Taking or keeping a child away from his or her legal custodian is a crime that carries substantial penalties. Even a child’s own parent can be convicted of child abduction under California law.
The offense of child abduction is committed when all of the elements below are present:
- The person “takes, entices away, keeps, withholds, or conceals” the child;
- The person acts maliciously; and
- The person has the intent to detain or conceal the child from a lawful custodian.
In addition, the person who takes the child either has to have no right to custody or must take the child with the intent to deprive a legal custodian of custody or visitation.
By law, it does not matter whether the child resists or objects to the offending party’s actions.
If all the elements are present, there is only one true defense to a charge of child abduction. This defense may apply if the person has a “right of custody” and takes the child “with a good faith and reasonable belief” that the child “will suffer immediate bodily injury or emotional harm” if left where she is. However, even when this limited defense applies, the person taking the child must report certain information to the county district attorney and must initiate a custody proceeding within a specified period of time.
The following are not defenses to child abduction:
- Taking or keeping the child because the other parent failed to pay child support; or
- Obtaining a custody order after the child has been abducted.
The punishment for child abduction is stiff: up to four years in prison and a $10,000 fine. The judge considers several factors in determining the proper penalty, including the following:
- The child’s age and the length of the abduction;
- Any physical harm or threat of physical harm to the child during the abduction;
- Whether the child was removed from the country;
- Whether the child was returned to the lawful custodian;
- Whether the child’s appearance was substantially altered during the abduction; and
- Whether the child was returned unharmed and before any arrest was made.
A judge may also impose restitution, either to the victim or to a state prosecuting agency. It should be noted that the criminal offense of child abduction is different than the civil offense of false imprisonment. This means that in addition to prison time and a fine, someone who abducts a child in California could be sued for money damages in a lawsuit.
Child abduction is a serious crime. If you are concerned that your child has been abducted, contact the police immediately. If you are involved in a divorce or separation proceeding, you’ll also need an aggressive, experienced attorney to protect you and your child. For help, contact The Law Offices of Judy L. Burger at (415) 259-6636.