California Child Abduction Laws – Sentencing, Punishment and Defenses
Child Abduction Laws – Sentencing and Punishment (PC 277-280)
Pursuant to California Penal Code Sections 278 and 278.51, a violation of child abduction laws is known as a “wobbler” – meaning, you can be charged with either a misdemeanor or a felony, depending on certain elements of the case. The court will consider the following in making a determination as to how you are charged and sentenced, if you are convicted:
- The circumstances of the offense, and
- Your criminal history.
Misdemeanor Child Abduction Conviction
If you are convicted of a misdemeanor violation of child abduction laws, you face up to one year in county jail and a maximum $1,000 fine.
Felony Child Abduction Conviction
If you are convicted of a felony, you face either (a) probation, including one year in county jail, or (b) two, three or four years in state prison and a maximum $10,000 fine. If you abduct a child in violation of a custody order or visitation rights, the penalties are similar, except that the felony charge subjects you to 16 months, or two to three years in prison instead of two, three or four years (Penal Code 278.5).
In addition to these penalties for violating child abduction laws, you must pay restitution to the District Attorney’s office and/or the victim; or to anyone acting on the victim’s behalf, for any costs reasonably incurred in locating and returning the child to the other person or parent.
The Sentencing Hearing
At the sentencing hearing following a conviction for a violation of child abduction laws under Penal Code Section 278 or 278.5, the court will consider any relevant facts in aggravation – meaning your sentence can be increased – including, but not limited to any of the following:
- The child or children were exposed to substantial risk of physical injury or illness;
- You inflicted or threatened to inflict physical harm on a parent or legal guardian of the child or on the child during the abduction;
- You harmed or abandoned the child or children during the abduction
- The child or children were abducted and taken out of the United States
- The child or children were not returned to the lawful custodian
- You previously abducted or threatened to abduct the child or children
- You substantially altered the appearance or name of the child or children
- You denied the child or children appropriate education during the abduction
- The length of the abduction.
At the time of sentencing for violation of child abduction laws under Penal Code Section 278 or 278.5, the court may also consider factors in mitigation – meaning circumstances which may lessen punishment from this crime including, but not limited to:
- You returned the child or children unharmed prior to your arrest or issuance of an arrest warrant, whichever was first;
- You provided information and assistance to leading to the child or children’s safe return to their other parent or legal guardian.
Child Abduction versus Kidnapping
Child abduction laws are often confused with kidnapping due to the similarity of these crimes. It is possible that you could face kidnapping charges if you take a child or children away from their legal custodian, depending on certain circumstances.
You violate California’s kidnapping laws pursuant to California Penal Code Sections 207-209.52, when you move another person a “substantial distance” without that person’s consent and by using force or fear.”Force or fear” means that you actually inflict physical force upon the alleged victim or that you threaten to inflict imminent physical harm. Charges and penalties for this crime become more severe if you move another person a substantial distance by using force, fear or fraud and if any of the following apply:
- The victim is a child under 14 years of age; or
- You accompany the kidnapping with a demand for money (known as ransom); or
- The victim suffers bodily harm or death; or
- You kidnap another person or child while you are violating California Penal Code Section 2153, California’s “Carjacking Law.”
Simple kidnapping is a felony offense, carrying three years, five years or 8 years in
state prison. If your child victim is under 14 years old, the sentence increases to five years, 8 years, or 11 years in state prison.
Aggravated kidnapping is also a felony crime and carries a sentence of five years to life, depending on the facts of the case.
There are three primary differences between kidnapping and child abduction:
- First, kidnapping requires that you move the victim a substantial distance, whereas child abduction does not have this same requirement.
- Second, child abduction requires an intent to detain or conceal a child from his/her lawful custodian. However, kidnapping is much broader. Taking a person of any age with any illegal intent is enough to sustain a kidnapping conviction.
- Third, kidnapping is a crime against the person who has been kidnapped. Child abduction is a crime against the parent(s) of the child who is abducted.
The District Attorney can charge you with violating one or both of these laws, depending on the circumstances surrounding the offense. You should consult with an attorney at Wallin & Klarich immediately if you are facing kidnapping charges.
Child Abduction – Defenses (PC 277-280)
An experienced and knowledgeable California criminal defense attorney at Wallin & Klarich will be able to develop several different defenses to a charge of violating child abduction laws. A child may be legally taken or detained in violation of a custody or visitation order or under certain circumstances as discussed below:
Lawful Custody of the Child
You had lawful custody of the child or children and did not expose them to either physical or emotional injury or threat of injury. Your attorney may be able to argue that you did not actually abduct the child or children; merely, you were simply away and the person or parent with legal custody was unable to contact you.
Intention of Good Faith
You abducted the child or children, but you had good faith and reasonable belief that the child or children, if left with the legal custodian, were in imminent danger of immediate physical injury or emotion harm. In this case, it is critical to consult with a criminal defense lawyer right away, as there are reporting procedures that must be followed immediately in accordance with the District Attorney’s office in order to be exempt from prosecution.
Loss of Custody or Visitation Rights by the Legal Custodian
You took the child or children away, but the legal had lost his or her parental rights due to neglect, abuse, or abandonment. If the other parent has lost his or her parental rights, then you did not abduct them and the prosecutor has no evidence to convict you of this crime.
False Accusations or Mistaken Identity
You were falsely accused or wrongfully arrested for violating child abduction laws based on mistaken identity or mistake of fact. For example, the other person or parent accused you of abducting the child or children for his or her own malicious reasons, such as having an intense dislike for you and wanting to see you get into trouble.
There is insufficient evidence to convict you of the crime. Abduction is an objective term, and may be difficult for a prosecutor to establish that you did so beyond reasonable doubt.
Call Wallin and Klarich Today
Violation of child abduction laws is a serious crime carrying harsh consequences upon a conviction. At Wallin & Klarich, our attorneys have over 40 years of experience making sure our clients receive the best legal representation possible. We have the skills and knowledge to help you successfully defend the charges against you.
With offices in Orange County, Riverside, San Bernardino, Victorville, Los Angeles, Torrance, West Covina and San Diego, the attorneys from Wallin & Klarich are familiar with the prosecutors in the District Attorney’s offices and will work with the court to achieve the best result possible in your case. We’ve helped thousands of clients in their time of legal need, and we can help you now.
Call us today at (877) 4-NO-JAIL or (877) 466-5245) for a free telephone consultation. We will get through this together.
All of the information provided on this page was retrieved from the following sources:
1. [California Penal Code Sections 277-280: http://leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=277-280]↩
2. [California Penal Code Sections 207-209.5: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=207-210]↩
3. [California Penal Code Sections 211-215: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=211-215]↩