Child abduction is a crime under California law that entails stealing or concealing a child from the legal custodian. The California Penal Code 278 PC outlines the crime of child abduction. You may face a conviction for this offense if you have no valid legal custody over a child, yet you took the child from his/her legal guardian. A right of custody implies that you have the right to physical care, custody, and control over a child. You may be entitled to a right of custody if you are the child's parent, and the court has not revoked or restricted your rights. You might also have a right of custody if the court granted you a custody order. The crime of child abduction attracts hefty penalties under California law. If you are facing charges under Penal code 278 PC, Los Angeles Criminal Lawyer may help you fight the charges.
Elements of Child Abduction Crime
The California child abduction law aims to protect parents against the grief and anxiety they may experience when another person takes their children without their permission or knowledge. If you commit the crime of child abduction, you will be guilty of committing a crime against the parent and not the child. To accuse you of stealing a child, the prosecutor should prove several elements of the crime. The prosecutor should prove that you enticed, withheld, concealed, or maliciously took a child. A child refers to any person who is below the age of 18 years.
The prosecutor should also bring out the fact that you had no custody rights over the child. It must be apparent that you intended to conceal or keep the child away from his/her legal custodian. According to California law, acting maliciously implies that you had the intent to annoy or injure another individual. It also means that you committed the crime on purpose (you intend to commit the crime). According to the law, enticing a child entails stirring a desire within them and then allure or lead him/her away. Therefore, you do not have to use force when leading the child away for you to face child abduction charges.
Keeping or withholding a child means keeping the physical possession of the child even if the child does not object or resist. Detaining a child means preventing or delaying a child from returning to his or her legal custodian. It is not relevant whether you keep or detain a child. What matters is whether you had the intention of holding the child.
Parental Child Abduction
Parental child abduction may occur if a family member, typically the child's parent, abducts a child. Parental abduction is a severe crime in California. A parent who does not have legal custody rights abducts a child and keeps him/her away for a certain length of time. In most instances, parental abduction often takes place when parents are in the course of a divorce or are involved in child custody battles. Parental child abduction may also take place if one parent violates the other parent's right to visitation or physical custody of the child. Typically, the law aims at safeguarding the rights of the legal custodian or the left-behind parent rather than the rights of the abducting parent. If the left-behind parent has rights to visitation or joint custody, the other parent may face child abduction charges for violating these rights. However, it is essential to note that under California law, a natural parent has an automatic right to physical custody of his/her child.
At times, the parent with a legal right to physical custody of a child may hold a child for a more extended period. A parent may only do this if he/she intends to protect the child. However, to avoid facing child abduction charges, the parent has to follow some procedures. The law requires the parent holding the child to file a good cause report with the district attorney as soon as possible. If the parent exceeds ten days before filing the report, he/she may face child abduction charges.
In addition to filing a good cause report, the parent holding the child must also apply for custody. He/she has to make the application for child custody within a reasonable time. Failure to apply for child custody within thirty days may subject the parent to child abduction charges. You should not hold a child even if you are seeking to protect the child from danger if you do not have a legal right to physical custody. You should instead contact a child protective agency or law enforcement agency and inform them of the inherent dangers. You should only hold the child long enough to contact the child protective agency or law enforcement officers.
Child Abduction and Kidnapping
Most people often confuse the crime of child abduction with kidnapping. However, the crime of kidnapping is more serious than the crime of child abduction. Kidnapping entails moving a person for a substantial distance without their consent. In addition, kidnapping involves the use of force or threat to move a person against his/her will. However, the crime of child abduction may not involve the use of force. In most cases, child abductors entice children rather than use force.
The other difference between child abduction and kidnapping is the age of the victim. A victim of kidnapping may be a person of any age. However, for child abduction, the victim is below the age of 18 years. In a kidnapping offense, the defendant faces harsher penalties if the victim is a person below 14 years. In some instances, if you take a child or children for a substantial distance away from their legal custodian, you may face kidnapping charges instead of child abduction charges.
Consequences for Child Abduction
Under California law, the crime of child abduction is a wobbler offense. The prosecutor may decide to charge the crime of child abduction as a misdemeanor or as a felony. The prosecutor's decision will depend on various factors, including your criminal history and the aspects of your case. For a misdemeanor conviction, you may serve jail time of not more than one-year county jail. You might also have to pay a fine of up to $1,000. For a felony conviction, you may serve formal felony probation and jail time of not more than one year in county jail. You might also serve imprisonment in a state prison in California of two, three, or four years. The court may order you to pay a fine of up to $10,000.
If you commit a crime of child abduction in violation of custody order under Penal Code 278.5 PC, you may face similar charges. However, for a felony offense under Penal Code 278.5 PC, you may serve an imprisonment of 16 months, two years, or three years in a California state prison. In addition to serving imprisonment and paying fines, you might also have to pay restitution to the victim. You will have to reimburse the victim or the prosecuting agency for all the money incurred in tracing the child and returning the child to the rightful custodian.
You will be subject to a sentencing hearing. During this hearing, the prosecutor and your criminal defense attorney present their mitigating circumstances and aggravating factors. This information helps the judge to determine the most suitable sentence for the defendant.
Several mitigating factors may help lighten the sentencing of the victim. You may face lesser charges if you return the child unharmed and before your arrests or prior to issuance of your warrant of arrest. The court may also reduce your charges if you provide information to aid in the safe return of the abducted child.
