Child Abduction

California superior court judges also view child abductions in a particularly harsh light, which is why there are numerous state laws that provide protective orders to aid law enforcement in preventing these types of crimes. For example, if any police officer or sheriff’s deputy has reasonable grounds to believe that you are going to illegally abscond with the child, then that officer can immediately – i.e., without the necessity of a hearing or any other form of due process – have a judge issue an emergency protective order (“EPO”) against you.

Specifically, under California Family Code section 6250, a judge – including one who is on stand-by twenty-four hours a day, 365 days a year just for this purpose – can order an EPO if the officer is able to articulate facts that show the child is in imminent danger of being taken by a parent or relative from the local vicinity.

These facts must include an allegation of a recent threat made by you (either to abscond with the minor or to commit an act of violence against the child or co-parent), or an act of domestic violence you committed against either the other parent or the child him/herself.

State Statutes Regarding Domestic Violence – Child Abduction

California Penal Code section 278

Under section 278, if you “maliciously” and intentionally take, keep or conceal any child – without your having legal custody of him or her at the time of the abduction – from that child’s parent or legal custodian, then you can be prosecuted for either a misdemeanor or, far more likely, a felony.

California Penal Code section 278.5

Similarly, under section 278.5, if you deprive that same child’s parent or legal guardian from his or her custody or visitation rights, then you will also probably be charged with a felony.

Convictions and Sentencing Terms for Domestic Violence – Child Abduction

California Penal Code section 278

If you are convicted of intentionally and maliciously kidnapping your own child, then you will be punished as follows:

1. a state prison term of two, three or four years (felony); or
2. up to one year in a county jail (felony or misdemeanor);
3. a maximum $10,000 fine (either); and
4. restitution for recovery costs (either).

(For a detailed discussion of restitution to be paid to the District Attorney’s Office, see California Family Code section 3134)

California Penal Code section 278.5

If you are convicted of depriving a parent or legal guardian of his or her legal custody or visitation rights to their child (which could also be your own son or daughter), then you will receive the following possible sentences for the crime of Child Custody Deprivation:

1. a prison term or 16 months, two years or three years (felony); or
2. a fine up to $10,000 (misdemeanor or felony); or
3. both imprisonment and fine (either); and
4. restitution for recovery costs (either).

Sentencing Enhancements for Child Abduction Convictions

In addition, if you are convicted under sections 278 or 278.5, you could face sentencing enhancements if any of the following aggravating circumstances were present (pursuant to California Penal Code section 278.6):

1. you exposed the child to a significant risk of injury or sickness;
2. you inflicted or threatened to inflict injury on his or her parent or legal guardian, or on the child him/herself at or during the time of the abduction;
3. you actually injured the child during the abduction;
4. you abandoned the child after the abduction;
5. you took or held the child outside of the country;
6. you previously abducted or threatened to abduct him or her;
7. you changed the child’s appearance or name;
8. you denied him or her education during the time you had him or her;
9. you abducted the child for a significant period of time; and/or
10. the child was very young at the time of the adbuction.

Sentencing Mitigation for Child Abduction Convictions

Conversely, your sentence will be mitigated if you:

1. did not injure the child and returned him or her before either an arrest warrant was issued for you or before you were actually arrested (whichever came first); and/or
2. you informed the authorities of the location of the child and otherwise assisted them in returning him or her safely.

Defenses to Domestic Violence – Child Abduction

You actually did have legal custody of the child at the time of the incident

Although this is not necessarily a complete defense to an abduction charge (though it sometimes is), it certainly goes a long way towards establishing your lack of criminal culpability.

Conversely, if the other parent or legal guardian lacked legal custody at the time, then you should be able to avoid a conviction. See CALCRIM number 1250 (“Child Abduction: No Right to Custody”).

The child was an adult at the time of the incident

If the “child” was actually of legal age, then you cannot be charged with child abduction. See CALCRIM number 1251 (“Child Abduction: By Depriving Right to Custody or Visitation”).

You never intended to hide the minor from his or her parent or legal guardian

So, for example, if there was a miscommunication between you and your co-parent/ex-spouse, and you mistakenly took the child away for the weekend thinking it was your turn to have temporary custody of him or her, then you did not have the malicious mindset required to secure a conviction.

Or perhaps for whatever reason you did not receive a just-issued court order terminating your custody rights – this, too, would negate any bad intentions on your part.

The other parent or guardian actually abandoned the minor

If that person relinquished his or her custodial rights – for example, by literally deserting the minor with the intent to have no further contact with him or her, or by leaving him or her with another adult for at least six months with no communication – then, as a matter of California law, you should not be criminally culpable for the minor’s abduction.

You reasonably believed you were protecting the child when you took him or her

Under California Penal Code section 278.7, you would have an absolute defense if you took the child in good faith if you reasonably believed – i.e., the belief that an objective person would have as opposed to your own subjective belief – that if you left him or her in the care of his or her parent or legal guardian,the child would have suffered immediate physical or mental harm.

