Criminal offenses involving minors are always treated seriously. As a result, law enforcement agencies take the offense of child abduction seriously. A conviction of child abduction can result in long imprisonment terms and hefty fines.
This is why you must build a robust defense strategy if you have been charged with child abduction. In this article, we will explain what elements the prosecutor must prove for you to be convicted of child abduction.
We will also highlight the penalties for child abduction and other related criminal offenses. Moreover, we will explain how you can fight criminal charges for child abduction.
If, after reading this article, you will still have more questions about this topic, contact us at Michele Ferroni Pasadena Criminal Attorney Law Firm to speak to an attorney. We are here to help you. We offer criminal defense services throughout the Pasadena area.
The Legal Definition of Child Abduction
The primary law in California on child abduction is PC 278. As per Penal Code 278, it is unlawful to take away a child from his or her legal guardians or parents and block these individuals from accessing the child.
In California, child abduction is deemed to be a wobbler. The prosecution can charge it as a felony or misdemeanor, depending on their discretion and the gravity of the case's circumstances.
The complainant in child abduction cases is the parent or legal guardian, not the child. This is why you may still face charges for child abduction even if the child consented to be taken away.
What Elements Must the Prosecutor Prove to be Convicted of Child Abduction?
There are certain elements that the prosecution must demonstrate for the judge to convict the defendant in any criminal lawsuit. The prosecution must prove these elements to a standard of beyond reasonable doubt.
Here, the term ‘beyond reasonable doubt’ means the evidence required to prove each element must be so strong and convincing that there is no other reasonable explanation for the defendant’s guilt. In other words, there should be no doubt in the judge's or jury's minds that the defendant committed the crime.
You will not be convicted if the prosecutor does not prove any of the required elements to the required standard beyond a reasonable doubt. In a child abduction lawsuit, the prosecution must prove each of these elements to the standard of beyond reasonable doubt:
- As the defendant, you took away a child from his or her parents or legal guardians.
- You intended to conceal or detain the child away from his or her legal guardians or parents.
- The child is below 18 years old.
Here is a comprehensive discussion of each of these elements:
You Took Away a Child from his or her Parents or Legal Guardians
The prosecutor must prove that you took away the child from his or her parents or legal guardians. He or she must demonstrate that you removed the child from the vicinity of his or her legal guardians or parents.
You will still be convicted even if the child consented to be taken away. The prosecution must also show that the legal guardian or parent never permitted you to take away the child.
Here, the term parent or legal guardian means any person with lawful custody over the child. This might be a biological parent or any person who obtained the child’s custody via an order of the court. In divorce cases, this means the spouse the court awarded custody.
You Intended to Conceal or Detain the Child Away from his or her Legal Guardians or Parents
The prosecution must show that you maliciously intended to detain or conceal the child from his or her legal guardians or parents. You will be acquitted if you had no such malicious intent.
The prosecutor can prove this element by illustrating the facts and circumstances of the abduction. For instance, he or she can tell the court you lied about the child's whereabouts. Or, he or she can prove to the court that you refused to speak to the child’s parents or legal guardians.
The Child was Below 18 Years Old
In California, the legal definition of ‘child’ is anyone below 18 years old. The court can only convict you if the minor involved is less than 18 years old.
In most child abduction cases, this element is quite easy to prove. All the prosecutor needs to present to the court is the child's identification documents. These identification documents will tell the age of the child.
What are the Penalties for Child Abduction?
As earlier stated, child abduction is deemed to be a wobbler. This means that the prosecutor can charge it as a felony or a misdemeanor, depending on his or her discretion and the facts and circumstances of your case.
As a misdemeanor, child abduction attracts an imprisonment term of a maximum of one year. Or, the judge can order you to pay a fine not exceeding $1,000. The punishment for felony child abduction is an imprisonment sentence of two, three, or four years. Sometimes, the judge can order you to pay a maximum fine of $10,000.
What are the Possible Legal Defenses of Child Abduction?
Remember, you must build a robust defense strategy to fight child abduction charges. Your attorney can help you do this.
Some of the possible legal defenses that your lawyer can use to fight child abduction charges include the following:
- You were accused falsely.
- You had legal custody of the child.
- The complainant does not have the child’s legal custody.
- You did not have malicious intent to detain or conceal the child from his or her parents or legal guardians.
- You received consent from the parent or legal guardian.
Below, we discuss each of these defenses briefly:
You were Accused Falsely
You can assert that you have been accused falsely. You will be acquitted if you successfully use this defense.
For instance, you can tell the court that it is a case of mistaken identity; you were not the one who abducted the child. Or, you can use an alibi to demonstrate to the court that you were somewhere else when the child was abducted.
