California law defines child abduction as 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 commonly committed by parents, step-parents and other family members of the child who do not hold rights of legal custody to the child.
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Child abduction occurs when someone, typically a parent, family member, or acquaintance of a child, takes, entices away, keeps, withholds or conceals the child, typically in violation of a custody or visitation order.
Abduction by a Parent
Abduction is often done by a parents when:
- They fear losing custody or visitation rights.
- They want to “get back at” the other parent.
- They believe there is a need to remove the child from real physical injury or emotional harm, or a perceived threat of physical injury or emotional harm by the other parent.
Exceptions to Abduction
A child may be taken or detained in violation of a custody or visitation order if the person who has custody has a good faith and reasonable belief that the child will suffer immediate bodily injury or emotional harm if left with another party. If you use this exception, to take your child away for their protection, you must immediately contact your local District Attorney’s Child Abduction Unit and follow specific reporting instructions. If you do not follow these instructions, the exception will not apply and you could face criminal charges for child abduction.
Abduction & Kidnapping
Child abduction is often confused with kidnapping, which is a much more serious offense. California law defines kidnapping to be moving a person a “substantial distance” without their consent, by use of force or threat. Unlike child abduction, kidnapping is an offense made against a person of any age; however, penalties for kidnapping charges increase if the victim is under the age of 14 years old. It is possible that you could be facing kidnapping charges rather than child abduction charges if you take your child or children a substantial distance away from their legal custodian, depending on the circumstances of the case.
In order to convict you of child abduction, the District Attorney must prove beyond a reasonable doubt that one of the following applies:
- You had no lawful right to custody of the child.
- You were attempting to maliciously deprive the persons involved of lawful custody or visitation rights.
- You exposed the child to bodily injury or emotional harm during the abduction.
The fact that abduction occurred is proved by using an objective standard. This means, the prosecution must prove that you acted maliciously, with the intent to take, entice away, keep, withhold, or conceal the child from the other parent or other parent’s agent. If every element of the crime can be proven beyond a reasonable doubt, you can be found guilty of child abduction.
Defenses to Child Abduction Charges
There are several defenses to a charge of child abduction. These include, but are not limited to the following:
- You had lawful custody of the child.
- You had good faith and reasonable belief that the child was in imminent danger of immediate physical injury or emotional harm.
- You took the child away, but the other parent had lost his or her parental rights due to neglect, abuse, or abandonment.
Child Abduction Sentencing
The punishment for committing the crime of abducting a child can range from a misdemeanor offense, which carries a maximum of up to 12 months in county jail and/or a fine of $1,000.00 to a felony, which is punishable by up to four years in state prison and/or a $10,000.00 fine. You could also be required to pay victim restitution or restitution to the prosecuting agency and face a possible civil suit for false imprisonment.
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