Typically, child abductions involve one parent or guardian taking away a child from the other parent without consent and proper legal custody of the child. However, some abductions are due to a good cause, as one parent seeks to remove his or her child from dangerous conditions at home. Our Orange County Criminal Lawyer team is made up of brilliant lawyers who are ready to offer the best possible defenses for a case of child abduction. We listen and analyze the facts of your situation to establish a strong argument for you.
What is Child Abduction?
The California Penal Code defines the crime of child abduction as taking away and withholding, keeping or concealing the location of a child with malicious intent. The intention is usually to hide them from their legal parent or custodian, while the abductor usually has no right to have the child under his/her care or custody.
Child abduction is often the result of domestic crimes. An abusive partner may leave with a child and threaten his or her partner to stay away lest he/she harms the child. In this case, the child is the withholding factor used by the abductor to prevent the victim of domestic violence from taking any legal action like calling the police and informing them of the situation.
Definition of Terms
It is essential to define specific terms used in the Penal Code. Understanding them helps you as an accused person to determine if your actions lead to the complete description of child abduction.
Section 278 of the California Penal Code exclusively defines what each of the actions leading to child abduction entails. Keywords should be understood because they build up the prosecution process and may determine whether you are guilty of the offense or not. They are:
An action done maliciously means that the perpetrator intends a degree of harm or inconvenience to the victim of the action. In this case, if a parent or guardian loses his/her child, it may cause significant distress until the child is located. The abductor may also wish to cause harm to the child and, by extension, cause detrimental effects on the parents or guardian.
To entice someone is to lure them using attractive things like food, inanimate objects, or even promises. For example, an abductor can easily attract a child by offering him or her candy, as well as promising the child a trip to the amusement park. Usually, if you entice a person, it is because you cannot access them by reasonable and lawful means.
Keep, Withhold, Detain
Keeping or detaining a person typically involves holding them against their will. Moreover, withholding the abducted child means that you restrict their access to the outside world, including to search parties. If you detain or keep a person, you know that they are missing. Nevertheless, you choose to hold them in the place of hiding until you decide on what to do next.
Right to Custody
If a person has the right to custody, it means that the court has lawfully granted him or her the responsibility of taking care of a child. Therefore, he or she has the right to hold the child in his/her home. The person with the right to custody also provides for the child in question. Additionally, if anything happens to the child, the person with the right to custody can make decisions on behalf of him or her, because the law recognizes his or her responsibility to the child.
Crimes Related to Child Abduction
As an accused person acts, he or she may get carried away and use force on a child. Such consequences bring about further commissions of crimes. The most additional prevalent crimes include:
- False Imprisonment
The offense of false imprisonment involves depriving the abducted child the freedom of movement without any justification. Although the crime mainly relates to actual detention in correctional centers, the elements of the offense also cover the general detention of people in any other premise, as long as it is unlawful. Therefore, an offender may face an additional false imprisonment charge.
- Deprivation of Custody
If you are guilty of keeping a child away from the rightful custodian, you commit a crime under section 278.5 of the California Penal Code. The provision states that every person who conceals a child and maliciously deprived the lawful custodian of the child the right to the child’s custody shall be held guilty. Deprivation of custody may cause a legal guardian to engage police officers in a search that may take days. Therefore, the state frowns upon abductors who conceal the location and whereabouts of such a child, even when they know there is an active search ongoing.
- Contributing to the Delinquency of a Child
Once an abductor gets hold of a child, he or she may forcibly make the child engage in wrongful and inappropriate actions, like participating in forceful prostitution. A child abductor may engage in child trafficking, where he or she receives payment for exploiting a child. Moreover, delinquent actions also involve the abductor causing the child victim to miss school and forcing him or her to engage in drug use and other acts of debauchery.
An example of kidnapping as a related crime is where the accused locates the child he or she wants to abduct maliciously. However, if the child is in the company of another person, the abductor may result in kidnapping the other person who is close to the targeted child. The main aim of extended kidnapping is to remove the possibility of any witnesses who can successfully identify you. Therefore, on top of child abduction, you could face kidnapping of another victim.
The Law on Child Abduction
The California Penal Code makes exclusive provisions for the crime of child abduction under sections 207, 277, and 278.
Section 207 makes the distinction between kidnapping and child abduction. While most people commonly use the terms interchangeably primarily when referring to children, a clear difference is observed under the section. The crime of child abduction is an offense against the lawful parent of the child in question as it is on the abducted child. It involves depriving that parent of the legal custody that he/she has over the abducted child. When instigating a suit, the State will prosecute on behalf of such a parent as the claimant. Consequently, any remedies will be directed to him or her.
On the other hand, kidnapping is a crime against the child. The actual action of escaping with a minor and forcibly detaining him or her is actionable. The suit will place the child as the claimant. The prosecution works on their behalf as the Republic in a criminal case. Similarly, any remedies to be issued will be for the child/children’s benefit.