Note that you must provide evidence for any assertion you give the court. This evidence should be reliable and credible, and the prosecutor should not be able to poke holes in it. Your defense attorney can help you do this.
You had the Child’s Legal Custody
You cannot be convicted of child abduction if you had the child’s legal custody at the place and time in question. You will be acquitted as long as you prove you had the child’s legal custody.
For instance, a mom cannot be convicted of child abduction if she traveled with the child to another country for some days. Or, a legal guardian cannot be jailed for child abduction if he or she takes the child to his or her friend for a couple of weeks.
Note that you must be engaged in a lawful activity with the child to use this defense successfully. You can be charged with other crimes if there is evidence showing you were exposing the child to unlawful activity at the place and time in question.
The Complainant does not have Legal Custody of the Child
Remember, the complainant in child abduction cases is usually the parent or legal guardian. You will be acquitted if you prove that the complainant does not have legal custody of the child.
Also, remember that one of the elements that the prosecutor must prove for you to be convicted is that you took away the child from his or her parents or legal guardians. This means that you will be acquitted if you prove the complainant is neither the child’s parent nor legal guardian.
You Never Had a Malicious Intent to Detain or Conceal the Child from his or her Parents or Legal Guardians
Recall that one of the elements that the prosecutor must prove for you to be convicted of child abduction is that you had a malicious intent to detain or conceal the child from his or her parents or legal guardians. You will be acquitted if you had no such malicious intent.
You can tell the court that you only had good intentions. For example, you were genuinely confused about who the child’s lawful guardian is. Or, you might have believed that the child’s parent is violent, and you concealed the child to protect him or her.
You Received Consent from the Parent or Legal Guardian
You can argue that you received consent from the parent or legal guardian. You will be acquitted if you successfully use this defense.
You can demonstrate consent by showing the court your recorded conversations with the legal guardian or parent. Or, you can have someone else testify on your behalf that you indeed received permission.
Does a Child Abduction Conviction Result in Adverse Immigration Consequences?
A conviction for child abduction may result in adverse immigration consequences for non-US citizens. For instance, you may get deported. Or, the Immigration Department may mark you as inadmissible. This is why a non-US citizen must hire a criminal defense attorney who is also well-versed in immigration law.
California Immigration Laws stipulate that a conviction for aggravated felonies may result in negative immigration consequences. For instance, the convict may get deported, or the Immigration Department may mark him or her as inadmissible.
Here, an aggravated felony means any felony with grievous consequences to the victim. A misdemeanor conviction for child abduction cannot result in negative immigration consequences.
Will you Lose your Firearm Rights upon being Convicted of Child Abduction?
You won't lose your firearm rights upon being convicted of misdemeanor child abduction. On the other hand, a conviction of felony child abduction will make you lose your gun rights.
Basically, you will not have a civil right to:
- Own a firearm.
- Possess a firearm.
- Buy a firearm.
Can you Get Convicted of Child Abduction under Federal Law?
Besides being a state offense, child abduction is a federal crime. This means that you can be convicted of child abduction under federal law.
You will be convicted of child abduction under federal law if you transferred the child to a different country or state. Numerous federal law provisions prohibit child abduction, such as the following:
- The Hague United Nations Convention — This United Nations Convention explicitly provides how abducted children can be returned to their resident countries.
- The International Child Abduction Remedies Act — This statute stipulates how parents or legal guardians whose children have been transported to foreign countries can file child abduction complaints in their domestic courts instead of leaving the US.
- The Fugitive Felon Act — This statute grants power to the local district attorney's office to obtain arrest warrants for people guilty of child abduction and who have fled from California to other states.
- The International Parental Kidnapping Crime Act — According to this statute, it is unlawful to transfer a child outside the US to deprive the legal guardian or parent of his or her custody rights.
- The Extradition Treaties Interpretation Act — This statute criminalizes child abduction and kidnapping.
Can you Expunge a Criminal Conviction for Child Abduction?
A criminal conviction can result in life-altering consequences. Because of your criminal record, you might be unable to access decent housing, scholarships, and university admissions. You may also miss out on promising employment opportunities. This is why it would be best to expunge a criminal conviction.
You can expunge a criminal conviction for child abduction if you meet the following requirements:
- You were convicted of misdemeanor child abduction.
- You completed serving your sentence, either the probation or jail term.
Note that it is impossible to expunge a felony child abduction conviction. This is because California Criminal Laws prohibit the expungement of felony convictions.
How People Lodge a Child Abduction Complaint in California
The best way to lodge a child abduction complaint in California is to call the police. Also, you can contact the National Center for Missing and Exploited Children (NCMEC). Their hotline number is 1-877-446-2632. You can contact this center at any time, regardless of whether it is day or night.
