Child abduction cases are always heartbreaking. Normally law abiding people can find themselves in serious legal trouble all thanks to a misunderstanding, false accusation or a situation that is more complicated than it seems.

If you or someone close to you has been accused of child abduction, it’s critical to speak with a defense attorney as soon as possible. Even if criminal charges are never filed, facing an accusation of child abduction can be damaging to your personal and professional reputation. 

An attorney can help you defend your name in the public sphere and allow you to get back to living your life.

How does California law define child abduction (278 PC)?

In order to convict someone of a criminal charge, a prosecutor has to show that certain facts of the case were true. These are known as the “elements of the crime.” In California Penal Code 278 PC, there are the four elements of child abduction:

  1. The defendant maliciously took or withheld a child from their lawful custodian. The important word here is “maliciously” — the prosecution has to prove that you intentionally meant to disturb, defraud or injure someone else.
  2. The child was under the age of 18. If the alleged victim was 18 or older at the time, the case instead could fall under kidnapping or false imprisonment.
  3. The defendant did not have a right to custody when they acted. 
  4. The defendant intended to detain or conceal the child from the child’s lawful custodian. In other words, when the defendant acted, they meant to deprive the child from contact with their legal guardian or custodian.

What’s notable here is that the defendant must be shown to have intentionally and maliciously taken a child from their rightful guardian. In cases of an accident or a misunderstanding, the defendant cannot be convicted of child abduction.

There is also a related charge in 278.5 PC called “deprivation of custody.” This involves intentionally or maliciously taking or withholding a child in order to deprive a custodian of their right to visitation. It most commonly arises in custody sharing arrangements when one party refuses to abide by their custody sharing rules.

Penalties for child abduction

Child abduction is a “wobbler” in California, which means that it can be either a felony or misdemeanor depending on the facts of the case and the defendant’s criminal history.

Misdemeanor child abduction is punishable by up to a year in county jail and up to $1,000 in fines. 

Felony child abduction carries penalties as high as four years in state prison and $10,000 in fines. A felony conviction can also lead to a number of other negative consequences, including loss of voting rights, loss of gun rights in California and immigration consequences.

Defenses against child abduction charges

As we mentioned above, these cases can be heartbreaking, because usually every party is trying to act in the best interest of the child. If you or someone close to you has been accused of child abduction, the state must prove:

  • That you did not have a legal right to the child
  • You maliciously took to child from their legal custodian
  • You then intentionally deprived that child from lawful contact with their custodian

All it takes is to show that one of the “elements of the crime” wasn’t true, and charges can be reduced or dropped entirely. A skilled attorney can review the facts of your case and develop a defense against these allegations.

Robert M. Helfend has practiced in the Los Angeles area since 1984, securing thousands of successful judgments for his clients in that time. He is rated as a top attorney by SuperLawyers, Lead Counsel and the National Trial Lawyers Top 100. Call today for your free case evaluation — 800-834-6434.

Published July 10, 2020.