A parent can accuse the other parent of abducting their child. These cases are common, especially during bitter divorces and separations.
While you can violate the California Penal Code 278, the estranged parent can decide to report the crime of child abduction to have the child returned. Other parents do this to have their partners’ rights to custody revoked.
When you and your spouse have equal rights of custody over your child, none of you could face child abduction charges. Your custody rights must get stripped before the prosecution can charge you for violating PC 278.
If you have no rights to custody over your child and you entice them to go with you, you subject yourself to criminal charges. Because this type of charge is severe under California law, we at the Orange County Criminal Defense Attorney Law Firm are ready to defend you. Get in touch with us to help you build a good defense strategy.
California’s Definition of Child Abduction
According to California law, abducting a child, even if you are a biological parent, is illegal. California Penal Code 278 PC defines child abduction as the malicious or unlawful removal of a child from their parent or guardian who has physical and legal custodial rights.
The primary focus of PC 278 is safeguarding parents from anxiety experienced if someone else or the other parent takes away their child without their consent.
Since a parent or guardian cares for the child, you commit an offense against the parent or guardian and not their child.
You subject yourself to criminal liability if you abduct the child even if the child didn’t resist, or they allowed you to take them away.
Elements of a Child Abduction Crime
Like any other crime in California, child abduction needs the existence of particular components. These elements are what make up a crime.
Before the court can convict you for violating PC 278, the prosecution must offer proof beyond a reasonable doubt that:
You had no custodial rights of the child
You had the intent to hide the child from their legal parent or guardian
You lured or enticed and detained the child illegally
The child was below the age of 18 years during the time of the abduction
Definition of Terms
Below are the common legal terms in child abduction cases.
A malicious act is when you act in a manner that results in injury or anger to someone else.
Entice refers to the act of instigating desire in the child and making them follow your instructions. Here, you don’t need to use force to take away the child.
The act of keeping the child to prevent them from returning to their guardian or parent. You are charged under PC 278 if you had the intent to detain the child.
These are rights bestowed to a parent or guardian to offer physical care and have control over their child. A guardian or parent has the right of custody to a child if:
The custody is a court order
They are a biological parent of the child, and the court has not revoked their rights of custody
At times a biological parent's rights of custody are withdrawn by the court. Here, the custody rights are given to someone else, a community agency, or a guardian.
Note that the other parent or your spouse could retain the rights if the court withdraws yours. You could also lose your rights to custody if you have rejected custody of the child or have dumped your loved ones.
Kidnapping vs. Abduction
Many people often confuse kidnapping with abduction. Under California law, kidnapping crime carries more severe penalties than abduction.
California Penal Code 207 to 209.5 states that kidnapping is the moving of someone else to another place against their wish. Unlike abducting, kidnapping involves forcing your victim to go with you. With abducting, you don't need to use any form of force and coercion.
While child abduction involves detaining persons of the age of 18 and below, kidnapping is a crime committed to people of all ages. Note that the punishment for the crime of kidnapping gets more severe if the victim is of the age of 14 years and below.
Another characteristic of child abduction is that you don’t need to move the child to another location. Hiding the child where the guardian cannot find them could get you convicted for abduction. But with kidnapping, you must transport the victim to another location and against their wishes.
You commit the crime of kidnapping against the child, but you commit child abduction against the parent.
Can a Parent Abduct their Child?
According to California law, a parent gets accused of child abduction if they entice and hide the child. The abduction act could result in a violation of court orders surrounding the child’s visitation and custody rights.
There are myriad motives why you, as a parent, would take away your child. These include:
You want more recognition in your child’s life or need them to be dependent on you
You are looking to deny the other parent the chance to raise the child
You are afraid that the other parent could expose the child to certain behaviors or instill particular values
Your primary aim of abducting the child was initiating contact or forcing a reunion with your estranged spouse
Your primary intent was to take away the child from the risk of physical harm or emotional trauma the other parent poses
You abduct the child to revenge for wrongs the other parent did to you
You abduct the child because you’re afraid of losing rights of custody
You think your frustrations are similar to your spouse’s and presume that they might hurt the child
Non-Married Biological Parents and Child Abduction
If you are a male parent and you never got married to the mother of your child, you need to establish your parental responsibilities before the court can grant you rights to custody.
You subject yourself to child abduction liability, as the biological father, if you take away your child without a valid reason.
As the legal defenses section in the write-up explains, you could defend that you protected the child because you believed that the child suffered physical and emotional trauma.
All that is needed is reporting to the District Attorney (DA) before ten days elapses after taking the child. If your report is genuine, the DA starts a paternity action and issues a Domestic Violence Restraining Order (DVRO) to have the child's well-being protected.
Divorced Parents and Child Abduction
If you divorce your wife and have a child together, you need to seek custody orders from a court of law. Child custody orders are imperative to avoid possible accusations of child abduction.
Physical Child vs. Legal Child Custody
You want to know the disparity between legal and physical child custody. Speaking of physical custody, you only have access to your child for a specific period.