When you call the police, ensure you give all the personal details of the defendant you may have. Sometimes, the police might ask for a physical description of the defendant. In that case, ensure you describe the defendant the best way you can.
The police may also require you to explain how the child abduction occurred. Also, ask the police to record the details of the missing child in the National Crime Information Center (NCIC) database.
Which Other Criminal Offenses are Related to Child Abduction?
Besides child abduction, depending on the facts and circumstances of your case, you can face charges for other offenses, such as the following:
- False imprisonment.
- Contributing to the delinquency of a minor.
- Deprivation of the right to visitation or custody.
In some cases, the prosecutor can drop your child abduction charges and instead charge you with these offenses. Below, we briefly discuss these criminal offenses:
California’s primary law on kidnapping is Penal Code 207. This offense has more grievous penalties when compared to child abduction.
According to Penal Code 207, it is unlawful to move someone else a considerable distance without his or her consent and while using fear, fraud, or force. You may be charged with this criminal offense instead of child abduction if the alleged victim is above 18.
Also, while the complainant in child abduction cases is the legal guardian or parent, the complainant in kidnapping cases is the individual kidnapped. As per the facts of your case, you might find yourself facing the following two criminal lawsuits:
- Child abduction, where the complainant is the parent or legal guardian.
- Kidnapping, where the complainant is the child.
Kidnapping is classified as a felony. Its penalty is an imprisonment term not exceeding eight years. However, you may get a life sentence if there are aggravating factors present in your case, such as demanding a ransom or the victim being below 14 years old.
According to PC 236, it is unlawful to detain, restrain, or confine another person without his or her consent. Note that, unlike kidnapping, you will still get convicted of this offense even if you did not use fear, force, or fraud to detain the victim. False imprisonment is a potential additional charge to child abduction in cases where force, fear, or fraud was not used to detain the child.
Remember, the complainant in child abduction cases is the parent or legal guardian. On the other hand, the complainant in false imprisonment cases is the victim, that is, the child. Similar to kidnapping, as per the circumstances and facts of your case, you might find yourself facing the following two criminal lawsuits:
- Child abduction, where the complainant is the parent or legal guardian.
- False imprisonment, where the complainant is the child.
Just like child abduction, false imprisonment is categorized as a wobbler. Misdemeanor false imprisonment attracts a county jail term of a maximum of one year or a fine of up to $1,000. The punishment for felony false imprisonment is an imprisonment term not exceeding three years.
Contributing to a Minor’s Delinquency
PC 272 is the primary law in California against contributing to a minor’s delinquency. According to Penal Code 272, it is illegal to help or cause a child to engage in unlawful behavior.
You may face charges for this crime, alongside child abduction, if evidence shows you caused or helped the child to engage in unlawful activity at the time and place of abduction. This means you will find yourself facing two criminal charges: child abduction and contributing to a minor’s delinquency.
The criminal offense of contributing to a minor’s delinquency is deemed a misdemeanor. Its punishment is a jail sentence of a maximum of one year or a fine of up to $2,500.
Deprivation of the Right to Visitation or Custody
The primary law in California on deprivation of the right to visitation or custody is Penal Code 278.5. You can only be charged with this offense when divorced or separated from your spouse.
This offense is quite similar to child abduction. The distinction between these two offenses is that while the defendant in child abduction cases is a person without lawful custody, the defendant in deprivation of the right to visitation or custody cases is a person having lawful custody.
According to Penal Code 278.5, it is illegal to interfere with the visitation or custody rights of your co-parent. You will receive a conviction for deprivation of the right to visitation or custody if the prosecutor proves to the standard of beyond reasonable doubt, each of the following elements:
- You maliciously withheld or took a child.
- The child was below 18 years old.
- Your action of withholding or taking away the child deprived your co-parent of his or her visitation or custody rights.
Like child abduction, the complainant in a case for deprivation of the right to visitation or custody is the aggrieved co-parent. Deprivation of the right to visitation or custody is also classified as a wobbler.
The penalty for misdemeanor deprivation of the right to visitation or custody is a county jail term not exceeding one year or a fine not exceeding $1,000. On the other hand, the penalty for felony deprivation of the right to visitation or custody is an imprisonment term of 16 months, two or three years, or a fine of a maximum of $10,000.
Find a Pasadena Criminal Defense Attorney Near Me
Get in touch with us at Michele Ferroni Pasadena Criminal Attorney Law Firm for a confidential consultation if you or your loved one has been arrested for child abduction in Pasadena. We are available 24/7.
We will help you build an effective defense strategy against your charges. This way, you might get the best possible outcome. We are also here to help you if you have any legal questions about child abduction. Call us at 626-628-0564.