When two responsible parents are loving and protective of their child or children, whether separated or living as a couple, it is reasonable to argue that having each parent in the child's life significantly benefits the child. As a parent, the thought or imagination of losing your child's custody after an abduction can be immensely upsetting and sickening.
Generally speaking, when most parents think of a child abduction scenario, they imagine a stranger with a mask grabbing their child and driving away with him/her. While this can happen, parents are the perpetrators in most child abduction cases. As strange as it seems, approximately 78% of all reports about missing children occur after one parent illegally takes his/her child.
In these cases, it is mostly a parent who refuses to follow proper child custody arrangements who is the perpetrator. Unfortunately, when many parents do this, they never think their actions can attract child abduction charges. If you are under arrest, under investigation, or charged with child abduction in Anaheim, you should seek the services of an attorney immediately.
At California Criminal Lawyer Group, we bring several years of experience to help you challenge the alleged child abduction charge. If it is impossible to convince the court to dismiss the alleged charge, we will strive to negotiate for alternative sentencing like probation, allowing you to avoid lengthy jail time.
The Difference Between Child Abduction and Kidnapping
The crime of child abduction is often confused with kidnapping. While these two offenses are closely related, there are distinct crimes in the eyes of the law. As defined under Penal Code (PC) 207, you commit the offense of kidnapping when you move another person from one place to the other without his/her consent.
Even if the alleged defendant did not move the victim or accuser a far distance, he/she could be guilty of kidnapping under certain circumstances, for instance, if:
- The movement increased the victim's risk of injury or death.
- The distance was enough to help the defendant avoid detection.
Generally, kidnapping is an offense against the person whom the kidnappers had to move from one place to the other without his/her consent, regardless of age. Since kidnapping is a felony, a conviction could attract severe penalties, including up to eight (8) years of jail time and a fine not exceeding $10,000. However, if your offense has aggravating factors, these penalties could increase.
Conversely, child abduction is a wobbler offense under PC 278. According to this statute, you commit the crime of child abduction when you, with no legal right of custody, unlawfully take your child away and keep him/her from the other parent or legal guardian. Unlike kidnapping under PC 207, child abduction is a crime against the parents or lawful custodians of the child.
Additionally, the prosecutor can charge you with child abduction even if the child did not resist or he/she consented to go or drive with you to an unknown destination. For the sake of prosecution for a PC 278 violation, a lawful custodian could be a person, public agency, or guardian with a legal right of custody over a particular child after a court order. Having lawful custody over a child means:
- You have a right to his/her physical care.
- You have a right to control the child.
Eligibility for Bail After an Arrest for an Alleged Child Abduction Charge
After an arrest for a PC 278 violation, securing your freedom as soon as possible should be your priority. However, it could cost you some money (bail) to regain your freedom, pending the alleged charge's trial date.
While it is possible to post bail at the jail where you are in custody, the arresting officers could detain you until your arraignment date, where the judge presiding over your charge will:
- Read the alleged charges.
- Allow you to enter a plea (not guilty, guilty, or no contest).
- Determine your eligibility for bail and your charge's bail value.
- Schedule your future court dates (pretrial and trial hearing).
Since you are not yet guilty of the alleged charge, the court could release you on bail if you are a first-time offender and are not a flight risk. Other factors that could affect your eligibility for bail include:
- Whether you have community ties.
- Whether you have a criminal background.
- Your behavior in the court.
- Your record of showing up to court after a release on bail.
In some cases, the court could allow having you released out of custody on your "own recognizance," meaning you do not have to post bail, which could be expensive and a financial burden to you. If you are eligible for a release from jail without bail, you must promise in writing that you will return for future court dates as required to challenge the alleged PC 278 violation.
If you do not have an attorney already, hiring a skilled defense attorney would be a wise idea to investigate your case and prepare defenses to challenge the alleged charge at trial.
What the District Attorney Must Prove for a Conviction for a PC 278 Violation
During the prosecution for a PC 278 violation, the district attorney or the prosecutor presiding over your case will carry the burden of proof. To secure a conviction against you for the alleged child abduction charge, he/she must prove the following facts beyond a reasonable doubt:
You Maliciously Did Take a Child From His/Her Lawful Custodian
The first element the prosecutor must prove for a conviction under PC 278 is that you did take the child in question maliciously, meaning you were aware your actions were wrongful or illegal. Taking the child "maliciously" could also mean you had the intent to:
- Injure another person.
The Child Was a Minor
For a conviction for the alleged PC 278 violation, the prosecutor must also prove the child in question was a minor, meaning he/she was under eighteen (18) years old.
You Did Not Have the Legal Right to Custody Over the Child
You did not have a court order allowing you to have custody of the child when you did the alleged act.
