California Penal Code Section 278 is the statute that criminalizes child abduction. You face child abduction charges under PC 278 if you keep or hide a minor from their legal parent or guardian without permission or in violation of a court order. California law provides for two types of child abduction, including simple and aggravated. Aggravated abduction involves using force or committing malicious acts. You face simple child abduction charges if you take a child without its parent’s permission.
In California, child abduction is termed a wobbler offense. That means the prosecution could charge you with a misdemeanor or felony crime. Once you are accused and arraigned in court for child abduction, you want to seek legal counsel immediately.
You could face sentences if found guilty, including two, three, or four years in prison for a felony charge and one year in jail for a misdemeanor charge. Other penalties include fines, loss of gun rights, and deportation. Fight these charges and for your rights with the help of a criminal defense attorney.
You want to seek legal counsel from an experienced lawyer with many years of dealing with child abduction cases. Your lawyer will help you build solid defense strategies for a positive outcome in your case. At Chula Vista Criminal Attorney, our lawyers are ready to offer you services and represent you in court. Contact us today so that we can start working on your case.
An Overview of Child Abduction
What Must Prosecutors Prove to Charge You With Child Abduction Crime in California?
Under California statutes, a prosecutor must prove some aspects of a child abduction crime beyond a reasonable doubt before you can be convicted of the offense. Some of the elements that they must prove include the following:
- You enticed, withheld, kept, concealed, or took a child under 18 from their lawful guardian or custodian.
- You did not have the right to take the child or violated a court order or custody agreement.
- You acted to deprive the parent or guardian of custody or visitation rights.
- You had malicious intent when you withheld or took the child from its parent or legal custodian.
Your actions are termed "malicious" when you intentionally commit a wrongful act against another person. Being malicious also involves the following:
- Disturbing the victim.
- Defrauding the plaintiff.
- Annoying the legal custodian.
- Injuring the victim.
For example, if John, Jane’s uncle, asks Jane to go hiking with him to hide her from her father, and she agrees, John is guilty of child abduction. He will have committed a crime because he has separated Jane from her dad.
Child abduction is an offense against the parent or legal guardian, not against the abducted child.
Child Abduction Done Through The Act of Depriving a Legal Parent or Guardian of Visitation
Under PC 278.5, you are guilty of child abduction by depriving a legal parent or guardian of visitation if you withhold or keep a child from their other parent or legal custodian. This is done in violation of a court order or custody agreement.
This type of child abduction is also known as "parental kidnapping" or "custodial interference." A prosecutor could charge you with a misdemeanor or a felony, depending on the nature of your case.
Child abduction by deprivation of custody or visitation can have detrimental and lasting consequences. Some penalties you could face if found guilty include imprisonment for up to one year in jail, fines of up to $1000, or both.
These consequences could affect the child, the parent or legal custodian deprived of custody or visitation, and you. Some of the effects of this offense include;
- Emotional harm to the child.
- Disruption of the child's relationship with their parents or guardians.
- Damage to the child's sense of stability and security.
You cannot use the child’s consent to your actions as a defense; you are guilty of child abduction even though the child agreed to go with you when you committed the offense.
For example, James and Lydia have a joint custody agreement for their daughter Mary after their divorce. Each parent obtains the right to spend an entire week with the child. However, when Lydia discovers that James has moved in with his new girlfriend, she angrily refuses to give James access to Mary at the end of the week.
Lydia is guilty of child abduction by depriving James, a legal custodian, of accessing their daughter.
Some of the legal consequences you could face as a result of being convicted of child abduction by deprivation include the following;
- The loss of custody or visitation rights.
- Criminal charges.
- Civil liability for damages.
Child Abduction Charges Classification Under California Statutes
Child abduction is classified as a wobbler offense under California laws. This means that the crime can be charged as a misdemeanor or felony, and the penalties will depend on your case's severity. For example, if a child is taken outside of California or the abduction involves violence or the threat of violence, the offense may be charged as a felony.
As a felony child abduction convict, you could face imprisonment in the state for two, three, or four years. You may also be required to pay restitution to the victim and may face civil liability for damages.
If the child is not removed from the state and the abduction does not involve violence or the threat of violence, the offense may be charged as a misdemeanor. The crime could lead to a sentence of up to one year in jail and fines of up to $1,000 once you are found guilty.
Penalties for Penal Code 278 Violation
Under Penal Code 278, you could face the following penalties if convicted:
Child Abduction Conviction Effects on Your Gun Rights
Your gun rights could be negatively affected once convicted, as federal law prohibits individuals found guilty of certain crimes from possessing firearms. Child abduction is considered a "violent" offense and falls within the category of crimes that can result in a federal prohibition on gun possession.
