The abduction of children or minors in California has become prevalent nowadays. Not all defendants in these cases are guilty. The majority of child-abduction cases occur when parents are undergoing a divorce or fighting for custody. In such cases, one of the parents might claim the other has stolen or abducted their child. The parent who is trying to find the child then goes to law enforcement with the hope of getting the kid back and also gaining an advantage in the divorce or custody case in court. Although some cases are genuine, there are those founded on a false accusation.

At the California Criminal Lawyer Group, we are here to help you when facing charges of juvenile abduction or any other type of domestic violence. Our attorneys never rule out the possibility of false allegations hence willing to represent you under any circumstances. Below we have discussed what makes up child abduction and what to expect when facing these allegations.

Overview of Child Abduction

California Penal Code 278 is a law that focuses on child abduction. Breach of this statute occurs any time an individual who is a family member and usually a parent takes away a child or children from their lawful guardian or parent. The violation of this statute happens through enticing away, taking, or hiding the young one. The statute aims to protect parents or legal guardians from the nervousness and anguish they undergo when someone takes their minor away deprived of their consent. Child abduction is not a crime against the child, but rather, it is against the parent or guardian with legal custody.

Also, note that a natural parent holds the right to the physical safekeeping of the juvenile. It means a natural parent can conceal the child for an extended duration to protect them but by following the legal guidelines. If you have the right to physical custody and you don’t want to face child abduction charges, make sure that you file a Good Clause with the DA’s office. If you fail to do that in ten days, you will be facing child-abduction charges. Alternatively, you might seek legal custody from the court, but you have to file with the court within thirty days. Otherwise, you will be facing PC 278 violation charges.

If you aren’t a natural parent to the minor, you should report the danger you are concealing the child you have taken without permission to the police or child protective agency.

Elements of Child abduction

Specific facts must be proven beyond doubt before the court finds you guilty. These facts are:

With Malicious Intent, you Enticed Away, Took, Withheld a Child Under 18

The court focuses on whether your actions of taking, enticing away, or concealing the minor were intended to commit an unlawful act, injure or irritate someone else. First, the prosecuting attorney must show that you detained someone. By confining, it means they must show you delayed or prevented a child from returning to the natural parents or lawful guardians. The prosecution usually has an advantage in prosecuting child-abduction cases because they don’t need to prove that you detained or withheld the child. The most important thing is demonstrating that you had the intention to do so with malice.

Furthermore, it’s essential to know that enticing a minor doesn’t always involve coaxing. By just showing that you generated desires or hope in a child hence luring or attracting her, the prosecution will prove you enticed the child.

When you Proceeded, you Lacked Custody Over the Minor

Having the legal rights of custody over a child means the law has granted you permission to physically care for the minor and have control over him or her. These rights belong to the natural parent of a child whose rights of custody have not been revoked by the court or to another person who obtained a court order to assume the minor’s care. Remember, a legal custodian is not always a person. Even a public agency might be considered a lawful custodian. If the prosecution proves you were not any of these designated legal guardians, you are likely to be convicted for this offense.

You Particularly Intended to Take or Hide the Minor from Seeing His or Her Legal Guardians

Another fact the prosecution wants to prove to the court is that your actions were intended to prevent the parents or guardians of the minor from setting eyes on him or her.

Consequences for Child abduction

The Abduction of a child as per PC 278 is a wobbler offense. The situation around your incident and your previous criminal record will determine the charge the prosecution will file. In the event, the prosecutor files a misdemeanor charge, and they find you guilty, you will be subject to as much as 364 days in jail or/and court fines not beyond one thousand dollars. For felony convictions, the court might grant you probation and no more than twelve months in jail, or 24, 36, or 48 months in prison and court fines amounting to no more than $10,000.

On top of these penalties, if the parents or legal guardians of the abducted child spent any money to look for the child, you will have to pay them for these expenses.

Sentencing Hearing

A sentencing hearing is an opportunity for the defense and prosecution sides to air their views before the sentencing. It often happens after a conviction. In this opportunity, the defense gets the chance to present vindicating factors as to why the sentence should be reduced. Conversely, the prosecution presents aggravating factors as to why the court should increase the penalties. With this in mind, now you understand why a profound criminal defense attorney is critical.

What happens in child abduction sentence hearing is that you plead guilty to the charges or enter a no-contest plea to a criminal charge. Alternatively, the judge or the jury might convict you of the abduction of a minor. A judge then gets the opportunity to execute a sentence. After you have pleaded guilty or have been convicted of a misdemeanor child abduction charge, the punishment will be imposed within a minimum of six hours and a maximum of five days. However, the time might be extended if there is a motion for a new trial if a probation recommendation is coming from local probation offices, or when awaiting a determination of whether you are sane.