You Had the Intent to Detain and Conceal the Child from His/Her Lawful Custodian
The prosecutor must further prove to the court that you had the mental intent to detain and hide the child from his/her legal custodian. That means taking the child from his/her lawful custodian was not a mistake or an accident.
How a Defense Attorney Can Challenge the Alleged Child Abduction Charge
The alleged PC 278 violation does not necessarily have to result in a conviction. Your defense attorney can explore various legal defenses to oppose the alleged charges under PC 278 for the best possible verdict at trial. Some of the applicable defenses include:
You are the Child's Legal Custodian
If you had full legal custody and visitation of the child when you did the alleged act, you would not be guilty of child abduction under PC 278. For this defense to work out in your favor, your defense attorney must provide evidence of a court order showing you are the child's lawful custodian.
You Did Not Have Malicious Intent When You Did the Alleged Act
A seasoned attorney could also argue with clear and convincing evidence that you did not have malicious intent when you committed the alleged act of taking the child from his/her lawful custodian. For instance, your attorney could argue that confusion or misunderstanding about the child custody terms and conditions prevented his/her exchange at the court-scheduled place and time.
That means you did the alleged act in good faith and not with unlawful intent to frustrate the other parent's or guardian's custodial rights over the child. If the judge accepts this argument as viable and reasonable, he/she will either drop or reduce the alleged PC 278 violation to a related, less severe offense.
You Did Not Have the Intent to Conceal the Child
Recall that you are only guilty of the alleged child abduction charge if the prosecutor can prove that you intended to conceal or hide the child from his/her legal custodian. If your reason to remove the child from his/her lawful custodian was to protect him/her from imminent harm or danger like child abuse, the court would not convict you of a PC 278 violation.
Another reasonable argument to support this defense is showing the court that you had a reasonable belief that the child could suffer emotional harm if he/she remains with his/her lawful custodian.
You are a Victim of False Accusations
A PC 278 violation is a crime ripe for false accusations. For instance, if there was a bitter breakup or child custody dispute, one parent could be eager and happy to see the other land in trouble with the law as revenge or an attempt to become even. Lawmakers understand this could be possible, meaning there are chances that you could be a victim of false accusations.
There is Insufficient Evidence Against You
Sufficient and convincing evidence must be available for a conviction for the alleged PC 278 violation. Arguing there is insufficient evidence against you is a negative defense where your attorney provides evidence and testimony to show that you did not commit the alleged child abduction offense.
Alternatively, your defense attorney can argue that the prosecutor lacks evidence to prove your guilt beyond a reasonable doubt, as required under PC 278. Pertinent evidence the court would consider viable to challenge the alleged offense includes the following:
- Facebook messages, emails, or text messages from the other parent or accuser.
- Statements or testimonies from family members or eyewitnesses.
- Impeachment evidence of the other parent or accuser, for example, mental illness, criminal history, or drug use disorder.
- Video and audio recordings of the incident.
- Any court document outlining or showing the terms and conditions of the family law judge's orders.
While there are several defenses your attorney can apply to challenge the alleged child abduction charge, the above-explained defenses are the most common and viable in most cases. Your defense attorney will take time to review and examine the particulars of your unique case to craft defenses that will work out in your favor to obtain the best possible results on the alleged charge.
Legal Punishment for a PC 278 Violation Conviction
Unfortunately, if the prosecutor's evidence against you outweighs your attorney's evidence, meaning you are guilty of the alleged charge, the court will sentence you. In most cases, the judge will determine the appropriate sentence for your conviction at a separate proceeding known as the sentencing hearing.
The following factors could significantly influence the judge's decision on your sentence for a conviction under PC 278:
- Your criminal background.
- Whether or not the child was a risk of injury while in your custody.
- The prosecutor's recommendation on the appropriate sentence for your conviction.
- Your attorney's mitigating arguments.
Since child abduction is a wobbler offense, you should anticipate felony or misdemeanor penalties upon conviction. Your criminal history and the sophistication of your unique charge will determine whether the prosecutor will file it as a felony or misdemeanor. A felony conviction for a PC 278 violation will carry the following penalties:
- A fine not exceeding $10,000.
- Up to three (3) years of custody in the state prison.
- Formal supervised parole or probation.
- Loss of child custody or visitation rights.
- Attend and complete the court-ordered counseling sessions.
Conversely, if you are guilty of a misdemeanor child abduction charge, your legal penalties will include the following:
- Up to $1,000 maximum fine.
- Detention in the county jail for not more than one (1) year.
- Attend and complete court-ordered counseling sessions.
- Loss of child custody and visitation rights.
- Abide by a protective or restraining order.
- Informal probation.