Under federal law, 18 U.S.C. 922(g), it is illegal for a convict of a "crime of domestic violence" or a "misdemeanor crime of domestic violence" to possess a firearm. A "crime of domestic violence" includes felony offenses involving the use or attempted use of physical force against a victim with whom you have a domestic relationship and any violation similar to such a felony offense.
Some aspects of domestic violence may include certain child abduction convictions, particularly those that involve violence or the threat of violence. California's Department of Justice (DOJ) maintains a database that shows that you are prohibited from possessing firearms. This database conducts background checks on individuals seeking to purchase firearms in California.
What Happens When You Are Convicted of the Violation of PC 278, and You Are Not a US Citizen?
If you are not a U.S. citizen and have been convicted of child abduction under California Penal Code 278, you may face additional consequences beyond those a citizen faces. The penalties will depend on the following:
- Your immigration status.
- The nature and severity of the offense.
Some of the punishments include the following:
You could be subjected to deportation from the U.S. as an immigrant if you are convicted of child abduction, which is classified as a crime or moral turpitude in California. The conviction may also affect your ability to obtain a visa, a green card, or any other immigration benefit in the future.
You could be deemed inadmissible in the U.S. if convicted of a child abduction crime. A court could bar you from entering or returning to the United States even with a valid visa or another immigration status.
If convicted, you want to seek the services of an experienced immigration attorney who will help you understand the potential immigration consequences of a child abduction conviction. They could also assist you in protecting your immigration status.
Some of The Defenses Against a Child Abduction Conviction in California
You Have Legal Custody Over the Child
- The lawyer could show that you were granted child custody when the offense occurred. You cannot be termed as an abductor if you are the parent or legal custodian.
The Legal Parent or Guardian Had Lost Custody of the Child
- You could not be convicted of child abduction if you took the child from a parent who had already lost custody of the child due to abandonment or neglect on their part.
The Person You Took the Child From Was Not a Lawful Custodian
- The attorney could help you prove that you took the minor from someone who is not a legal custodian. You cannot be convicted if you took the child to save them from someone who had withheld them and had no legal custody.
You Had No Malicious Intent
- You can only be deemed guilty under PC 278 if your actions were malicious.
For example, if you run late and cannot exchange custody of the child at the place and time you had set in the custody order you had agreed on with the other legal custodian due to unavoidable circumstances. In that case, You cannot be guilty of malicious intent because you were late for a genuine reason and did not intend to annoy the plaintiff.
How Can an Attorney Help You Oppose the PC-278 Charges Imposed Against You?
If you face child abduction charges under California Penal Code 278, it is essential to consult with an experienced criminal defense lawyer immediately. The lawyer could help you understand your legal rights and options. The attorney can work to develop a defense strategy to help you fight the charges under PC 278 by helping you do the following:
Analyze the evidence
The lawyer could review the prosecution's evidence against you and determine whether any weaknesses could be used to challenge the case against you.
Develop a defense strategy
Based on your attorney’s analysis and knowledge of the law, they could develop a strong defense strategy tailored to your case. This they could do by helping you challenge the evidence and arguing that you had a lawful right to take the child due to some danger the other parent was exposing your child to.
They could also help you by demonstrating that you did not intend to deprive the lawful custodian or guardian of their visitation or custody rights.
Negotiate with the prosecution
You do not have to interact with the other party in person; your attorney acts as your legal representation and helps you negotiate with the prosecution to reduce or entirely dismiss the charges against you. This may involve showing that the evidence against you is weak and that you had no malicious intent.
In your legal battle in court
If your case goes to trial, the lawyer can represent you and present your defense to a judge or jury. The attorney can cross-examine the witnesses and challenge the prosecution's evidence. They can also argue on your behalf to help you obtain a favorable outcome.
How Can I Expunge a Child Abduction Conviction in California?
In California, it is possible to obtain an expungement, also known as dismissal, of a child abduction conviction under certain circumstances. Expungement is a legal process that allows a person to have their criminal record modified and potentially cleared of specific penalties.
To be eligible for expungement of a child abduction conviction:
- You must have completed your sentence, including any probation or jail time.
- You should not be facing any new criminal charges.
- You must have fulfilled all of the conditions of your sentence, including paying any fines or restitution that the court ordered.
To obtain expungement of a child abduction conviction, you must file a petition with the court that initially sentenced you. The petition will include your personal information, details of your sentencing, and evidence that you have completed all of the conditions of your sentence and have been rehabilitated since the conviction.
