The term child abduction is used to describe anytime a child is kept or taken from the custody of its parents or legal guardian without their permission. This frequently occurs when a noncustodial parent violates an established custody order.
In a criminal sense, “kidnapping” is another word that many people use interchangeably with child abduction. Children can be abducted in several ways. A child abductor may be able to persuade a child to come with them by lying about who they are or about why they want/need the child to come or stay with them. In contrast, some child abductors choose to abduct a child using physical force.
Most people think of a stranger snatching away a child when they hear of a child abduction, but children are often abducted by people they know. In fact, the abductor is a family member or person otherwise known to the child in a majority of cases.
There are several child abduction laws in place across the United States that are used to punish and deter child abductors.
How Is Child Abduction Defined in California?
Under California law, the legal definition of child abduction is to take, entice away, keep, withhold, or conceal a person under the age of 18. The child abduction laws in California specifically state:
“Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian [is guilty of a crime]…”.
Any person who is not a child’s custodial parent or legal guardian can be charged with child abduction. This includes family friends, noncustodial parents, and extended family such as grandparents.
What Is the Difference Between Abduction vs. Kidnapping in California?
As noted above, lots of people use the terms child abduction and kidnapping interchangeably, but there is a difference between the two.
First of all, child abduction applies only to children under 18 years old, whereas a kidnapping can involve a person of any age (though the penalty for kidnapping is greater when the victim is a child).
Kidnapping is a more serious crime than child abduction. Unlike child abduction, a kidnapping employs force or threats to take control of the person being kidnapped. In addition, kidnapping generally involves transporting the victim a substantial distance.
What Are the Different Types of Child Abduction in California?
Child abductions in California fall into two different categories: stranger abductions and family member abductions. Some other jurisdictions have a third category, non-family abductions (when the abductor is not family, but is familiar to the child, e.g. neighbor, family friend), but the California Department of Justice only reports statistics on stranger and family member abductions.
Family member abductions are most often abductions by a noncustodial parent, but the abductor could be any family member of the child. A stranger abduction is an abduction by anyone not a part of the child’s family.
Stranger abductions are extremely rare and in 2019, the state of California had only 29 reported stranger abductions, in comparison to 1,587 reported family member abductions.
When is Taking My Child Not Child Abduction?
There are legal defenses to child abduction in some very limited circumstances. That is, a child can be taken or detained in violation of a custody order or visitation order if there is a legitimate and reasonable belief that the child would otherwise suffer immediate harm.
If someone does abduct a child based on such a belief, they must file a report with the district attorney’s office and commence a custody proceeding within days after the abduction. Anyone who is considering detaining a child on this basis should first contact an attorney for legal advice. An attorney can help to assess whether there is sufficient evidence to back up a belief in order for it to be used as a defense for child abduction. It’s also possible that there may be a legal avenue through the courts to ensure the child’s safety without risking prosecution for child abduction.
What Are the Consequences of California Child Abduction?
California law establishes criminal penalties for child abduction. Child abduction can either be charged as a misdemeanor or a felony. The court will take many factors into consideration when determining whether to charge the child abductor with a misdemeanor or a felony and in determining a sentence, including the following:
- If the child was exposed to a substantial risk of physical injury or illness
- If the abductor inflicted or threatened to inflict physical harm on a parent or lawful custodian of the child or on the child at the time of or during the abduction
- If the abductor harmed or abandoned the child
- If the child was taken outside the United States
- Whether the child has been returned to the lawful custodian
- If the abductor has previously abducted or threatened to abduct the child
- If the abductor substantially altered the appearance or the name of the child
- If the child was denied appropriate education during the abduction
- The length of the abduction
- The age of the child
If charged as a misdemeanor, the child abductor will be subject to a jail term not exceeding one year, a fine of not more than $1,000, or both. If charged as a felony, the child abductor will be subject to a prison term of two, three, or four years, a fine of not more than $10,000, or both.
In the case of a parental abduction where the parent is given a criminal penalty of jail or prison time, that person will obviously miss out on any visitation that they would otherwise have had during that period of time
An abductor who is a noncustodial parent will likely suffer civil consequences, regardless of if they are charged criminally or not. The consequences usually cost the parent exactly what they were upset about not having enough of in the first place. Possible consequences include a loss of custody, loss of visitation rights, or even suspended parental rights. The courts will likely take into consideration many of the same factors listed above that are considered when sentencing criminal cases for child abduction.
Should I Talk to a Lawyer About My Case?
You may need a child abduction lawyer to guide you if you are involved in a child abduction case in California. The attorney will make sure you are getting all of the most relevant information to the police and will be able to explain to you the efforts they are using to recover the child. In a high profile abduction, an attorney can also serve as a go-between the lawful guardians and the media to prevent additional stress during an already stressful time.
In addition, it is not uncommon for police departments to consider it a civil matter when custody of a child is disputed or when a noncustodial parent keeps a child after their rightful visitation ends, so long as the child does not appear to be in any danger. Under those circumstances you will have to take legal action through the courts to establish or enforce an official custody order. An attorney will do all of the legwork for you and will make sure all the proper processes are followed.
If you are unsure whether it would be worth it to hire a California family lawyer, many lawyers offer free consultations to give you an idea of what they are able to do to help.
