Child abduction is a crime common in situations where there is an issue with child custody. This offense is usually committed by parents, step-parents, or other members of the family with legal or no legal rights to the child. Such offenses can attract severe penalties under California laws. Long Beach Criminal Attorney offers legal services to anyone accused of child abduction in Long Beach, CA.
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Legal Definition of Child Abduction In California
Several Statutes describe the criminal offense of child abduction in California. This includes California Penal Code Sections 277-280. Penal Code 278 defines that one does not have the authority to custody. At the same time, Penal Code 278.5 describes facts related to denying custody rights, meaning that abduction involves impeding the legal rights of another person to be with a child. Here is a detailed description of the relevant laws related to this offense.
California Penal Code 277
Under California Penal Code 277, a child is described as anyone under eighteen years. It also represents a court order as a custody judgment provided by a court. It can bring a permanent and temporary order that affects the visitation or custody of a child.
The order remains into effect until it is rescinded by the court, modified, or expires. The statute furthers lawful custodians as any person or guardian with the right to custody of a child. A right of custody means having the right to take care of a child, have custody, or have control of a child.
California Penal Code 278
California Penal Code 278 primarily governs everything to do with child abduction. It describes child abduction as an action of maliciously taking or concealing a child to hide them from their lawful custodian.
California Penal Code 278.5
California Penal Code 278.5 makes it a criminal offense when a person deprives an adult of the right to custody or the child’s visitation. This crime is different from Penal Code 278 since a person can commit deprivation of care with the right to custody or visitation of the child. That’sThat’s why it is described as deprivation of custody rather than child abduction. The offense is also referred to as child detention.
As a result, this statute is charged against the parents, foster parents, grandparents, or someone else with a custodial relationship with the minor.
Elements of the Crime
For the prosecution team to charge you for child abduction, they must prove specific facts. These facts are referred to as elements of the crime and must be proven beyond a reasonable doubt. They include:
- You did not have the lawful right to the child’s custody
- You took, withheld, or hid the minor
- Your actions were maliciously meant to deprive the lawful custody or visitation.
Let’sLet’s have a closer look at the above-stated aspects.
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You took, kept, Enticed Away, or Hid a Minor
You would be guilty of Penal Code 278.5 if you keep, take, withhold, entice away, or hide the minor in question. Enticing away means that you lured the child by creating desire or hope. You would still be blameworthy of the offense even if the minor did not object to the enticement or had the desire to go with you. Also, you will be blameworthy of denying custody by withholding or keeping the minor even if he or she was under your care and even consented to stay with you.
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A Child
As described under Penal Code 277, a child is a person below eighteen years. Therefore, child abduction does not affect younger people, someone at eighteen years old or older.
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Denied a Lawful Custodial Right of Another Person
You can only be guilty of child abduction in California if you deprived the lawful custodian right, or deprived someone else of the rights to visit. As described above, a legal custodian is a person or guardian with the authority to custody. The authority to custody is the obligation to physical care, control, or custody of a child based on legal requirements or due to a court order.
Please note that you can still be held liable for depriving custody if the lawful custodian you deny the right to custody or visitation is a non-profit or government agency. An excellent example of an agency that falls under this category is the California Department of Children and Family Services. Besides the involvement of an agency, you can only be blameworthy of the offense if the deprivation is committed against an agency with the child’s actual physical custody.
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Deprivation of Visitation
You could be guilty of violating Penal Code 278.5 if you deprived another person the right to visit a minor, even when they do not have custody. The term visitation means a court order that grants someone else access to a child within a specific timeline. This is common to divorced parents where one of them has custodial rights while the other has visitation rights. Therefore, the custodial parent violates this statute when he or she fails to oblige to the visitation rights that the court has ordered to the other parent.
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Maliciously
You will be guilty of depriving the custody if your actions were malicious. In that case, you either intentionally did a wrongful act or you had the intent of defrauding, annoying, injuring, or disturbing someone else.
Penalties for Child Abduction
Whether you are convicted for violating Penal Code 278 or 278.5, you will face more or the same penalties. Breaking either of the statutes is a wobbler, which means that the prosecution team can charge you with a felony or a misdemeanor.
The prosecutor decides to charge you with a felony or misdemeanor according to the circumstances surrounding the alleged crime and the defendant’s criminal history.
Whenever one gets charged with a misdemeanor, he or she faces the possible penalties are as follows.
