Child abduction is a profoundly distressing and grave offense. It involves the unlawful seizure or kidnapping of a minor without the legal guardian's or parent's consent. Child abduction occurs for various reasons, including parental or custodial disputes, human trafficking, ransom demands, or other reasons.

Whereas the public could conclude you are guilty based on a child abduction accusation, an accusation does not necessarily mean you will be convicted. The prosecution must prove their case. You have a right to legal representation. Therefore, call on the California Criminal Lawyer Group. Our Bakersfield team will offer guidance, advise you on your legal rights, explore available legal options, develop a defense strategy, and advocate for your interests in the court of law.

Child Abduction Under California Law

Per Penal Code 278, child abduction involves intentionally and maliciously taking, holding, luring, or concealing a child to keep them hidden from their lawful custodian. This crime is committed when those involved do not possess the legal authority or custody rights over the child.

In a child abduction case, prosecutors are responsible for proving several critical elements beyond a reasonable doubt to secure a conviction. These elements are:

  • You were involved in maliciously and intentionally taking, enticing away, retaining, withholding, or concealing a child.
  • The victim was a child under 18 years of age.
  • Your actions were propelled by a specific intent to detain or conceal the child from their legal custodian or guardian.
  • You lacked legitimate authority or custodial rights over the child — This often necessitates demonstrating your absence of parental rights or a legally sanctioned custodial relationship with the child.
  • You acted maliciously, meaning that your actions were motivated by wrongful or harmful intentions instead of legitimate ones.

Let us define some key issues related to child abduction.

Legal Guardian or Custodian

A lawful custodian or guardian has legal custody, guardianship, or parental rights over a child. The state recognizes various types of lawful custodians:

  • Parents with legal custody — Biological or adoptive parents who have received legal custody through a court order are considered lawful custodians. Legal custody empowers parents to make decisions about the child's upbringing, healthcare, education, and other critical aspects of their life.
  • Temporary custodians — In specific circumstances, the court could grant temporary custody to a non-parent, like a relative or family friend, if it is deemed in the child's best interests. This often occurs when the child's parents cannot care for them temporarily.
  • Legal guardians — The court appoints legal guardians to assume legal custody and responsibility for a child when the child's parents cannot provide care. Legal guardianship is established through a court order.
  • Child Protective Services (CPS) — In cases involving allegations of child abuse or neglect, CPS could assume temporary custody or legal responsibility for the child until the situation is resolved or until a safe placement with a parent or guardian can be arranged.
  • Custody orders — Court-issued custody orders, whether from divorce or legal separation proceedings, specify who holds legal custody of the child. These orders could designate one parent as the primary custodian or establish joint custody arrangements.

Acting Intentionally and Maliciously

When a person acts intentionally, they have a clear purpose or objective when carrying out an action. Intent can be classified into two primary categories:

  • General Intent — This pertains to situations where a person intends to engage in a particular behavior, even if they do not necessarily foresee or intend the precise consequences of their actions.

For example, Alex deliberately removes a child from a park and drives away without the consent of the child's legal guardian. In this situation, Alex had a clear intent to carry out the specific action of taking the child from the park. Although the exact results of this action could differ, the intention of taking the child forms the basis for the general intent necessary for child abduction charges.

  • Specific intent — This involves a more precise and deliberate mental state. In cases of specific intent, the individual not only intends to perform a particular action but also aims for a specific outcome or result as a consequence of their actions.

For example, entering a building intending to commit theft signifies the intention to access and steal something particular.

On the other hand, acting maliciously signifies engaging in conduct with a wrongful, harmful, or ill-intentioned motive. It implies that the individual's actions are fueled by a desire to:

  • Inflict harm, injury, or damage upon another person or their property.
  • Defraud the victim, or
  • Annoy or disturb another individual.

Note: Under child abduction laws, you can be found guilty of this offense even if the child willingly agrees to accompany you.

Child Abduction by Interfering With the Legal Custody or Visitation Rights of Another Parent

Penal Code Section 278.5 deals with "deprivation of custody," a legal term for situations where an individual intentionally and maliciously takes, withholds, conceals, or detains a child despite lacking lawful custody. This statute applies when the accused lacks the legal right to custody over the child. The lawful custodians can be parents, legal guardians, or those with court-ordered custody rights.

PC 278 and PC 278.5 are related but distinct statutes. Both laws concern child abduction and the unlawful taking of a child, but they target different aspects of this offense:

PC 278 broadly covers child abduction. It addresses unlawfully taking, enticing away, keeping, withholding, or concealing a child from their lawful custodian or guardian. This statute addresses many child abduction scenarios and related offenses, often involving individuals who lack legal custody or authority over the child.

On the other hand, PC 278.5 deals explicitly with deprivation of custody. This statute is tailored to situations where a person, without legal custody of the child, intentionally and maliciously takes, withholds, conceals, or detains the child with the clear intent to detain or hide them from their lawful custodian. PC 278.5 is more narrowly focused compared to PC 278.

Both statutes revolve around child abduction, but the crucial distinction lies in the precise elements they target and the circumstances they address within the broader context of child custody and abduction laws.