The court can bestow either sole or joint physical custody, depending on the circumstances. With joint physical custody, the parents share custody rights to stay with the child physically for a designated period. Here, one parent stays with the child more than the other.
Sole physical custody denies one parent the right to live with the child at any given time. Here, the child stays with one parent. The court chooses whether the parent without rights to custody can or cannot visit.
Legal child custody is where you have the right of decision making on behalf of the child. You can decide what school the child attends, what health-facility they should receive treatment in, and many other legal decisions. The court can bestow legal custody rights to one or both parents. If you breach legal custody rights, you risk getting charged with child abduction.
Also, if your parental rights get revoked in actions such as stepparent adoption or juvenile dependency, you are charged with child abduction if you keep or conceal your child. If you refuse to establish paternity or have your rights to custody withdrawn in any of the actions, you cannot present legal defenses for your PC 278 crime. But the juror could be lenient if you contacted the law enforcers immediately.
Married Biological Parents and Child Abduction
Married biological parents have equal rights to their child’s custody. These include taking and keeping the child jointly or individually, even when the parents are in disagreement.
If you take your child away, your spouse could file a request for order (RFO). Here, the rights to custody of the child get established, and the child is returned to the other parent.
In some scenarios, your spouse could file a legal separation or divorce together with the legal and physical custody rights of the child. If granted the rights, you commit the crime of child abduction if you keep the child. If in an emergency, you take and keep the child in a foreign nation, your spouse could file an emergency ex parte petition.
The aim of the petition is to establish rights to custody and visiting restrictions. Your spouse, adding to the appeal, could file a divorce petition along with a child abduction claim.
Sentencing and Repercussions of a Child Abduction Conviction
California law recognizes the crime of child abduction as a wobbler. Here, the juror could consider your PC 278 case as either a felony or a misdemeanor. The juror, before making the decision, they must consider your previous criminal record and circumstances of the criminal offense.
If you are charged with a misdemeanor, you risk jail time in a county jail for not more than a year, a fine not exceeding $1,000, or both.
If charged with felony child abduction, you risk penalties like:
Jail time in a county jail for a year plus probation
A fine that doesn’t exceed $10,000
Jail time in the California state prison for two years, three years, or four years
Adding to the above possible penalties, if convicted for child abduction, you compensate the plaintiff and expenses used to find and return the child.
Child Abduction Aggravating Factors
California court could consider particular aggravating factors when determining what punishment to impose for your child abduction crime. Also, the elements are what the juror uses to decide if your offense is a felony or misdemeanor.
Below are the aggravating factors as detailed under California PC 278.6:
The age of your child at the time of your crime commission
Was the child denied the right to education after the abduction?
Did you change the physical appearance of the child after the abduction?
Have you committed the crime of child abduction before or had the intent to abduct the child?
Did you make outstanding efforts to return the child to the guardian or parent with rights to custody?
Did you take the child to another country outside the US?
Was the child hurt or neglected after the abduction?
Did you cause physical injuries to the lawful custodian?
If your child was exposed to any threat of physical harm or disease
California PC 278.6(6) Mitigating Factors
While the prosecution presents aggravating factors for your child abduction crime, the juror should consider certain mitigating factors that your defense attorney offers.
Your criminal defense lawyer can present various mitigating factors like:
You offered credible information and assistance that resulted in the return of the child unharmed
You returned the child without injuries before your arrest
Legal Defenses for PC 278 Accusations in California
There are legal defenses for violation of PC 278 – parental child abduction. The crime of child abduction is not uncommon.
The repercussions are severe on your rights and the well-being of your child too. The good news is, you could engage a reputable criminal defense attorney law firm and receive help to have your charges reduced or dismissed. Possible defenses for violating California Penal Code 278 are:
Lack of Existing Court Orders
The law enforcers can only arrest you if a court order exists concerning barring you from accessing the child.
Both you and your co-parent have equal rights to access the child if the court hasn’t revoked any parent’s custody rights.
See, if you are a child’s biological parent, and your rights of custody are not revoked, you can, for instance, take your children out for a whole weekend.
You want to contact your lawyer if the other parent sues you for child abducting while you have rights of custody to your child.
It is a crime to abduct your child after the court has revoked your custody rights. But you could have your charges reduced or dismissed in particular instances like:
You believed that the child was facing a risk of harm
You took the child away during a domestic violence incident
You breached the court's ruling to return the child owing to uncontrollable situations. You then went ahead and notified the guardian with rights to custody within 24 hours after your allowed time to stay with the child had elapsed.
You Had Rights to the Child’s Custody
You don’t need consent from your spouse to take away your child at any given time if you have lawful custody rights. But California law doesn’t allow you to withhold the child with malicious intent or for unlawful deeds.
For instance, after a heated argument between you and your spouse, the possibility of violence to erupt is high. In this event, if you take the child away and take them to another relative without consent of the other spouse, the court cannot press charges for child abduction. You also have the right not to tell the other parent know where you took the child as long as no harm is done to your child.
You can, however, face criminal charges if the child incurs injuries, the child experience emotional torture, or you neglect to offer your child proper protection, food, shelter, or clothing after taking them away.