Other Consequences of a Conviction for a PC 278 Violation
In addition to the above-mentioned legal penalties, a conviction for a PC 278 violation will also carry the following negative consequences:
Loss of Your Firearm Rights
A conviction for a felony PC 278 violation can affect your legal rights to own and carry a firearm. According to PC 29800(a)(1), it is illegal for a convicted felon or person with an active felony warrant(s) to own and possess a firearm. A conviction for a PC29800(a)(1) violation is a felony that can attract up to three (3) years in jail.
A conviction for a child abduction charge can also attract negative immigration consequences, like deportation, if you are a non-citizen. That is true, even if you are a legal immigrant, and this could give your life the quick turnaround you expected.
A Criminal Record
Aside from serving your sentence, a conviction for a PC 278 violation can also follow you for the rest of your life, affecting several life opportunities on your path because of a criminal record. Unless you obtain an expungement, a conviction for a PC 278 violation will remain on your criminal record for the rest of your life.
That means any potential employer interested in your criminal background will know you have a conviction for a child abduction charge, which could affect your employment opportunities.
For all these reasons, facing the legal justice system without an attorney would not be in your best interest if you are under arrest or investigation for an alleged child abduction charge. A reliable and experienced defense attorney can significantly affect the judge's decision on the alleged charge to obtain the best possible outcome.
How to Obtain an Expungement for a PC 278 Violation Conviction
As mentioned above, a conviction for a PC 278 violation will remain on your criminal record, which can be detrimental to your reputation and professional life. Fortunately, you can avoid these possible negative consequences by filing an expungement petition under PC 1203.4.
Contrary to popular belief, an expungement does not clean up your criminal record. Instead, if you are eligible for an expungement, the court will withdraw your "guilty," "no contest" plea and replace it with a "not guilty" plea. After that, the court will dismiss your case, and it will appear like you never had a conviction for a child abduction charge.
While obtaining an expungement could relieve you from the negative consequences associated with a conviction, not every person qualifies for this post-conviction relief option. Generally, you would be an excellent candidate to have your record expunged under PC 1203.4. if the following is true:
- You do not have a charge for any other crime.
- You are not currently in jail or on probation.
- You have a misdemeanor PC 278 violation conviction.
- You have successfully reduced your felony conviction for a PC 278 violation to a misdemeanor.
- You do not have any outstanding or uncleared court fines.
If you want to expunge your conviction for a PC 278 violation, your defense attorney can help you file the proper forms and evidence required under PC 1203.4. Also, obtaining an expungement is not cost-free, and you should be ready with the required fee ahead of time. If you have a felony conviction, you should be ready to pay up to $120 when filing your PC 1203.4 petition.
On the other hand, if you have a misdemeanor conviction for a PC 278 violation, the court will require you to pay not more than $60 as the fee for filing an expungement petition. If you are indigent or cannot afford the required fee, the court could give you a waiver.
Once your attorney files your PC 1203.4 petition, the court will schedule a hearing to determine whether you are an excellent candidate for this post-conviction relief. Whether or not your presence is necessary during this hearing will depend on your unique conviction facts.
There is no jury during this hearing, and a judge will ultimately decide whether to accept your expungement petition. Typically, the judge is more likely to grant your expungement petition if:
- You are ready to find employment.
- You have completed all the required community service.
- You have no additional convictions.
Offenses Closely Related to Child Abduction Under PC 278
Below are a few offenses closely related to the crime of child abduction under PC 278:
As one of the offenses closely related to child abduction, the prosecutor could file a false imprisonment charge against you instead of or in addition to the alleged PC 278 violation. According to PC 236, you commit the crime of false imprisonment when you unlawfully detain, confine, or restrain another person against his/her will.
In other words, false imprisonment is the illegal violation of another person's liberty and is chargeable as either a felony or misdemeanor because it is a wobbler. A misdemeanor conviction under this statute will attract up to one year in jail and a possible fine of not more than $1,000.
If there is evidence against you to show that you restrained the person using fraud, violence, or deceit, the prosecutor will file your charge as a felony. A conviction for a felony false imprisonment charge will attract the following potential penalties upon conviction:
- Up to one three (3) years in jail.
- Up to $10,000 maximum fine.
Contributing to the Delinquency of a Minor
PC 272 defines the crime of contributing to the delinquency of a minor as causing or enabling a minor to:
- Become habitual truant.
- Engage in a delinquent behavior.
- To become dependent on the juvenile legal justice system.
A PC 272 violation is a misdemeanor and could attract a jail sentence of up to one (1) year and a fine not exceeding $2500.
Find a Defense Attorney Near Me
If you are under investigation or arrest for allegedly abducting your child in Anaheim, our experienced attorneys at California Criminal Lawyer Group can help. We understand how local courts treat child abduction cases, and we will strive to build defenses that can put you in the best position to obtain a desirable outcome.
We invite you to call us at 714-766-0965 to schedule a consultation with our defense attorneys as soon as possible to begin preparing defenses to challenge the alleged charge.