- Summary or misdemeanor probation
- County jail sentence for a maximum of a year
- A fine of up to $1,000
In a felony conviction, the possible consequences include:
- Formal or felony probation
- County jail sentence under the California realignment program for 16 months, two, or three years
- A fine of up to $10,000
The only difference in a sentence under Penal Code 278 is that there is no probation offered, and a felony charge can lead to custody in state prison for a maximum of four years.
Apart from your convictions, you will have to reimburse the District Attorney for all the expenses incurred while tracing and returning the child. You will need to pay restitution to the victim for the costs incurred while tracing and recovering the minor.
Factors that Determine Sentencing for Child Abduction
There are specific factors that California laws have set forth to determine the kind of sentence to consider in a child abduction case. These factors are described under Penal Code 278.6 and are referred to as aggravating factors. They are as follows:
- Child exposure to a significant risk that might lead to physical illness or injury
- Infliction of bodily harm on the minor, or parent during the abduction
- Harming or abandoning the child
- Taking or withholding the child outside the United States
- Failing to return the child to the lawful custodian
- Previous threats to abduct the child
- Substantially altering the appearance or name of the child
- Denying the appropriate child education
- Abducting the child for an extended period
- Abducting a relatively young child
In contrast to the aggravating factors, several mitigating factors might prompt the judge to consider lighter penalties. These include whether the child was returned before the warrant was issued. It also consists of the provision of information by the defendant that would assist in the safe return of the minor.
Multiple Counts for Violating Penal Code 278.5
Whenever you are accused of keeping or taking several children at a time, you might end up with a punishment that considers multiple violations of this statute. This is different from other crimes such as California theft, which charges an offender with a single count for stealing more than one jewelry.
Other Consequences for California Child Abduction
Apart from the possibility of being convicted with a jail sentence, fines, or probation, several other consequences follow after abducting a child in California. For instance, a conviction might harm your immigration. This occurs when the aggravating factors apply to lead to your deportation or marking as an inadmissible if you are a non-citizen defendant.
Also, if you are convicted with a felony charge, you can end up losing your rights to buy, own, or possess a gun.
Possibility of Expungement
Although there are harsh penalties that apply after a child abduction sentence in California, you can have your conviction expunged if you face a misdemeanor abduction case, and complete your probation or jail time.
Legal Defenses for Child Abduction Conviction in California
Your defense attorney should use different strategies to oppose your child abduction convictions. The following are several legal defenses that the attorney can use.
Legal Custody
A defendant cannot be accused of child abduction if he or she took some legal actions with the child, and the accused have legal custody of the child. This means that a mom cannot be charged with abducting a child if he or she takes her daughter to a friend’s house for a few days.
No Legal Custodian
An offender becomes guilty for abducting a child if he or she takes a child and does so from someone with the child’s legal custodian. Therefore, if the accused can prove that the person who the child was taken from was not a lawful custodian, this might have the court dismiss the case.
The Intention was Not Malicious
If the actions that make you guilty of abducting your child were not malicious, you would not be deemed liable for the offense. Therefore, your defense should show that your act was not malicious to make it valid.
You intended to Protect the Minor
California laws allow a haven against a minor to people who keep or take a child since they believe that the child might suffer immediate bodily injury or harm. For this legal argument to be valid, the following consideration must apply:
- The accused should be somebody with the right to care of the minor
- Within ten days or ten after the deprivation of care, the accused should write a report to the district attorney of the residence of the child. The report should include the name of the defendant, current address, phone number and reason for taking or keeping the child
- The defendant must file a custody proceeding to the court within thirty days or less after getting involved in the potential crime
- The accused should keep the district attorney’s office updated of any change of his or her phone number or address
If your intentions are to keep the minor away from the person with the custodial or visitation rights out of worry for the child’s safety, you need to contact a lawyer immediately to determine whether you meet the requirements for a haven.
If you do not fulfill these conditions, you will be guilty of denying custody.
False Accusation
False accusation is a common legal defense in most cases. The reason for its application in a child abduction case would be the involvement of an ex-spouse or someone else who is unhappy with your custody rights. Therefore, when such people tend to find leverage for their care or divorce, they end up accusing you of child abduction.
An experienced defense attorney would help you establish the false accusation to make the legal defense convincing enough.
Find a Long Beach Criminal Attorney Near Me
Child abduction accusations can be challenging. It involves a lot of complicated legal procedures, which might easily lead to severe penalties. It is recommendable to hire a professional attorney to help you with this type of case. For questions regarding your child abduction conviction, do not hesitate to contact Long Beach Criminal Attorney at 562-308-7807 and speak to our representatives in Long Beach, CA.