For felony convictions, the sentence is received after 20 days of no contest, pleading guilty or being sentenced. The period can also be extended for ten days in exceptional circumstances. If a verdict is not out immediately, the court might order you to remain in custody. If you were out of supervision, they might request you to be brought into custody or order you to post bail. The decision on the matter is up to the judge unless you are facing misdemeanor charges, and you have filed an appeal or applied for parole.

In a sentencing proceeding, you have the following rights as a defendant:

  • The right to be present for sentencing
  • The right to have representation from an attorney
  • The right to present evidence on your behalf
  • The right to propose alternative sentencing
  • The right to be summoned for judgment

Although you have all these rights, there is an exception. You aren’t allowed to cross-examine witnesses during the penalizing proceeding.

Note that sentencing proceedings are much more flexible and informal. But particular rules still have to be followed. At the end of the hearing, selected sentencing is imposed based on aggravating and mitigating factors. Some of the mitigating factors your attorney can use to see the sentence reduced include:

  • You were involved in arranging for the safe return of the stolen child by sharing useful information
  • Before an apprehension warrant was issued, you had already returned the child to the parent safely

If your attorney can present these facts well, the judge is likely to reduce the penalties that you will face. However, keep in mind that the prosecution would like to make an example of you to others who are thinking of abducting a child. Because of that, they will present aggravating factors that might guarantee a sentence of between three to four years in prison. Some of these aggravating factors include:

  • During your arrest, the legal guardians or parents of the under 18 were not with him or her
  • You conspicuously changed the minor’s name or looks
  • At the time you were detaining the minor, you exposed him or her to a substantial risk of harm or illness
  • You took the child outside the country
  • At the time of the abduction, you inflicted injuries on the child, legal custodian, or natural parent

Legal Defenses for Child Abduction

As mentioned earlier, the California Criminal Lawyer Group believes that many cases of abduction of minors involving parents or close family are false allegations. It means that with the right defense, you can always poke holes in the prosecution’s discovery to prove your innocence. Some of the arguments that are applicable in these cases include:

  1. You Had the Right to Child Custody

If you are the natural parent of the kid and your rights of custody haven’t been revoked by the court, then you are innocent. Even if you grabbed the child away without notifying the other parent, it is your legal right to care for and control the child, which includes traveling together physically. The only problem you would have is if you stole the minor to engage in an unlawful act.

A legal custodian or a person working for a public agency given the rights of custody cannot face conviction of this offense. However, if during the time of the alleged abduction the child sustains severe physical injuries, or you subject the minor to emotional damage, you can be charged with PC 272 violation. Failure to provide the child with basic needs during the time of detaining can also lead to PC 272 charges but with no allegations of child abduction.

  1. The Individual You Took the Minor from was not the Lawful Custodian

PC 278 has the objective of protecting legal custodians from the anguish and anxiety that follows after a child has been taken from them without their approval. Any person who is not a legal custodian or guardian is, therefore, not part of this statute. It means that if you seized the child from somebody who doesn’t have the right of custody or visitation, then you are not guilty. If you use this defense, the court will rule in your favor under this statute as long as you show the person who was with the child during the alleged abduction lacked the legal guardianship of the minor.

  1. False Accusation

When parents are in dispute over child custody or during divorce, a divorce process, chances are one of the parents will try to gain an advantage in the case by falsely accusing the other of child abduction. If you ultimately believe you are innocent, this defense can work to your advantage.

Mistaken identity can also be a defense if you feel that your arrest was illegal. The mistaken identity will be the best strategy where you match the physical description of the person who abducted the child. In your defense, you can contend that the car the offender was driving resembles yours. Thus, the reason for the arrest.

Note that there are multiple reasons why you can be unlawfully arrested or falsely accused of the abduction of a child. It is up to your attorney to be enthusiastic about his or her work and invest time and resources to find out if the allegations against you are right or not.

  1. Your Actions were not Malicious

For you to be guilty of abducting a minor, there must be malicious intent when enticing away or taking the child. If malicious intentions did not drive your conduct, then you are innocent. The justification will work best where you were taking the child away from the authorized custodian to keep them safe from harm. If you were motivated by good intentions to take the child, then the argument will work.