If aggravating factors are present, you may face harsher penalties, including long imprisonment. Some of the aggravating factors in a child abduction case include: exposing the child to the danger of physical injury or substantial risk. You might also face enhanced charges if you inflicted bodily injury on the child or the lawful custodian during the abduction. You may still face increased charges even if you did not cause physical harm to the child and the custodian as long, and you threatened to inflict harm.
Taking the child out of the country after abduction is an aggravating factor that attracts enhanced penalties. A defendant faces a harsher penalty if he/she alters the appearance or the name of the abducted child. Increased charges may also apply if the defendant has not yet returned the abducted child.
If you are facing charges under Penal Code 278 PC, you may employ various legal defenses to fight the charges in court. With proper legal defense, the court may offer you a plea bargain and charge you with a lesser offense. The court may also dismiss your charges if your attorney successfully fights the charges against you. Some of the common legal defenses include:
- Lawful Custodian of the Child
You cannot face child abduction charges if you successfully prove that you are the lawful custodian of the child. For instance, you may be living with your spouse and children, but you happen to fight. You take the children and stay out of the home for several days. If your spouse accuses you of child abduction, you may assert in court that you are also a lawful custodian of the child. As either a mother or father of your children and one of their rightful custodians, you have a legal right to travel with them. As long as you are not taking your child with an illegal intent or for an unlawful purpose, you can assert your right to move with them even without the consent of the other spouse.
In some instances, you face charges despite being the legal custodian of your children. For example, you may face conviction under Penal Code 272 PC for inflicting serious physical harm on your child. You might also face charges for subjecting a child to damage or emotional abuse. If you neglect your child and fail to provide them with shelter, food, and clothing, you may face charges despite being their lawful custodian.
- You did not take the Child from the Lawful Custodian
You cannot face charges under Penal Code 278 PC if you take a child and keep him/her from a person who is not their lawful custodian. However, depending on the circumstances of the offense, you may face kidnapping charges. For instance, if a biological child is living with another family and you take the child from them. You may not face charges under Penal Code 278 PC. As long as the family from whom you took the child is not the child's legal custodian, you may not face child abduction charges.
- You Did Not Act with Malice while Taking the Child
For a prosecutor to charge you with child abduction, he/she has to prove several elements of the offense. For instance, the prosecutor should prove that you maliciously took your child. Taking a child with malice means you had the intention to hurt the lawful custodian. If you can show that you did not behave maliciously, you may be able to avoid child abduction charges. You may assert that you took the child because you thought the child would encounter danger in the hands of the legal custodian. It must be apparent that you had good intentions while taking the child. You might face charges if you took the child intending to commit a wrongful act or to annoy another person.
If you take the child and indefinitely keep him/her until the police catch you, this defense may not work for you. On the other hand, the defense may work if you took the child from the legal custodian, then called law enforcement or child protective agency. If you are not a lawful custodian of a child, you should only hold the child temporarily until you contact the law enforcement officers.
- You were Falsely Accused
This is the best defense to use if you are innocent of the charge of child abduction. The law enforcement officers may have arrested you based on mistaken identity or due to a false accusation. For instance, when going through a divorce or while fighting a child custody battle, your spouse may falsely accuse you of child abduction. You may have had the permission to take the child, but your spouse accuses you of child abduction to help give him or her the upper hand in the court ruling.
In a case of mistaken identity, you may have the same physical characteristics as the real child abductor. A witness may, therefore, identify you as the child abductor while you are innocent. Your criminal defense attorney conducts a thorough investigation of your case and helps to uncover the truth. You do not have to suffer for the wrongdoing of another person. An experienced attorney can help to clear your name.
- Lack of Evidence
You may fight child abduction charges if the prosecutor does not have enough evidence against you. The prosecutor should prove all the elements of the crime of child abduction beyond a reasonable doubt. You may be entitled to an acquittal if the prosecutor cannot prove some of the elements of the crime. Your attorney will strive to illustrate that the evidence against you is not sufficient and negotiate for your acquittal. It is important to note that you cannot quote the fact that the child agreed to go with you as a defense. Unlike in the case of kidnapping where a defendant takes the victim through violence or threat, child abduction may not involve any threat or violence.
Several offenses are closely related to the offense of child abduction. The court may charge with the related crimes alongside child abduction charges. In some instances, the court may convict you of the related offenses instead of child abduction. Some of the related offenses include:
Deprivation of Custody
California Penal Code 278.5 PC outlines the crime of deprivation of child custody. The key difference between the two offenses is that child abduction revolves around defendants who have no lawful custody over the child. On the other hand, deprivation of custody revolves around defendants with lawful custody for the child. Under Penal Code 278.5 PC, you may face charges if you interfere with the visitation rights of another person and not just for abducting a child. A crime under the Penal code 278.5 PC is less serious than an offense, according to Penal code 278PC. However, deprivation of child custody is still a wobbler and may attract misdemeanor or felony charges.
Contributing to the Delinquency of a Minor
This offense involves people who do not have a significant relationship with the child. The defendant establishes a relationship with a minor with the intent of taking the minor away from his/her parents. A crime under the Penal Code 272 PC is either a misdemeanor or an infraction under California law. This implies that the crime is less severe than the crime of child abduction.
Contact a Los Angeles Criminal Defense Lawyer near Me
The crime of child abduction may attract detrimental consequences, including imprisonment and hefty penalties. Los Angeles Criminal Lawyer has experienced lawyers who can help you fight charges under California Penal Code 278 PC. Contact us at 310-502-1314 and talk to one of our lawyers.
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