If the court grants your petition for expungement, the conviction will be dismissed and set aside, and you will no longer be considered convicted of the offense. This may positively affect your ability to find employment, housing, and other opportunities that may have been affected by your criminal record.
Expungement, however, does not completely erase your criminal record. The conviction will still appear on your record but will show that it was dismissed according to California Penal Code Section 1203.4.
If you are considering the expungement of a child abduction conviction in California, you should seek legal counsel. An attorney can help you understand your expungement eligibility and guide you through the legal process.
How Can I Report a Case of Child Abduction in California?
If you believe a child has been abducted in California, you should report the situation to law enforcement immediately. Reporting the abduction can increase the chances of locating the child and bringing them to safety.
You could call 911 if you believe the child is in immediate danger. However, if the situation is not an emergency, you can contact your local police department.
You could also report the abduction to the (NCMEC) which stands for National Center for Missing and Exploited Children, by calling their toll-free hotline at 1-877-446-2632.
When reporting a child abduction case, you should provide as much information as possible to the authorities. Such information includes the child's name, age, physical description, and any other identifying features or clothing.
You should also provide any information about the person who abducted the child, including their name, physical description, and identifying features such as their vehicle information.
If you suspect that a parent or legal guardian has abducted a child, call the police. In that case, you should also provide the authorities with any relevant court orders or custody agreements that may be in place.
Once you have reported the abduction, you should follow up with the authorities to provide any additional information that may help locate the child. You should also notify the NCMEC if you have any updates or information about the case.
Federal Laws Against Penal Code 278 Violations
Federal laws have been established to cater to cases where a defendant has taken a child and left a state or the home country where the child comes from or stays.
The federal system borrows from the Hague Convention on the Civil Aspects of International Child Abduction, which the United States has adopted. It enables minors to be quickly returned to their home countries. This is a move made so the government can solve disputes over child custody.
Federal laws address child abduction offenses across different state lines. Some of the acts that are addressed include the following:
- Fugitive Felon Act.
Under this act, local DAs obtain federal arrest warrants for the arrest of defendants who have abducted a child and then taken them to another county or state where the District Attorneys have no right to act under such jurisdiction.
- International Parental Kidnapping Offense Act.
The act interferes with the custody rights of the parent or legal custodian if they have been charged with taking their child under 16 from the United States. This act distinctly classifies parental kidnapping if the child abduction involves international borders.
- Extradition Treaties Interpretation Act.
It is a federal act that was formed in 1998. It specifies that the definition of kidnapping under federal laws should include international child abduction where extradition treaties apply between the U.S. and other countries.
These are the acts that provide the federal police with a means by which to prosecute and criminalize child abduction crimes that have crossed country or state borders.
Related offenses to Penal Code 278
Under Penal Code 236, it is a crime to detain, confine, or restrain a person without their consent. You do not have to use violence or force to be charged with the crime of false imprisonment. This offense can be charged as a misdemeanor or felony.
If convicted, you could face a sentence of up to 3 years in jail or 4 years if you performed the act on a senior citizen and/or a fine of up to $10000.
Under Penal Code 207, kidnapping is defined as
- The act of moving a person to a significant distance from where they live or work without the person’s consent using fear, fraud, or force.
Kidnapping is a more severe crime than child abduction, and you could face a sentence of up to 8 years in prison if found guilty. If the offense involved a minor under 14 years old or you demanded a ransom, the sentence you could face is life imprisonment.
Unlike child abduction, which is a crime against the child’s parent or legal guardian, kidnapping is an offense against the person who was moved. You could be charged with both offenses depending on the nature of your case, that is, when it also involves a minor.
Contributing to the Delinquency of a Minor
Under Penal Code 272, you commit an offense when you enable or cause a minor to become:
- A habitual truant.
- A dependent of the court system comprising juveniles.
- A juvenile delinquent.
Find a Criminal Attorney Near Me
Child abduction is rising in California, with a previous study showing that over 60,000 minors were abducted in 2021. If you suspect that a child has been taken without the consent of their legal custodian, you should report this immediately to the local authorities so that measures can be put in place to trace the minor and bring them back.
If you are suspected or charged with committing the abduction, you should seek the counsel of an experienced criminal attorney. The lawyers should have many years of experience dealing with defendants accused of child abduction. They should also have had positive outcomes while defending those defendants in court.
At Chula Vista Criminal Attorney, we are ready to take your case and help you build solid defenses that will give you a positive outcome. Contact us today at 619-877-6894, so we can start working on your case.