Penal Code 278.5 PC defines the California crime of abducting a child in violation of a custody order or visitation right.1
You violate this law when you take or conceal a child and maliciously deprive another person of his/her right to custody...or right to visit...that child. This offense may be charged as either a misdemeanor or a felony, in the latter case subjecting you to up to three years in the state prison. 2
Fortunately, there are a variety of legal defenses that are available to fight this serious charge.
In this article, our California criminal defense attorneys3 offer a comprehensive overview of Penal Code 278.5 PC by addressing the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on Penal Code 278 PC Child Abduction; Kidnapping; Wobblers; Misdemeanors; Felonies; Legal Defenses; and Sentencing Hearings.
Penal Code 278.5 PC prohibits abducting a child in violation of a custody order or visitation right.4 Sometimes referred to as "child detention", you violate this law when you
- maliciously take, entice away, keep, withhold or conceal,
- a child,
- from one of the child's lawful custodians...that is, someone who retains physical care, custody and control of the child...or from someone who, at the time of your actions, had a right of visitation with the child.5
Although this offense is closely related to Penal Code 278 PC California's child abduction law, the two differ in three significant ways:
- PC 278.5 applies to anyone...although it was enacted primarily to address abduction by parents...whereas 278 PC only applies to people who do not have a right of custody over the child,
- you can violate PC 278.5 by interfering with another person's right of visitation, not just their right of custody, and
- "child detention" is a slightly less serious offense than child abduction and...as a result...is only punishable by a maximum of three years in the state prison instead of the four years you face for a PC 278 conviction.6
Examples of situations that violate Penal Code 278.5 PC
- Upset with his wife about a pending divorce and custody battle, a father takes his daughter from her mother and moves to another state. He doesn't tell the mother where they are going.
- Angry with her ex-husband, a woman takes her son for a mini-vacation when his father is supposed to begin his court-approved weekend visit. The woman did not ask the father's permission nor tell him that they were leaving.
- The child's father...who picked up his son according to his visitation schedule...decides to keep his son past his allotted time, without asking the child's mother if that was okay and without telling her he was doing so.
There are a variety of legal defenses that are applicable to a Penal 278.5 PC allegation that a skilled California criminal defense lawyer could present on your behalf. The following are some of the most common.
If the person from whom you take the child is not a lawful custodian...or entitled to a right to visitation...then you don't violate this law.7
If, for example, you have a permanent or even a temporary sole custody order over your child...and move your residence or prevent his/her other parent from seeing the child during the period while that order is in effect, you are not guilty of this offense...that is, as long as you act in accordance with that order.
However, if you are not the child's parent or guardian...and have no right of custody over the child...you could be charged with violating Penal Code 278 PC California's child abduction law and/or California's kidnapping law.
If you have a right of custody over the child...and only take the child because you feared that, if left with the other custodian he/she would suffer immediate bodily injury or emotional harm...you are excused from criminal liability.
However, in order to exercise this defense, you must contact the proper authorities within a reasonable time (that is, at least within ten days) to tell them your whereabouts.8
Similarly, if you take the child without malice (that is, with the intent to annoy or injure another person or to commit a wrongful act9)...perhaps because you honestly believe he/she is better off with you or because you are under the mistaken belief that you are free to do so...this could potentially serve as a legal defense.
And, because this offense deals with custody issues...which are often tied to heated, emotional battles between parents...it is not uncommon for one parent falsely to accuse the other of this sort of crime.
But as Rancho Cucamonga criminal defense attorney Michael Scafiddi10 explains, "Our firm is comprised of former police investigators and prosecutors so we know the most effective strategies for uncovering the truth and establishing your innocence."
Penal Code 278.5 PC is what's known as a wobbler. A "wobbler" is a charge that the prosecutor may file as either a misdemeanor or a felony, depending on
- the facts of the case, and
- your criminal history.
If you are convicted of the misdemeanor, you face up to one year in a county jail and a maximum $1,000 fine. If you are convicted of the felony, you face 16 months or two or three years in the California state prison and a maximum $10,000 fine.
You will also be responsible for reimbursing the local district attorney and/or the victim's family for any reasonable costs they incurred trying to locate and return the child.11
And anytime someone is convicted of this offense...or of Penal Code 278 California's child abduction law ...California law requires both the prosecution and defense to present facts at the sentencing hearing that will help the judge determine the appropriate sentence.
