penal code 278 PC defines child abduction as the crime of taking a child away from his or her parent or legal guardian when you do not have the right to custody. Child abduction is different from kidnapping because it is an offense against the custodial rights of the legal guardian or the parent.

Child abduction charges are common in divorce and separation proceedings where the slightest acts could lead to a criminal conviction. If you are charged with the offense, you must understand the crime and the possible defenses you can use to fight these charges.

Before it can secure a conviction, the prosecution must prove the following elements of the crime beyond a reasonable doubt:

  • You maliciously took, concealed, enticed away, kept or withheld a child (any person under 18 years)
  • You had no right to custody of the child.
  • You intended to conceal the child from its lawful custodian.

Acting with malice implies that you intended to injure, annoy, defraud, or disturb another person. A lawful custodian is a person whom the law has granted the right to exercise physical care and control of the child. You also have the right to custody of a child if:

  • You are the child's parent, and the court has not revoked your parental or custodial rights.
  • The court granted you a court order to assume custody of the child.

Withholding a child means maintaining the child's physical possession (regardless of the consent or resistance of the child) and delaying or preventing the child’s return to its parents or lawful custodian.

Child abduction differs from kidnapping. The latter involves the use of threats or force to move a child over a substantial distance. However, child abduction does not require that you take the child forcibly – the court can charge you for the offense even when the child voluntarily left with you and enjoyed your company.

Therefore, it is not a defense to state that the child consented or intended no harm to the child. By abducting a child, you violate the lawful custodian's right to the child; thus, you harm that custodian.

You could also be charged with child abduction even if you are the lawful custodian of the child. PC 278.5 prohibits a legal custodian from interfering with the visitation rights of the non-custodial parent. In this case, the prosecution has to prove the following elements of the offense beyond a reasonable doubt:

  • You took or withheld a child (any person under 18)
  • You acted so with the intent of depriving another parent of the right to custody or visitation.

Parents, grandparents, and foster parents are commonly charged with child abduction when they try to deny the legal custodian the right to their children. For example, a grandmother is awarded custody when her daughter is serving time in jail. However, she refuses to return the child after her daughter completes her sentence.

You can also be charged with deprivation of custody against a government body or agency if you take your child from their protection. For example, if your children were placed with child protection (physical custody) and managed to get them (without the authorization of CPS), you could be charged with deprivation of custody.

California also has jurisdiction for child abduction cases involving non-residents of California if:

  • The abducted child was found in California
  • The child is a resident of California
  • The lawful custodian or person with visitation rights was a California resident when you abducted the child

Legal Defenses for Child Abduction

Once you are charged with child abduction, you must contact a lawyer immediately. Even if a misunderstanding led to the charges, the prosecution would pursue the case as if you had the intent to commit the crime.

An attorney can evaluate your case and determine the best possible defenses you can use. The common defenses for child abduction include:

1.      You Did Not Act with Malice

Malicious intent is one of the requirements for a conviction of child abduction. However, if you did not intend to harm, injure, defraud, or disturb the victim, you are not guilty of child abduction.

The court cannot get into your mind to determine what your motivations for taking the child were. However, it can examine the actions you took before and after the act to establish your intent.

For example, it is Matt's weekend to have the children, and he takes them out of town to visit their grandparents. However, the grandparents develop a sudden illness, and Matt has to stay overnight. His ex-wife thinks that Matt disappeared with the children and is hiding them at their grandparents', so she reports a violation order and child abduction.

Matt can defend himself by asserting that he did not act with malice since unavoidable circumstances prevented him from returning the children at the right time.

2.      The “Victim” is not the Legal Custodian

Child abduction charges apply when the defendant deprives the lawful custodian of the right to have the child. Lawful custodians could be the parents of the child or any guardians given parental rights through a court order.

Therefore, if the victim is neither the parent nor the lawful custodian, you cannot be charged with child abduction. Such a defense would apply when a parent takes his or her child from the grandparents (who do not have custodial rights to the child).

Therefore, that person cannot claim that you abducted a child to whom he or she has no custodial rights.

3.      You Had Custodial Rights to the Child

Individuals without the rights to custody over a child can be charged with child abduction. You still have your custodial rights if:

  • You are the parent of the child, and the court has not revoked your parental rights
  • You are a step-parent through step-parent adoption, and you still have those rights
  • You have joint custody with the other parent
  • You are the legal guardian of the child

For example, if your wife takes your child on a trip without informing you, she cannot be guilty of child abduction. However, if he or she stays with the child for an extended period, she could be guilty of the offense, since the act is depriving you of the custody of your child.

4.      False Accusations

False accusations are rampant in family law matters. Whether the other party is trying to have you lose your parental rights or intends to take revenge, false accusations are damaging.

False accusations also arise due to mistaken identity; for instance, the offender looks like you.

These accusations are more likely to happen when the couple is going through divorce, separation, or domestic violence proceedings.

Contact an attorney as soon as you learn of the charges based on false accusations. Your attorney can help you straighten out the details and prevent a wrongful conviction.

5.      Insufficient Evidence

Criminal courts have a high standard of proof that requires the prosecution to prove all elements of the offense beyond a reasonable doubt. Therefore, the prosecution will get all the possible evidence to show that you are guilty of child abduction.

However, the high standard of proof also allows you to challenge the evidence and claims by the prosecution to cast doubt on the case. You will have to get the relevant evidence to support your arguments and assertions, which a child abduction attorney can help you with.

