Parental Kidnapping: It’s a Crime to Take Your Own Child (PC 278)
Many parents don’t realize that they can be charged with kidnapping their own child. In fact, in many kidnapping cases, the accused is more often related to the victim. Despite one’s good intentions, it is a serious felony in California to take your own child or hide the child from their legal guardian.
Non-Custodial Detainment (PC 278)
Under California Penal Code Section 278, a parent, family member, or any person without legal custody who maliciously takes or hides a child with intent to keep the child from their legal guardian is guilty of a crime. This is often referred to as child abduction.
Under California Penal Code Section 278.5, it is unlawful for one parent to maliciously deprive another parent of their custody right or to deny visitation rights. This is also known as interference with child custody. This means that it is possible to be charged with parental abduction even if you have joint custody. Moreover, even if you are granted sole custody, you can still be convicted of this crime.
In order to convict you of this crime, the prosecution must prove the following elements beyond a reasonable doubt:
- You maliciously took, enticed away, kept, withheld, or concealed a child from his or her lawful custodian;
- The child was under the age of 18;
- You did not have right to custody of the child when you acted; and
- You intended to detain or conceal the child from his or her lawful custodian.
Exception to Interference with Child Custody (PC 278.5)
If you have good faith and reasonable belief that the other parent is likely to inflict immediate bodily injury or emotional harm to the child, then you cannot be convicted of a violation of PC 278.5. However, if you do take the child, you must do the following within a reasonable time:
- Report to the District Attorney’s (DA) Office that you took the child;
- File for custody consistent with the Parental Kidnapping Prevention Act and Uniform Child Custody Jurisdiction Act; and
- Inform the DA of up-to-date contact information for the child.
Kidnapping vs. Child Abduction
Kidnapping is a separate and more serious crime than child abduction, and the two are often confused. Under California Penal Code sections 207-209.5, kidnapping means that the accused moved any person (adult or child) a “substantial distance” by use of force or threats. However, the penalties increase if the victim is under 14-years old.
Consequences of Parental Kidnapping or Abduction
Child abduction can be charged as a misdemeanor or felony in California. If you are convicted of misdemeanor child abduction, you face up to 364 days in jail and a fine of up to $1,000. If convicted of felony child abduction, you face up to two, three or four years in state prison and a fine of up to $10,000.
If you are convicted of kidnapping, you face three, five or eight years in state prison and a fine of up to $10,000. In determining sentencing, the judge may consider certain factors such as whether any of the following occurred:
- Any risk of physical injury or illness to the child;
- Physical harm or threats (or prior harm/threats) made to child or other parent;
- The child was brought outside the U.S.;
- The child was denied education during abduction;
- The child’s age;
- Duration of the abduction; or
- Attempts to conceal the child’s identity.
Impact on Custodial Rights
Parental kidnapping and child abduction are serious crimes. If convicted, your custodial rights will be impacted. The family court may also find you in contempt of a custodial court order in place, and could change or revoke custody/visitation rights if they find it is in the child’s best interest.
Possible Defenses
A skilled criminal defense attorney will know the legal defenses to kidnapping and child abduction charges. Some defenses might include:
- Intent. You did not have malicious intent;
- Good faith. You had reasonable belief that child was in danger;
- No custody order. There was no custody order in place at the time you took the child;
- Insufficient evidence. There is insufficient evidence that such allegations are true. For example, false accusations or conflicting testimonies.
- Mistaken identity. There was a mistake of fact or your identity was mistaken for someone else.
Where Can I Find an Experienced California Criminal Defense Attorney?
Accusations of parental kidnapping can ruin a parent’s life and hinder any future relationship with their child. If you or a loved one has been charged with child abduction or kidnapping violations or other related crimes, you need to contact an experienced criminal defense attorney immediately.
At Wallin & Klarich, our skilled attorneys have been successfully defending clients facing both child abduction and kidnapping charges for over 40 years. We will meet with you to review the facts of your case, and plan a strong defense strategy to help you get the very best outcome possible in your case.
With offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.
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