For the courts to convict you of interfering with another parent's legal custody or visitation rights under PC 278.5, prosecutors must prove the following elements to be accurate:

  • You took or withheld a child.
  • The child in question must be under the age of 18.
  • Your actions resulted in denying a custodian's right to custody or visitation.

Common Reasons Why Parents or Legal Guardians Abduct Children

Some of the common reasons parents have used to justify their actions include the following:

  • Persistent disagreements over child custody and visitation rights can escalate to abduction. This is the case, especially when a parent feels they are being denied fair access to the child.
  • Parents estranged from their children or denied contact could resort to abduction as a last-ditch effort to reunite with them.
  • Parents dread losing custody due to legal proceedings, allegations of abuse or neglect, or worries about the child's well-being with the other parent.
  • Some parents believe that removing the child from what they perceive as a harmful or dangerous environment serves the child's best interests.
  • Parents unsatisfied with court-issued custody orders could take matters into their own hands, convinced that their actions align with the child's best interests.
  • In some instances, one parent could manipulate the child against the other, leading to abduction and severing ties with the targeted parent.
  • Parents grappling with emotional distress, including mental health or substance abuse issues, could make impulsive decisions, like abducting their child, without fully grasping the legal consequences.
  • When a parent believes their child is in immediate danger or suffering abuse, they could resort to abduction to remove the child from the perceived threat.

After considering these reasons, the question arises, “Are there legal exceptions to child abduction?”.

Specific scenarios permit taking or detaining a child in contravention of a custody or visitation order. This applies when there is a genuine and "reasonable" belief that leaving the child with another person, parent, or legal guardian would immediately jeopardize the child's physical well-being or emotional health.

However, this exception is highly regulated, requiring adherence to specific steps:

  • Good faith and reasonable belief — The individual taking or detaining the child must possess a sincere belief. The belief must be founded on reasonable grounds that leaving the child with the other party would expose them to immediate physical injury or emotional harm.
  • Reporting obligation — In cases where a child is taken under this exception, promptly contacting the local District Attorney's Child Abduction Unit is paramount. This step serves to demonstrate that the action was taken in good faith and to ensure the child's safety.
  • Adherence to reporting instructions — Strictly following the reporting instructions issued by the authorities is vital. Neglecting this can lead to the exception not applying, potentially resulting in criminal charges of child abduction.

Child Abduction and Kidnapping

Child abduction and kidnapping are frequently confused but distinct legal concepts, each with its defining characteristics.

Child abduction pertains specifically to situations where a child is taken or concealed by an individual or group without the consent of the child's legal custodian or parent. It occurs in custody disputes or when one party believes they have a rightful claim to the child that the other party is denying.

In contrast, kidnapping constitutes a broader legal offense. It involves any person's unlawful abduction, restraint, or confinement, regardless of their age or custodial relationship. Kidnapping charges primarily center on the following:

  • The use of force, threats, or
  • The act of moving the victim against their will.

Importantly, kidnapping laws apply universally to individuals of all ages.

Defenses You Can Assert in a Child Abduction Case

Defending against a child abduction charge is possible. However, the success of your defense depends on several critical factors, including case specifics and available evidence. Below are potential defense strategies that Bakersfield attorneys use in child abduction cases:

  • You Had Parental Rights

In child abduction cases, parental rights, particularly those held by legal custodians or parents with lawful custody rights, are grounds for a defense against the child abduction charges. When individuals accused of child abduction can demonstrate their legal rights and custody over the child involved, it can significantly influence their legal defense.

This defense underscores the importance of maintaining transparency and comprehensive documentation regarding custody arrangements and legal entitlements. Parties engaged in child custody disputes must exercise diligence in preserving precise records, court orders, and legal documents that can substantiate their custodial status.

Per the law, you cannot be deemed an abductor if:

  • You engage in a lawful act with the child, and
  • You have legal custody of the child at the particular time and location under consideration — It implies that, for instance, a mother would not be found guilty of child abduction case if she takes her daughter to a friend's residence for a few days, given she has legal custody of the child during that specific time and place.

  • No Legal Custodian

In child abduction cases, your guilt depends on the fulfillment of two specific conditions:

  • You took a child.
  • You do so from someone who legally holds custodial rights over that child.

Consequently, a compelling defense strategy revolves around the argument that the individual from whom you took the child did not possess the requisite legal authority or custodial rights.

In essence, this defense relies on demonstrating that the alleged custodian lacked the legal standing and rights to assert custody over the child in question. If this defense successfully substantiates the claim that the purported custodian lacked lawful custodial status, it can potentially result in the dismissal of your child abduction charges.

If the legal custodian lost his/her parental rights due to abuse, neglect, or abandonment, you have a compelling case that child abduction did not occur.