The defense presents mitigating factors, which are facts that justify a lighter sentence. If, for example, you
- returned the child unharmed,
- returned the child before you were arrested or otherwise "discovered", or
- provided information that helped lead to the child's return,
the judge might consider imposing a sentence that is close to the statutory minimum. However, if the prosecutor establishes that you
- exposed the child to a substantial risk or physical injury or illness,
- inflicted or threatened to inflict physical harm on the child or anyone else who stood in your way,
- substantially altered the appearance or name of the child, or
- never returned the child,
you will likely face a sentence that is closer to the statutory maximum.12
This is just one reason why it is so important to have an attorney who is familiar with these types of cases. Only an experienced lawyer will know the most effective arguments to present in order to ensure you receive the most lenient sentence possible.
Call us for help...
If you or loved one is charged with Penal Code 278.5 PC child abduction and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada's kidnapping laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.13
1 California Penal Code 278.5 -- Deprivation of custody of child or right to visitation; punishment. ("(a) Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, a fine not exceeding ten thousand dollars ($10, 000), or both that fine and imprisonment. (b) Nothing contained in this section limits the court's contempt power. (c) A custody order obtained after the taking, enticing away, keeping, withholding, or concealing of a child does not constitute a defense to a crime charged under this section.")
2 See same.
3 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
4 See California Penal Code 278.5 -- Deprivation of custody of child or right to visitation; punishment, endnote 1, above.
5 California Jury Instructions, Criminal "CALJIC" 9.71 - Child Abduction-Violation of Custody or Visitation Right. ("Defendant is accused [in Count[s] ] of having violated section 278.5 of the Penal Code, a crime.] Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right of visitation, is guilty of a violation of Penal Code section 278.5, a crime. In order to prove this crime, each of the following elements must be proved: 1 [ , was a lawful custodian of a child;] [ had a right of visitation with a child;] 2 The [defendant] [__________] took, enticed away, kept, withheld, or concealed that child from the [lawful custodian] [person with a right of visitation]; 3 The person who took, enticed away, kept, withheld, or concealed the child thereby maliciously deprived a [lawful custodian of a right to custody] [person of a right of visitation].")
6 Penal Code 278 PC - California's child abduction law. ("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 shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.")
7 Cline v. Superior Court (1982) 135 Cal.App.3d 943, 945. ("At the time of the alleged acts, the only arguably valid custody order FN1 gave petitioner custody of the child who is the alleged victim. Thus, neither the kidnapping nor the child stealing allegation can be sustained.")
8 California Penal Code 278.7 -- Exception; belief of bodily injury or emotional harm; report by person taking or concealing child; confidentiality. ("(a) [Penal Code] Section 278.5 does not apply to a person with a right to custody of a child who, with a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm, takes, entices away, keeps, withholds, or conceals that child. (b) Section 278.5 [California's law against child abduction in violation of a custody or visitation right] does not apply to a person with a right to custody of a child who has been a victim of domestic violence who, with a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm, takes, entices away, keeps, withholds, or conceals that child. "Emotional harm" includes having a parent who has committed domestic violence against the parent who is taking, enticing away, keeping, withholding, or concealing the child. (c) The person who takes, entices away, keeps, withholds, or conceals a child shall do all of the following: (1) Within a reasonable time from the taking, enticing away, keeping, withholding, or concealing, make a report to the office of the district attorney of the county where the child resided before the action. The report shall include the name of the person, the current address and telephone number of the child and the person, and the reasons the child was taken, enticed away, kept, withheld, or concealed. (2) Within a reasonable time from the taking, enticing away, keeping, withholding, or concealing, commence a custody proceeding in a court of competent jurisdiction consistent with the federal Parental Kidnapping Prevention Act (Section 1738A, Title 28, United States Code) or the Uniform Child Custody Jurisdiction Act (Part 3 (commencing with Section 3400) of Division 8 of the Family Code). (3) Inform the district attorney's office of any change of address or telephone number of the person and the child. (d) For the purposes of this article, a reasonable time within which to make a report to the district attorney's office is at least 10 days and a reasonable time to commence a custody proceeding is at least 30 days. This section shall not preclude a person from making a report to the district attorney's office or commencing a custody proceeding earlier than those specified times. (e) The address and telephone number of the person and the child provided pursuant to this section shall remain confidential unless released pursuant to state law or by a court order that contains appropriate safeguards to ensure the safety of the person and the child.")