Section 278 defines the crime of child abduction. There are crucial elements to the establishment of the offense as a whole. Firstly, an abductor may entice the child by tricks or promises. Secondly, the abductor then keeps or withholds the child in hidden premises and conceals his/her location. The section also mentions the intent as malicious concealment of the child from the legal custodian.
What the Prosecution Needs to Prove in a Child Abduction Case
When you are arrested and arraigned in court for a child abduction charge, the prosecution needs to build a case against you based on the evidence or findings they make. Therefore, the burden of proof lies on the prosecution at all times. The exception applies in raising a defense that needs the defendant to elaborate. At all times, the judge requires that criminal intent, as well as the actual act committed, is proved. In legal terms, the Actus Reus and Mens Rea elements must be established for a conviction to pass.
Additionally, these are the factors for the prosecution to prove beyond a reasonable doubt:
- The Child was Below 18 Years
The prosecution needs to overcome this technicality and prove that the abducted person was a minor. It may appear as a mere technical element, but carries a lot of weight in establishing legal grounds for a suit in the first place. A child’s age is a rebuttable presumption of fact and may be challenged by introducing evidence to prove otherwise. Relevant documents to verify the validity of a child’s age includes birth certificates, school identification documents, as well as medical records. Your criminal lawyer can raise a point of reasonable doubt regarding the age of the child. The prosecutor will, therefore, have to prove the correctness of this claim.
- The Accused Lacked Right to Child’s Custody
Typically, the prosecutor will be quick to prove that you did not have any legal right to approach and take the child away. Sometimes in adverse scenarios, you may even have a restraining order that prohibits you from coming into proximity with your child. All these factors are used to disqualify you as the accused and stack evidence against you.
However, your criminal lawyer can refute the allegations and produce relevant and valid documentation that gives you an allowance to see your child. The documents need not exclusively state the granting of custody rights but may mention the benefit provided to you as a biological parent. If you are a guardian, your lawyer could cite the documentation giving you absolute original responsibility for the child/children.
- You Had the Intent to Detain the Child Maliciously
For a proper establishment of a case against you by the prosecutor, he or she must prove the Mens Rea (criminal intent). The intent must consist of deliberate intention, that he or she should also determine. Often, such evidence can only be adduced from surrounding circumstances leading to the abduction of the child. Alternatively, the court could issue a search warrant to the police and scour your premises to check for any evidence that shows your prior planning of the crime. For such evidence to come to life, all these different factors must be linked. It is not an easy task to do, much to your advantage as an accused person because your lawyer will rebut the findings by giving a reasonable justification.
- Your Mode of Handling the Child was Crude and Negligent
The prosecutor will also try and paint you as the offender, in attempting to show that you probably subjected the child in question to physical or emotional abuse. Sometimes, false information may be filed against you, relying on the shallow findings that the child was found in your possession. Some of the allegations against you might be that you did not give the child food or that you threatened to harm them if they resisted following your orders. Typically, the prosecutor may prepare and prejudice the child against you, the accused, to give an incriminating narration of events in court.
Penalties for the Crime of Child Abduction
The crime is classified as a wobbler crime, meaning it can be charged as a misdemeanor or a felony. The charge issued depends on the circumstances leading to the crime. If you acted reasonably and did not use violence or threats throughout the abduction, the court may consider granting you a lighter sentence. Section 278 of the Penal Code provides the penalties for both misdemeanors and felonies.
If charged with a misdemeanor, you could get twelve-month imprisonment in county jail or pay a $1,000 fine. Additionally, you could get both sentences at the discretion of the judge. When charged as a felony, the accused will face two to four years in state prison or pay a $10,000 fine or both. These sentences can be enhanced or reduced by the judge, based on the events and mitigating factors relevant to your case.
The Sentencing Process of the Crime of Child Abduction
Once you are found guilty of abducting a child based on the evidence presented, the judge moves to issue a sentence. He or she follows the stipulated penalties in section 278 of the Penal Code.
Despite the straightforward provisions of punishment issued on guilty parties, the judge may raise or lower the severity of the sentence based on aggravating or mitigating factors. These two factors work concurrently and bring different results. According to Section 278.6 of the Penal Code, aggravating factors will raise the sentence to be issued, because they worsen the circumstances surrounding your case. Conversely, mitigating factors can lower the sentence issued because they are positive actions taken by the defendant and show reform.
Several factors can aggravate child abduction sentence as follows:
- Changing the Name and Physical Appearance of the Child
An accused person may use a false identity to enable the abducted child to pass undetected in restricted zones like airports. Moreover, the abductor may change the physical appearance of the child to throw off any person who is on the lookout. For example, if the victim is a young girl with long brown hair, the abductor may dye it a different color or cut it off completely. A judge will consider the invasion of personal decision that you subjected to the child by forcibly changing his/her outward appearance. Also, you will have made search efforts more difficult deliberately, which slows down the process of access to justice. Therefore, you may receive an enhanced sentence.