However, if you grab the minor to irritate or harm another person or engage in an unlawful act, then you will be guilty because your actions had wicked intent. Also, the defense will not sue you if you stole and decided to keep the child indefinitely. The intentions might be right, but if you fail to inform the social services agency or law enforcement after taking the child, you might be guilty if you wait until you are caught with the minor. The wise thing to do is after ensuring the child is out of the risk of being harmed by the legal custodians, inform the authorities about the child. Concealing the child further will be considered abduction.

  1. Inadequate Evidence

You are entitled to acquittal if the prosecution doesn’t prove the charges beyond moral certainty. It is up to them to authenticate using every element of this defense that you violated the law. Usually, the evidence by the prosecution appears convincing that you are not innocent. However, when it comes to convincing the jury and the judge beyond a reasonable doubt, they might lack the required evidence. An excellent attorney will use this opportunity to argue that the prosecution lacks sufficient proof of your guilt. Hence the charges should be removed.

Related Crimes

Contingent on the circumstances surrounding your case, multiple other offenses can be filed instead, in place of or alongside child abduction. These offenses are:


The violation is legally distinct and more severe than child abduction, but they are still related. According to PC 207, taking, or carrying away someone else by use of energy or fear is called kidnapping. Use of fear or force means that the perpetrator of the act threatened the victim with power or, in the real sense, used energy to move the victim. The distance defined under this statute is moving a person outside his or her county, state, or country. Relocating a person to another place in the same count by use of force or fear is also kidnapping.

PC 207 breach occurs when:

  • You hire another person to kidnap the victim
  • You seduce a minor under the age of 14 to leave the state with you to engage in a lewd act
  • You commission an act of human trafficking

The significant difference between kidnapping and abduction of a child is the person who committed the criminal offense. PC 207 violation is an unlawful act against the victim of the kidnapping. But in child abduction, the crime is committed against both the minor and the legal guardian.

Remember, a kidnapping charge can become aggravated PC 207 if:

  • Your victim is less than fourteen years
  • You request a ransom
  • You cause physical harm or death on the victim
  • You kidnap an individual during a carjacking

If you are found guilty of a PC 207 violation, you will be facing incarceration in a California prison for between three to eight years. If the victim is aged 14 years or below, you will be facing eleven years in prison. You would be subject to a harsher sentence if the kidnapping occurred during carjacking because you might incur up to life imprisonment.

False Imprisonment

PC 236 makes it a crime to inhabit another person’s freedom. It relates to child abduction because abducting a minor involves confinement. You will face false imprisonment as an additional charge if you knowingly limit or inhibit the child’s freedom of movement or ability to move.

False incarceration is often a misdemeanor. Nevertheless, if you use any form of violence, menace, or fraud, you will face felony charges. The consequences of a felony sentence are incarceration in a California prison for as many as thirty-six months.

Note that in child abduction, if the juvenile is too young to resist, the perpetrator might direct menace, fraud, deceit, or violence towards the legal custodian of the youngsters, thus inhibiting their freedom. If this is the case, you will face child abduction and false imprisonment of detaining the lawful guardians of the kid and not necessarily the minor.

Contributing to the Delinquency of a Minor

The transgression is arrayed under CPC 272. The charges for violating this statute are pressed against persons with no substantial relationship with the child they are abducting. You will be found guilty as per this law if you create or attempt to create a meaningful relationship with a minor to lure or entice him or her away. PC 272 charges will only hold in court if the prosecution can prove you willfully avoided getting permission from the legitimate custodians of the minor. The offense can be charged as a misdemeanor or infraction. If you are charged with a misdemeanor offense, you should try and get the charges reduced to an infraction. The penalties for a conviction are court fines and no parole or jail time. Infractions are the least serious offenses in California.

Deprivation of Custody

The breach is defined under PC 278.5. It is closely related to child abduction. The only difference is that child abduction focuses on individuals without custody rights over the child are accused of abduction. PC 278.5, on the other hand, targets individuals with legal custody. Compared to PC 278, deprivation of care is a lesser offense that could be filed as a misdemeanor or a felony. If sentenced for felony charges, you will face no more than 36, 24, or 16 months in prison.

Find a San Jose Criminal Defense Attorney Near Me

Facing any domestic violence charge is a terrifying ordeal. Luckily, many people don’t go through this experience. If you exist among the unlucky persons and you are facing charges of child abduction, there are many traps the prosecution can use to convict you even if you are innocent. That is the reason you should call San Jose Criminal Attorney Law Firm at 408-622-0204 to begin preparing defenses for your case. Our experienced attorneys will take time to evaluate the situation and provide the best way forward, thus giving you peace of mind.