9 CALJIC 9.72 - Definitions used in Penal Code 278 PC California's child abduction law. ("As used in the crime of child abduction: "Child" means a person under the age of 18 years. "Maliciously" means with intent to vex, annoy, or injure another person, or to do a wrongful act. ["Fraudulently" includes all surprise, trick, cunning, and unfair ways by which one person deceives or attempts to deceive another.] "Keeps" or "withholds" means retains physical possession of a child whether or not the child resists or objects. "To entice" means to allure, to attract, to draw on, or to lead astray by exciting hope or desire. It does not necessarily include any domination over the child's will. "Detain" means to delay, to hinder, or to retard. It does not necessarily include force or menace. "Lawful custodian" means a person, guardian, or public agency having a right to custody of a child. [A "right of custody" means the right to physical care, custody, and control of a child pursuant to a custody order or operation of law. [In the absence of a court order to the contrary, a parent loses his or her right of custody of the child to the other parent if the parent having the right to custody is dead, is unable or refuses to take the custody, or has abandoned his or her family.]] [A natural parent whose parental rights have been terminated by court order is no longer a lawful custodian and no longer has a right to physical custody.] ["Visitation" means the time for access to the child allotted to any person by court order.] ["Abduct" means take, entice away, keep, withhold, or conceal.] [["Abandonment" is defined generally as an actual desertion, accompanied with an intention to entirely sever, so far as it is possible to do so, the parental relation and throw off all obligations growing out of that relationship.] [A child is also abandoned by a parent, when the child has been left by both parents or the sole parent in the care and custody of another for a period of six months or by one parent in the care and custody of the other parent for a period of one year without any provision for the child's support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child.] [If you are satisfied beyond a reasonable doubt that a parent failed to provide identification, failed to provide support, or failed to communicate, other than by token efforts to support or communicate with the child, you may, but are not required to, infer that the parent intended to abandon the child.]]")
10 Rancho Cucamonga criminal defense attorney Michael Scafiddi uses his former experience as an Ontario Police Officer to represent clients throughout the Inland Empire including San Bernardino, Riverside, Rancho Cucamonga, Hemet, Banning, Fontana, Joshua Tree, Barstow, Palm Springs and Victorville.
11 See Penal Code 278.6, section "c", endnote 12, below.
12 California Penal Code 278.6 PC -- Sentencing; relevant factors and circumstances; aggravation; mitigation; expenses and costs in recovering child. ("(a) At the sentencing hearing following a conviction for a violation of Section 278 or 278.5 [California's law against child abduction in violation of a custody or visitation right], or both, the court shall consider any relevant factors and circumstances in aggravation, including, but not limited to, all of the following: (1) The child was exposed to a substantial risk of physical injury or illness. (2) The defendant 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. (3) The defendant harmed or abandoned the child during the abduction. (4) The child was taken, enticed away, kept, withheld, or concealed outside the United States. (5) The child has not been returned to the lawful custodian. (6) The defendant previously abducted or threatened to abduct the child. (7) The defendant substantially altered the appearance or the name of the child. (8) The defendant denied the child appropriate education during the abduction. (9) The length of the abduction. (10) The age of the child. (b) At the sentencing hearing following a conviction for a violation of Section 278 or 278.5, or both, the court shall consider any relevant factors and circumstances in mitigation, including, but not limited to, both of the following: (1) The defendant returned the child unharmed and prior to arrest or issuance of a warrant for arrest, whichever is first. (2) The defendant provided information and assistance leading to the child's safe return. (c) In addition to any other penalties provided for a violation of Section 278 or 278.5 [California's law against child abduction in violation of a custody or visitation right], a court shall order the defendant to pay restitution to the district attorney for any costs incurred in locating and returning the child as provided in Section 3134 of the Family Code, and to the victim for those expenses and costs reasonably incurred by, or on behalf of, the victim in locating and recovering the child. An award made pursuant to this section shall constitute a final judgment and shall be enforceable as such.")
13 Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's kidnapping laws or child abduction laws. Our Nevada law offices are located in Reno and Las Vegas.