Notably, there are several procedural requirements you must follow in order to perfect this defense:

1. you must report the “abduction” to the local DA’s Office as soon as reasonably possible (typically within ten days);
2. you must commence custody proceedings in a family law court as soon as reasonably possible (typically within four weeks); and
3. you must provide the DA’s Office with the child’s updated contact information.

See also CALCRIM number 1252 (“Defense to Child Abduction: Protection From Immediate Injury”).

For purposes of this particular statute, “mental harm” is presumed to have occurred if the other parent committed any act of domestic violence against you.

Example of a successful defense where defendant took his children to protect them from their mother

On or about December 2, 1985, Ron Whitelaw was found by a San Fernando jury to be not guilty of two counts of felony child abduction for allegedly absconding with his two daughters (who were not yet seven and four years old, respectively) in spring 1978. At that time, Whitelaw had picked up the girls for the weekend as part of his legal custody arrangement with his ex-wife Faith Canutt.

Whitelaw, with help from his new spouse, admittedly took the girls to live in a remote town in southern Oregon (which raises the question of why he wasn’t tried in federal court as he crossed state lines) until he was arrested five months before trial. (A local resident had phoned the police after seeing Whitelaw featured on an America’s Most Wanted-type show.)

Whitelaw’s defense was simple but convincing: he claimed he had taken the girls only after Canutt had threatened to kill him and the girls because “demons” had ordered her to do so – an allegation corroborated by several impartial family friends.

Immediately following the trial, Whitelaw’s attorney polled the jurors, who explained that they were swayed by the corroborative testimony of those friends, as well as the fact that prosecutors failed to put on any evidence – aside from Canutt’s highly suspect claims to the contrary – that Whitehall did not take the girls for any other reason.

Notwithstanding the unanimous verdict (twelve-to-zero in favor of acquittal), Canutt obtained a civil judgment against Whitelaw for almost two million dollars – the first such judgment of its kind in an American court. See latimes.com.

Examples of Domestic Violence – Child Abduction – Felony Charges

Parents sentenced to prison for abducting their four kids and fleeing to Mexico

In March 2014, husband and wife Enrique Felix and Rose Chairez accepted no-contest plea from the LA County DA’s Office – specifically, prosecutors from the Child Abduction Unit – for numerous felony charges. These included Child Abduction (Penal Code section 278) and Kidnapping (California Penal Code section 207) as they admitted to taking away their four kids (who ranged in age from one to eight years old) from the wife’s own mother and absconding to Mexico with them.

Nine months later, the convicted couple received their sentencing terms – almost a dozen years in a California penitentiary for Felix and almost half-a-dozen for Chairez.

Felix’s sentence was enhanced because of a prior felony conviction for making a terrorist threat (the specific crime is entitled Making a Criminal Threat under California Penal Code section 422). Fortunately for Chairez, her term was suspended, though she was ordered to complete an equivalent period of formal probation, and to stay away from the kids for that same length of time. Although the grandmother retained sole custody of them, the siblings would continue to be supervised by DCFS. See da.lacounty.gov.

Mother gets five years’ formal probation for Child Custody Deprivation

On June 3, 2014, Ms. Sri Johnson accepted a guilty plea for Child Custody Deprivation (Penal Code section 278.5) after she was prosecuted by the LA County DA’s Office. During the same hearing, she received almost six months’ incarceration at the DTLA women’s jail, sixty months of probation (which included fifty-two weeks of psychotherapy), and a sixty-month stay-away order.

As she admitted to the judge, three months earlier, Johnson had abducted – without having legal custody – her adolescent boy (who was not yet thirteen) from his junior high school and fled to north San Diego County. Less than a week later, she was arrested by U.S. Marshals and eventually transported back to Long Beach where the case was filed. See da.lacounty.gov.

Father pleads guilty to child abduction after fleeing with two kids to Tennessee

According to Ventura County prosecutors, in 1996, shortly following a bitter divorce proceeding where a family law judge ordered him to pay almost five thousand dollars a month in child support, local resident Pat Carty grabbed his two kids – then ages six and two, respectively – and absconded to Tennessee.

Less than a year later, in late 1996, Carty was traced to his place of work and arrested. (The kids were healthy and taken back to their mom.) Carty quickly made a deal less than a month later. Specifically, in early January 1997, he pled guilty to child abduction, and was expected to receive twelve months in the county jail at his sentencing hearing scheduled for that Valentine’s Day. Had he gone to trial and been convicted by a jury, he would have faced almost five years in a California penitentiary.

Interestingly, as his attorney explained to the judge at the plea hearing, no one in the county had ever been sent to a penal institution for this crime. As mitigation to receive a hoped-for/anticipated lenient sentence, his attorney pointed out that while he was out of state, he kept in touch with both the DA’s Office and police to let them know the kids were doing well.

See latimes.com.