Unless you prove your good intentions, taking or hiding a family member from their legal custodian is considered a crime in California. Even in joint-custody situations, you can be incriminated for maliciously denying the other parent their visitation or custody rights, according to the California Penal Code Section 278.5.

If they are adults, using intimidation, force, or coercion to take them against their will is considered kidnapping. In such cases, the accused may need an Orange County criminal defense law firm to help them avoid serious criminal penalties. The prosecutor, however, will need to prove that the captive family member was not allowed to leave.

Is Kidnapping Similar to Abduction?

Kidnapping and abduction are distinct crimes that attract different penalties. Abduction in California can be treated as a misdemeanor or as a felony. As a misdemeanor, an abduction conviction attracts a fine of $1,000 and a jail term of up to 364 days. If charged as a felony, the convict may have to pay a fine of $10,000 and go to prison for two, three, or four years.

On the other hand, kidnapping involves the use of threats or force and is considered a more serious crime. And if the minor is younger than 14 years, the penalties may be even higher. The fine is usually $10,000, and the jail term can be three, five, or eight years.

What Does the Prosecution Need to Prove Parental Kidnapping?

Even if you are arrested and charged, you cannot be convicted unless the prosecution proves that you indeed kidnapped the family member. A knowledgeable criminal defense lawyer in Orange County can formulate an excellent defense to prove your innocence in court, but here are the elements that come to play:

  • If the defendant had an intention of concealing and detaining the minor away from their legal custodian
  • If you took the minor at a time when you didn’t have custody rights
  • The family member was below 18 years, thus unable legally consent to go with you
  • If you concealed, withheld, kept, enticed away, or took the child out of malice

What If I Have Pure Intentions for Taking a Child Away?

You cannot be convicted if you acted out of a reasonable belief that the legal custodian or the parent that had custody rights at the time could inflict immediate emotional harm or bodily injuries to the minor. However, it is ideal to do the following after taking the child;

  • Report the case to the District Attorney’s (DA) Office within a reasonable time
  • Leave up-to-date contact information of the child
  • Apply for the child’s custody that’s consistent with the Parental Kidnapping Prevention Act and Uniform Child Custody Jurisdiction Act

What Informs the Intensity of a Kidnapping Penalty?

If one is found guilty of kidnapping beyond a reasonable doubt, the judge can give the minimum or the highest sentence, depending on various factors surrounding the kidnapping incident. Basically, the more the family member suffered, the higher the sentencing.

Here is what the judge might consider:

  • Any attempts to hide the child’s identity
  • The duration of the kidnapping
  • The minor’s age
  • If the child had access to education while they were kidnapped
  • Whether the child was taken outside the U.S.
  • Whether the other parent or the child received threats during or before the kidnapping
  • If there was an actual or potential risk for illness or physical injury on the minor

Will My Custodial Rights be Impacted if I’m Charged and Convicted?

If you are convicted for the crime of kidnapping, you will probably be in contempt of a custodial court order. Consequently, the family court may have to revoke or change your visitation or custody rights. Notably, the child’s best interest informs these decisions.

What Are the Possible Kidnapping Defenses?

A skilled kidnapping defense attorney in Laguna Hills, CA, can evaluate your case and develop the right legal defense. Some of the best arguments against kidnapping charges include:

  • Consent: Involuntary seizure and detention are the main aspects of kidnapping. But if the victim can admit or if there is proof that they consented to go with the accused, the defendant may not be convicted for kidnapping. Consent can be a good defense, especially if the parties are family members.
  • Mistaken Identity: You can argue that your identity was mistaken for another person.
  • Insufficient Evidence: If there are conflicting testimonies or false allegations, you can argue that the evidence is not enough to prove that the kidnapping claims are true.
  • No Custody Order: You can also argue that there was no custody order in place when you took the child. One parent cannot accuse the other of parental kidnapping without a custody order that establishes their custodial rights.
  • Good Faith: You had sufficient reasons to believe that the minor was in danger.
  • Intent: You can prove to the court that you had no malicious intent for taking away the family member.

What if I Move to Another State?

All states are required to recognize and enforce each other’s visitation and custodial orders. So, if you move to another state and seek a more favorable order, the minor’s home state’s orders must be considered first.

What if I Moved to Another State to Avoid Domestic Violence?

You can’t be convicted for kidnapping if you moved with a minor to another state to protect yourself or the children from domestic violence. However, it is crucial to request a custody order as soon as you get to the other state.

A Qualified Legal Aid to Guide and Defend You

Kidnapping accusations involving family members can ruin your future relationships with them and impact your life negatively. If you are convicted rightfully or wrongfully, you may be required to pay hefty fines and serve long periods in prison, far from the family you love.

However, with a good defense, you can be sure that the chances of getting a ‘guilty’ verdict are very slim. A knowledgeable Laguna Hills criminal defense attorney understands both federal and California State laws on kidnapping, which are subject to amendments. If you have been accused of kidnapping and related crimes, call (949) 305-7995 for immediate legal assistance.