Receiving charges of child abduction is a serious matter. An experienced and knowledgeable criminal defense attorney should be able to provide several approaches for fighting these charges on their client’s behalf. Here’s how to fight parental child abduction charges in California.
Are Child Abduction Charges Different from Child Kidnapping Charges?
Child abduction laws may be confused with child kidnapping, but there are a few key differences to keep in mind. The California Penal Code renders child kidnapping as moving another person a “substantial distance” without their consent, and by using either force or fear. Charges for this type of crime may vary depending on factors such as whether or not the kidnapped child was injured or if they were under the age of 14.
Child abduction, on the other hand, is essentially defined under California Penal Code 278 as the violation of another person’s right to physical custody or visitation of a child. Unlike kidnapping, the term “child abduction” refers to parental-type abductions, not kidnapping by a stranger.
Related: Parental Kidnapping in California: What You Need to Know
Factors considered by the court when charging an individual with the crime of child abduction include, but are not limited to:
- The length of the abduction
- Age of the child
- Whether or not the child was physically harmed
- If the child was taken or enticed outside of the United States
- If the defendant has had prior instances of abducting or threatening to abduct the child
Options when Facing Child Abduction Charges
There are certain circumstances that a child may be legally taken or detained in violation of a custody or visitation order. Examples of these circumstances are:
Lawful Custody of the Child
If the charged individual did not expose the child in question to physical or emotional injury, their attorney may be able to argue that the child was not abducted. Rather, the person with lawful custody was merely unable to be contacted.
Mistaken Identity or False Accusations
This line of defense essentially states a person was falsely accused or arrested for child abduction based on mistaken identity or mistake of fact. This may be proven if the individual charged with child abduction believes the other person or parent has bad intentions for pressing charges and is essentially doing so out of spite or malicious purposes.
Loss of Custody or Visitation Rights by the Legal Custodian
If the legal custodian parent lost their parental rights due to issues of neglect, abuse, or abandonment, the defense may use this to their advantage. If the other parent no longer has parental rights, then the individual being charged did not abduct the child.
Intention of Good Faith
This line of defense is useful for instilling the reasonable belief that the person accused of child abduction had a good reason for doing so. This reason would be that if the child or children were left with the legal custodian, they would be in immediate physical or emotional harm.
Finally, if an individual’s legal team believes there is insufficient evidence to convict them of child abduction, this may also be a valid defense. Insufficient evidence or the broad nature of abduction may weaken the prosecution’s argument.
Related: 7 Ways to Prevent Parental Child Abduction in California
FAQs About Fighting Parental Child Abduction Charges in California
When is child abduction a crime?
Typically, a prosecutor must prove that an individual charged with child abduction acted maliciously, withheld a child from their lawful custodian, the child was under 18, or if the abductor took the child without a lawful right to custody.
Can a person get a child abduction conviction expunged?
Yes, this is a possibility if the individual was charged with a misdemeanor abduction or if the defendant successfully completed a jail term or probation. A person cannot get a felony conviction expunged.
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If you have any more questions about how to fight parental child abduction charges in California, contact us. Get your free consultation with one of our California Family Law Attorneys today!