This week’s story is about a Lomita family and the child caught in the middle. The boy was in the legal guardianship of his paternal grandmother, which his mother apparently doesn’t approve of. His biological mother, with the help of her parents, abducted the boy from his stroller. This happened while the boy’s relative was pushing the stroller he was in, down the street. Now, the biological mother and her parents didn’t just run up and grab the boy. They verbally and physically confronted the relative before leaving with the boy.
Deputies were able to contact the biological mother and her parents, and convince them to return the boy. Of course, they were then arrested and released on bond. They will likely be facing charges of Penal Code 278, California’s child abduction law. The child abduction law prohibits people who do not have legal custody over a child from maliciously trying to keep a child away from his/her legal parent/guardian. Since the biological mother and her parents did not have legal custody of the child, they can be charged with child abduction.
Child abduction is just a specially recognized form of kidnapping. California’s kidnapping laws, found under Penal Code 207, 208, 209 and 209.5 PC, are violated when the defendant moves another person a substantial distance without that person’s consent by using force or fear. “Force or fear” means inflicting harm or threatening too. “Simple” kidnapping is a felony, subjecting you to up to 8 years in the California state prison.
The biological mother and her parents are going to rely on the many defenses available to kidnapping. One defense is that the alleged victim consented to being moved. This is an obvious defense because a child will consent to going anywhere with his mother. The problem here is we do not know how old the child is, and typically children are deemed incapable of giving legal consent. They may also allege that they have the right to travel with the child. This would only be the case if the child custody order included such a travel provision. Otherwise, that defense may be a loser.
The biological mother and her parents could also allege that the prosecution will not be able to meet all the elements of kidnapping, especially as to force or fear. This goes back to a child wanting to go with his mother, no force or fear needed. A problem with this defense is that, when kidnapping a child, the only amount of physical force that is required is enough to take and carry the child away. Another problem they have is that they verbally and physically confronted the relative who had the child. This could be interpreted by the prosecution and a jury as being enough force or fear (threats of harm) to meet the elements of kidnapping.
The parents of the biological mother could have the best defense by asserting they were not the kidnapers but were merely present. The key here is where they were when the biological mother took the boy. Were they standing nearby, or just sitting in the car? If they were not aware of the biological mother’s plans, and they were just in the wrong place at the wrong time, then they should be acquitted. This could explain why they returned the boy, because they never intended to take him.
The last applicable defense could be a stretch to apply here, but there is a statutory defense where a defendant would not be guilty of kidnapping if the defendant took the child under 14 years of age to protect the child from danger of imminent harm. The biological mother and her parents would have to show that the relative pushing the boy in the stroller posed imminent danger to the boy. Without knowing more about the situation, all I can say is this will be tough to win.
Child abduction is a wobbler, which means it can be charged as either a misdemeanor or felony. As a felony, it subjects the defendant to a maximum four-year state prison sentence and a maximum $10,000 fine. If convicted of child abduction and kidnapping, the judge could order defendants to serve this sentence in addition and consecutive to the time imposed for the kidnapping charge. Simple kidnapping is a felony, punishable by three, five or eight years in the California state prison, and a maximum $10,000 fine.
Lastly, Simple kidnapping qualifies as both a serious felony and a violent felony. This means a conviction for violating California’s kidnapping law counts as a “strike” for purposes of California’s three strikes law. If defendants are subsequently charged with any felony – and have a prior “strike” on their record – they will be referred to as a “second striker,” and the sentence will be twice the term otherwise required by law. If charged with a third felony – and there are two prior strikes – defendants will be referred to as a “third striker” and will serve a mandatory minimum sentence of 25 years-to-life in the state prison. That is a lot to face, and a lot to lose to get your biological child back.
Read the news story here.