You Took the Child from Someone Else Who Had No Rights to Custody
The court cannot punish you for violating California PC 278 if you take away your child from the other parent if they have no rights to custody. But the court could find you guilty of kidnapping, depending on the situation.
Your spouse could leave the child with a neighbor after eloping following a domestic violence incident. If you take the child from the neighbor, you don’t commit the crime of child abduction.
You Had Zero Malicious Intent When Taking the Child
Malicious intent is a primary element of crime in a child abduction case. So, the prosecution must present in court, enough evidence you had malicious intent when taking the child away from the legal custodian.
See, if you take away your child from the legal custodian because you presumed there was the risk of harm, you violate PC 278.
Speaking of legal defense, the primary defense for this instance is self-defense. You need a competent attorney to prove that you had the child’s best interests at heart.
But if your intent was annoying your spouse who has the rights to custody, you subject yourself to the crime of child abduction.
Another aspect to note is that this legal defense works if you hid the child until your arrest. You want to notify the police or children’s rights department if you took the child because of looming danger.
The Plaintiff Accused Your Falsely
The best defense for the crime of child abduction is mistaken identity and false accusations. You are considered innocent if the plaintiff accused you wrongly or the law enforcers confused you for someone else.
Usually, false accusations are not uncommon during divorce cases. For instance, when you and your estranged spouse have divorce proceedings in court, the juror bestows custody rights to one parent. Owing to anger, the other parent could accuse you of child abduction even if you took the child in a legit manner.
Speaking of mistaken identity, people resemble one another; it could happen your physical features resemble the at-fault party. If arrested, in this instance, you have no case to answer since you are a different person from the one at fault.
Lack of Enough Evidence
The prosecution must present enough and credible evidence in court against the defendant. The juror cannot sentence you for child abduction if the element of sufficient evidence is not met.
With a competent criminal defense firm, you rest assured that should the enforces present insufficient evidence in court against you, you get acquitted.
Note that in child abduction, you commit a crime against a guardian or a parent and not the child. So, even if your child – since they are affectionate towards you, willingly follows you after your rights to custody are withdrawn, you are liable for the crime of child abduction.
Relevant Evidence for your Defense
Domestic violence and divorce court battles are emotional-filled. Here, the other party could accuse you of child abduction to eliminate you from the child’s life or for revenge purposes.
While legal defenses exist, you want to have concrete evidence of your argument for the best outcome. Pertinent evidence you could present in court include:
Witnesses’ statements. These include statements from family members and close family friends
A visual or audio recording of the occasion
The accuser’s evidence of prosecutions like drug usage, mental illness, and criminal history
Documents showing orders from a family court of law
The accuser’s Facebook texts, emails, or voice notes
Are There Any Exceptions to Child Abduction?
The law exists in all states to protect the rights of every citizen. As such, child abduction laws ensure that the well-being of children is upheld even when parents fight, divorce, or are victims of domestic violence.
Since you have a better connection and understanding of your child, the court allows a few instances where you can go against the penal codes. Remember, you must prove that you violated the statutes for the best of your child.
So, if you believe that the parent with rights to custody could hurt the child for any reason, then the court cannot convict you if you for child abduction.
But the law requires you to act fast and report these occurrences as soon as you take the child away.
All that is required is:
Lodge a report with the office of the District Attorney stating that you took away your child
Engage the Parental kidnapping Act and file a consistent custody application
Engage with the Uniform Child Custody Jurisdiction Act too and file for custody consistent
Update the District Attorney about the current location of the child
Other Charges Related to Child Abduction
The prosecution charges you for other related crimes in addition to or in place of Penal Code 278. These include:
Deprivation of Custody - California PC Section 278.5
The primary disparity between PC 278 and PC 278.5 is that the parents of the former target without custody rights over the child they abduct while the latter includes even the parents with their child’s rights to custody.
You are charged for deprivation of custody if you violate the other parent’s visitation and custody rights. Also, PC 278.5 is a wobbler and a less severe crime than PC 278.
Loitering at a School - California PC Section 653b
The prosecution can charge you with PC 653b in place of or along with PC 278. The crime of loitering at a school occurs when you hang around places where children meet for long hours like a school or playground without a viable reason or with malicious intent.
PC 653b is a misdemeanor, but if charged with attempted child abduction, your lawyer can help have the charges lowered.
False Imprisonment – PC 236 PC
You commit the crime of false imprisonment if you deny someone else their right to freedom. Under California law, Penal Code 236 PC is a misdemeanor. But the offense escalates to a felony if you detain your victim through deceit or violence. The same case goes to children who cannot resist – you commit false imprisonment to fraud the parent or guardian with right to custody.
Find an Orange County Criminal Defense Attorney Law Firm Near Me
Facing charges for the crime of child abduction can be a stressful experience. However, we at the Orange County Criminal Defense Attorney Law Firm are here to help you. We will represent you if your case goes to court, seeking a dismissal or reduced charges. However, we might have the prosecutor agree to drop the charges before court proceeding through our skilled negotiators. Please get in touch with us today at 714-740-7848 to evaluate your case.