  • You Did Not Act Maliciously

Your attorney could argue that you had a legitimate or non-malicious reason for your actions. In child abduction cases, the defense attorney can demonstrate that you acted in good faith and lacked malicious intent. This defense strategy aims to establish that your actions were not motivated by harmful intent but were grounded in valid reasons or circumstances. Here are some illustrative examples:

  • Custody order misunderstanding — If you can provide evidence that you failed to exchange custody of the child at the specified time and place due to a bona fide misunderstanding of the custody order without any intent to obstruct the custodial rights of the other parent or guardian, it can serve as a defense.
  • Bona fide emergency — An effective defense could be established if you substantiate that a genuine emergency prevented you from complying with the custody order. In these instances, you may not have been able to adhere to the order due to unforeseeable and compelling circumstances.
  • Reasonable belief of imminent harm — If you held a reasonable belief that the other parent or guardian posed a credible threat of violence and that complying with the custody order would have exposed the child to immediate physical or emotional harm, it could be a valid defense. This defense relies on the notion that taking action to safeguard the child was essential given the prevailing circumstances.

  • You Were Falsely Accused

False accusations of child abduction can be profoundly distressing and arise from various motives. These motivations often include:

  • Personal conflicts — Disagreements or disputes can lead to false child abduction accusations, especially within divorced or separated couples. One party could use these allegations as a tactical move in a custody battle or to discredit the other parent.
  • Retaliation — Desires for revenge can drive individuals to make false accusations or to inflict harm. Personal grievances, envy, anger, or resentment can trigger unfounded claims against another individual.
  • Misunderstandings — Innocent misinterpretations or communication breakdowns can result in false child abduction accusations. A person could mistakenly believe that a child is abducted when, in fact, they are with their lawful custodian or in a secure environment.
  • Child protection concerns — In rare cases, a person could falsely accuse someone of child abduction out of genuine concern for the child's safety. However, these concerns could be based on inaccurate or exaggerated information.
  • Mistaken identity — Cases of mistaken identity can lead to wrongful accusations. Someone could incorrectly identify an individual as the abductor, even if that person had no involvement in the alleged incident.
  • Psychological factors — Psychological issues or mental health conditions could sometimes contribute to false accusations. An individual's mental state can distort their perception of reality, leading them to make unfounded claims.
  • Pressure or coercion — False allegations can also arise when individuals are coerced or pressured into making statements they do not genuinely believe. This pressure could originate from legal authorities or interpersonal relationships.

When falsely accused of child abduction, asserting your innocence is crucial. This process involves presenting evidence, such as:

  • Alibis.
  • Witness testimonies.
  • Documentation, or
  • Information related to possible motives.

All these aim to cast doubt on the credibility of the accusations and provide an alternative perspective on events.

The Sentencing Hearing

Courts consider several factors during the sentencing hearing following a conviction for breaching child abduction laws outlined in Penal Code Section 278 or 278.5. These factors determine the severity of the sentences you will likely receive. These factors are categorized as either:

  • Aggravating or
  • Mitigating.

Both play a pivotal role in shaping the outcome.

Aggravating Factors

These are circumstances that have the potential to increase the severity of the sentence:

  • Substantial risk to the child — If, during the abduction, the child or children faced a significant threat of physical injury or illness.
  • International abduction — If the child or children were abducted and transported out of the territorial bounds of the United States.
  • Physical harm or threats —If you were found to have caused bodily injury to a parent or legal guardian of the child, or if you made threats of physical harm towards them or the child during the abduction.
  • Harm or abandonment — If your actions resulted in injury to or abandonment of the child or children during the abduction.
  • Failure to return — If you failed to return the child or children as mandated by the lawful custody or visitation order.
  • Prior abduction or threats — If you have a history of previous abductions or threats of abductions concerning the child or children.
  • Alteration of appearance or name — If you substantially altered the appearance or name of the child or children during the abduction.
  • Denial of education — If you deprive the child or children of their right to an appropriate education during the abduction.
  • Duration of abduction — The time the child or children were abducted is also considered.

Mitigating Factors

These are circumstances that could lead to a more lenient punishment:

  • The safe return of the child — If, before your arrest or the issuance of an arrest warrant, you ensured the safe return of the child or children without causing them harm.
  • Providing information and assistance — If you actively contributed by providing information and aid that facilitated the safe return of the child or children to their other parent or legal guardian.

Penalties for a Violation of Penal Code 278

Child abduction is a wobbler offense. You can either be convicted for a misdemeanor or a felony violation.

Convictions for misdemeanor violations result in the following penalties:

  • A jail sentence of up to one year.
  • A maximum fine of $1,000.

Convictions for felony violations result in the following penalties:

  • Imprisonment for 2, 3, or 4 years.
  • A maximum fine of $10,000.

You will face similar misdemeanor penalties for abducting a child in violation of a custody order. However, should you face felony charges, a conviction will result in the following penalties:

  • Imprisonment of 16 months, 2, or 3 years.
  • A maximum fine of $10,000.
  • Probation instead of imprisonment.

Find a Criminal Defense Attorney Near Me

Seeking the counsel of a criminal defense attorney in Bakersfield is a wise course of action when confronted with child abduction charges. At California Criminal Lawyer Group, our legal professionals bring expertise, years of experience, and an unwavering commitment to safeguarding your rights. The impact we can have on the final outcome of your case should not be underestimated.

Therefore, contact our Bakersfield office today at 661-750-8230 and talk with our attorneys immediately to begin constructing a robust defense strategy.