Long Beach Child Abduction Lawyers
What is Child Abduction?
Pursuant to the California Penal Code Sections 277-2801, the legal definition of child abduction is “the malicious taking, enticing away, keeping, withholding or concealing of any child with the intent to detain or conceal that child from their legal custodian, when the persons involved in this act do not have legal right or custody of the child”. Child abduction is most frequently committed by parents, step-parents and other members of the child’s family who do not have legal custody of that child.
If a Family Member or Parent Takes their Own Child, Can That be Considered Abduction?
The abduction of a child by a relative takes place when a person, often a parent, family member, or acquaintance of the child in question, takes, keeps, entices away, withholds or conceals the child, usually in violation of a court order custody or visitation. There are numerous reasons why a parent might want to abduct their own kid, include but are not limited to:
- The parent who perpetrates the abduction confuses their own frustration or disdain with the relationship as meaning that the other parent is bad for the child;
- The parent who perpetrates the abduction is afraid of losing custody or visitation rights;
- The parent who perpetrates the abduction is retaliating against the other parent by taking away something the other parent wants (namely, the child);
- The parent who perpetrates the abduction is taking the child from real physical injury or emotional harm, or a perceived threat of physical injury and/or emotional harm by the other parent;
- The parent who perpetrates the abduction is afraid of the values, influence and/or behavior to which the other parent may expose the child;
- The parent who perpetrates the abduction may have never intended to involve the other parent in raising the child and is trying to eliminate them by leaving;
- The parent who perpetrates the abduction may be attempting to force a reconciliation or contact with the other parent; and
- The parent who perpetrates the abduction wants to be more important in the child’s life and/or wants the child to become more dependent on him or her
The District Attorney’s Office of Child Abduction Unit gets involved anytime a parent or other family member without legal custody abducts a child. A child abduction involves not only the Family Court, Juvenile Court and/or Probate Court, but it might also involve a felony violation of California law.
What Exceptions Are There to Child Abduction?
Child abduction in violation of child custody
A child can be removed or withheld in violation of a custody or visitation order if there is a good faith and “reasonable” belief that the child (or children), if they remain with another person, parent, or legal guardian would suffer immediate bodily injury or emotional harm.
Nevertheless, if you remove your child or children for their protection under this exception, you need to contact your local District Attorney’s Child Abduction Unit immediately and follow legal reporting instructions. It is critical that you follow these instructions exactly or the exception will not apply to you and you could be looking at criminal charges of child abduction.
Child Abduction versus Kidnapping
Child abduction is frequently confused with kidnapping. Kidnapping is a much more egregious offense. As defined under the California Penal Code Sections 207-209.53, kidnapping involves moving a person a “substantial distance” without their consent, by use of force or threat.
Kidnapping is an offense made against a person of any age; nonetheless, penalties for kidnapping charges are steeper if the victim is under the age of 14. It is possible that you could be facing kidnapping charges instead of child abduction charges if you transport your child or children a substantial distance away from their legal custodian, dependent upon the circumstances of the case.
Getting Prosecuted for Abducting a Child or Children
In order to convict you of child abduction, the burden of proof is on District Attorney to prove beyond a reasonable doubt any of the following:
- You did not have a lawful right to custody of the child or children;
- Your intent was malicious or harmful to the child or to the legal custodian when you perpetrated the abduction. In other words, you were trying to maliciously deprive the persons involved of lawful custody or visitation rights;
- You exposed the child or children to bodily injury or emotional harm during the abduction;
- Whether you detained the child or children maliciously, regardless of whether or not the child or children resisted or objected;
Available Defenses to Child Abduction Charges
There are a number of defenses an experienced long beach child abduction lawyer can raise against a charge of child abduction. These include the following
- You actually had lawful custody of the child or children;
- You had good faith and reasonable belief that the child or children were in immediate danger of immediate physical injury or emotional harm;
- You removed the child or children, but the other parent had lost his or her parental rights due to neglect, abuse, or abandonment;
- You have been falsely accused or wrongfully arrested based on mistaken identity or mistake of fact; or
- There is not sufficient evidence to convict you of the crime.
Child Abduction Conviction: Sentencing and Punishment
The punishment for committing the crime of abducting a child can start from a misdemeanor offense, with up to 12 months in county jail and/or a fine of $1000, to a felony conviction, punishable by two to four years in state prison and/or a $10,000 fine, according to Penal Code Section 278
Additional consequences could include victim restitution or restitution to whatever agency prosecutes you. You might also face a civil suit for false imprisonment.
International Child Abductions: Hague Convention Cases
The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) was ratified in 1988 and the U.S. Department of State was designated to act as the U.S. Central Authority. They are the agency responsible for implementing the Convention in the US. The California Attorney General was designated by the Governor to assist the U.S. Department of State in discharging its duties under the treaty in the state of California. In response, a Child Abduction Unit was developed within the Office of the Attorney General to ensure compliance with California’s obligations arising under the Hague Convention. California’s system for handling child abduction cases, both domestic and international, can be held as a model for the rest of the United States and extends into the international arena, an area in which this office plays a central role in California.
The Child Abduction Unit acts as a liaison with officials from the U.S. and foreign Central Authorities, Consular Officials, judges, local prosecutors and investigators, as the details of each case requires.
International Child Abduction Cases Pursuant to the Hague Convention
The Deputy Attorneys General who are assigned to the Child Abduction Unit give legal information and policy advice to California District Attorneys (DAs) on child abduction cases, both civil and criminal, including international cases, and respond to appeals filed by people convicted of child abduction crimes.
The Child Abduction Unit lawyers and legal assistants liaise with the local prosecutors’ handling of requests for the return of abducted children under the Hague Convention. All Hague Convention cases received from overseas, including Mexico, which involve internationally abducted children believed to be held in the state of California (incoming cases) are directed to this office Their legal staff reviews the Hague applications, forwards the documents to the DA in the county where the child is believed to be located, gives guidance and technical support to DAs as needed on procedures and legal issues, and monitors the progress and outcomes of the cases.
Some International Child Abduction Facts
California alone receives more such cases than many countries. Within the five-year period between 2007 and 2011, California got an average of 69 new incoming cases per year, approximately half of which were cases from Mexico.
The Golden State’s case load is substantial even compared to other countries. In 2003, for example, California alone brought in 78 incoming Hague cases. In that same year, the entire nation of Canada received only 67, Australia received 62, and France 55. Only three nations received more incoming cases than the entire state of California did that year: Germany (98), Spain (106), and the United Kingdom (159).
California is a Model for Hague Cases
At present, only the State of California, through the Attorney General’s Child Abduction Unit, systematically utilizes public agencies to help in Hague Convention cases as an extension of local prosecutors’ existing responsibilities to recover parentally kidnapped children. For parents whose children have been stolen across borders and transported, in some cases, half-way around the world, this collaboration is invaluable. California’s system for handling these cases has been recognized nationally and internationally as a model for the rest of the United States. Your Long Beach child abduction lawyer can assist you in the recovery of your child, or if you have been accused, with defense.