You could also challenge the methods the prosecution used to obtain the evidence, for instance, if the police coerced you into a confession or searched your property without a warrant. 

6.      The Legal custodian knew the Whereabouts of the Child

Child abduction charges could arise if you fail to return children after the visitation period expires. The custodial parent could worry that you took the child to deprive him or her of the child's custody.

The law requires that you notify the other parent or lawful custodian of circumstances that could prevent returning the child within the agreed time.  

This defense will also work if you return the child to the lawful custodian as soon as possible. For instance, you could find alternative transportation if your car breaks down.

7.      The Victim was Not a Minor

Child abduction cases apply only when the child is a minor. Such cases can arise when divorced parents have visitation and holiday arrangements with their teenage children; for example, the child spends alternate holidays with the mother or father.

For example, your daughter turns 18 before the Christmas holiday, which she is supposed to spend with her mother. If you ask her to spend Christmas with you and she agrees, you cannot be guilty of child abduction since she is an adult. 

8.      You Were Protecting the Child

Sometimes, the lawful custodian is a risk to the safety and well-being of the child. For example, if the lawful custodian is likely to inflict bodily or emotional harm, you can take that child away from that person to avoid imminent danger.

However, you must:

  • File a report with the DA that you took the child within ten days
  • File for custody of the child under the Parental Kidnapping Act and the UCCJEA
  • Notify the DA about the current contact information for the child
  • You file a custody proceeding within thirty days of the potential child abduction offense.

When using this defense, you must also prove why you believed the lawful custodian was a threat to the safety of the children. Just a hunch that the children were not safe will not save you. You need concrete proof such as a history of domestic violence, threats the lawful custodian made, or evidence of physical injuries inflicted on the child.

If you are not a lawful custodian and take a child from its lawful custodian, you must speak to an attorney as soon as possible to prevent you from being charged and convicted for child abduction or the more serious charge of kidnapping.

Penalties of Child Abduction in California

Child abduction is a California wobbler meaning it can be charged as a felony or a misdemeanor depending on the circumstances of that case.

Misdemeanor child abduction attracts a maximum sentence of a year in county jail and a fine of up to a thousand dollars.

The sentence for felony child abduction is either two, three, or four years in state prison and a fine of up to $10,000. 

Child abduction through deprivation of custody is also a wobbler offense in California. When charged as a misdemeanor, the penalties include:

  • Misdemeanor probation
  • A maximum term of one year in county jail
  • A maximum fine of $1,000

The penalties for a felony conviction will include formal probation, a state prison sentence of sixteen months, two or three years, and up to $10,000 in fines.

The sentence you get will depend on mitigating and aggravating circumstances in the case. Mitigating circumstances include returning the child or aiding the safe return of the child.

Your defense attorney will use these mitigating circumstances to convince the court to give a lenient sentence.

The court could also impose harsher penalties, including a felony conviction if certain aggravating factors such as the following exist:

  • You harmed or injured the child in any way or exposed the child to a great risk of harm.
  • You abandoned the child.
  • You have not returned the child to its lawful custodian.
  • You denied the child the education.
  • You abducted the child for a relatively long period.
  • You threatened violence against the legal guardian or the child.
  • You fled the country with the child.
  • You attempted or successfully altered the physical appearance of that child to avoid being recognized.
  • The child was quite young at the time of the abduction.
  • You abducted more than one child (in which case you will be charged with multiple counts of child abduction)

Other consequences of child abduction include:

  • Loss of firearm rights if you are convicted for a felony
  • Loss of visitation or custody rights
  • Immigration consequences if the court rules your case as an aggravated felony
  • Court-ordered restitution to cover the costs incurred in locating the child

International Parental Child Abduction

Custody battles over children, especially after divorce or domestic violence, are the leading cause of child abduction. Most abduction cases are by family members, including parents, grandparents, or relatives of the child.

Most of them leave their regular residence and move to another state or country. Abducting a child and taking him or her abroad could result in international abduction charges in federal court or stiffer penalties if you are convicted under California state laws.

The federal government charges international parental child abduction as a felony with up to three years in federal prison.

International child abduction cases are settled through the Uniform Child Custody Jurisdiction Enforcement Act, which helps determine the custody right and facilitate the safe return of the abducted child to California or the nation or state of origin.

You could be guilty of international child abduction if you move with a child outside the country (even if you have custodial rights), and the other parent has visitation rights.

The government could enlist the help of the Hague convention to facilitate the return of children under 16 who have been abducted.

Expunging a Child Abduction Conviction

Luckily, you can get your conviction expunged if you meet the minimum requirements. Having a conviction expunged under PC 1203.4 protects you from most of the negative consequences of a conviction, such as problems with employment.

You are eligible to expunge your records if you were convicted for a misdemeanor charge and have served your term or completed your probation. Therefore, it is important to hire an attorney who will defend you so that you are not convicted for a felony.

Felony convictions are not eligible for expungement, but you can enjoy some freedom through a governor's pardon or obtaining a certificate of rehabilitation.

Find a Child Abduction Attorney Near Me

Taking your child for a few extra days against your visitation order, or intending to “punish” your ex could land you in jail for child abduction. You could also be held in contempt of court for violating a visitation or custody order.

Darwish Law defends you when you are charged with child abduction in Santa Ana. We take our time to build your case, review the available evidence, and represent you in court.

We have handled similar cases in the past with excellent results, including lesser sentencing, dismissals, and acquittals.

Call us at 714-887-4810 for a free consultation on your case.