- You have Restricted the Child from Access to Education
Logically, if you are trying to detain or withhold and abduct a child, you will forbid them from going to school. Their attendance may raise the alarm to the relevant authorities and consequently get you arrested. In restricting the child from going to school, you deny him or her the right to education. The restrictions imposed are highly unlawful and will inevitably aggravate any penalties issued on you.
- Taking the Child to Another Country
By evading authorities and fleeing to another country, you put yourself and the abducted child at considerable risk, especially if you travel using unlawful or counterfeit passports. Immigration authorities in different countries may be unaware of any case of child abduction, and, therefore, harass the child as they seek to obtain information. Additionally, fleeing the country means that officers’ effort to locate the child is highly frustrating. Therefore, a judge or jury can quickly increase your penalties to serve time for the inconvenience caused.
- Subjecting the Child to Pain
Sometimes, coercion of the child to follow your orders includes extreme violence. An accused person may also strike the child with a blunt object or hit him or her using too much force. The court does not take kindly to a defendant who subjects a child to violence, mainly because he or she is defenseless at the time of pain infliction.
Your Orange County criminal lawyer should raise any crucial mitigating factors to help reduce your sentence significantly. If you act in a remorseful way, the judge or jury handling your case may decide to be more lenient on you. The two main mitigating factors mentioned in section 278.6 are:
- Providing Useful Information to Help Locate the Child
Although a lost child will be due to your fault, you could receive a lower penalty by cooperating with the District Attorney or prosecutor handling your case. If you provide them with helpful information to find the missing child, they could offer you a plea deal. The deal often includes provisions of significantly lower sentences and penalties to be issued to you.
- Returning the Child to the Lawful Custodian Unharmed
If you return the abducted child to the parent or guardian with him/her healthy and unharmed, the court may consider it an act of remorse and reform. Therefore, your actions could mitigate the penalties you were supposed to face, and may even earn you specific visitation rights if you are a parent to the child as well.
Defenses For the Crime of Child Abduction
If you are an accused person, you deserve legal representation from a qualified lawyer who will raise strong defenses for you at trial. Some of the best arguments to the crime are:
- Action in Good Faith
A parent or guardian who genuinely feels that their children are in danger despite being under the care of their legal custodian may have to abduct them. Although this course of action is not conventional, it is sometimes the only way to go. If the defense affords proof that the other party is the one that poses harm and risk to a child, the judge will be ready to listen and allow a significantly reduced sentence for your actions if he/she must issue a verdict.
As a caring parent or guardian, your defense can include all suitable measures you took even as you opted for abduction, like contacting authorities and child protective services yourself to ensure your child’s safety.
- You Have Valid Custody of the Child/Children
Some inaccurate information may surface because of corrupt systems or malicious people, revoking the validity of your right to custody. While you have every right to your child, a manipulative or abusive spouse may go to great lengths to ensure that any validity is erased from the system. When your criminal lawyer proves that you have legal rights to stay with your child, the judge may completely absolve you of charges, provided he/she is satisfied that you did not act in an abusive way.
However, Section 278.5(c) states that if the evidence supporting the defense can is only available after the crime and charges are already placed, it cannot be accepted as a defense. Therefore, it must be based on genuine validity so that the lawyer can prove the existence of relevant documents way before abduction occurred.
- Mistake of Fact
Sometimes, things are not as they seem. As an accused person, you could be wrongly charged with a crime that you never committed. The case of mistaken identity is a common occurrence and provides a valid defense against a charge of child abduction. Witness statements may be inaccurately based on human memory, which is not a guaranteed source of evidence. Therefore, your lawyer can raise the defense where you are sure of the mistaken identity or any other mistake of fact stacked against you.
- The Imposition of False Claims
Defendants in court are often prone to suffer the prejudice that is already built against them by the criminal charge they face. Therefore, a claimant or a prosecutor may use this factor to add false statements of fact and pin them on you, the defendant. Such cases are common, especially in estranged couples. One partner may maliciously commit perjury by lying under oath and giving false witness statements. Some of the inaccurate records provided may involve occurrences that never happened, like hurting the abducted child. In extreme situations, a defendant may even face a child abduction charge for an act he or she entirely did not commit.
The witness statements made by the claimant party suing on behalf of the State tend to attract more credibility in court naturally. The existence of such a factor is one of the reasons why you need your criminal attorney present. He or she will have the knowledge and skill required to rebut and question the validity of such false witness statements. Once he or she has determined that the narrations given by witnesses are indeed untrue, he/she can request the removal of witnesses from the stand. The request aims to promote just proceedings that assure accountable verdicts.
Find a Criminal Lawyer Near Me
We understand the complicated nature of facing child abduction charges, especially when you are the biological parent or entrusted guardian of the child. We at Orange County Criminal Lawyer devote ourselves to finding solutions to any legal challenges you may face as well as provide excellent legal representation at trial. We will be happy to support you in your legal process. Give us a call today at 714-262-4833.