Penal Code 278 PC defines the California crime of "child abduction." The offense is also commonly known as "child stealing" or "detainment or concealment of a child from a legal custodian."
You violate this law if you maliciously take a child away from his/her legal guardian when you have no right of custody over the child.1 You have a "right of custody" over a child...that is, physical care, custody and control of a child...if you
- are the parent of the child and have not had your rights restricted or revoked by the court, or
- have received a court custody order.2
"Child-stealing" is very closely related to Penal Code 207 PC California's kidnapping law3. However, kidnapping is considered a crime against the kidnapped person. Whereas child abduction or child stealing is also considered a crime against the parent of the abducted child.4
Child abduction doesn't require that you move or transport the child, only that you intend to detain or conceal the child from his/her legal custodian.
Penal Code 278 PC is a wobbler, which means that prosecutors may charge the offense as either a misdemeanor or a felony. If convicted as a misdemeanor, you face up to one year in a county jail and a maximum $1,000 fine. If convicted as a
felony, you face up to four years in the California state prison and a maximum $10,000 fine.5 You will also be required to reimburse the victim and/or prosecuting agency for any reasonable costs they incurred for attempting to locate and return the child.6
Fortunately, there are a variety of legal defenses to a child stealing charge that your California criminal defense lawyer could present on your behalf. Some of the most common include (but are not limited to):
- you had legal custody of the child and are therefore exempt from prosecution under this law,
- you didn't maliciously take the child but rather had good intentions for your actions,
- you were falsely accused or wrongfully arrested based on mistaken identity, and
- there is insufficient evidence to convict you of the crime.
In this article, our California criminal defense attorneys7 will discuss the following:
- 1. California's Child Abduction Law
- 2. Legal Defenses
- 2.1. You had custody of the child
- 2.2. The person from whom you took the child was not a
- 2.3. You didn't maliciously take the child
- 2.4. False accusations / mistaken identity
- 2.5. Insufficient evidence
- 3. Penalties, Punishment, and Sentencing
- 4. Related Offenses
Penal Code 278 PC prohibits stealing a child. More commonly referred to as child abduction, you violate this law when you take a child away from his/her parent or legal guardian.8
The purpose of this law is to protect parents against the anxiety and grief that they would experience if someone were to take their children without their permission. As a result, child stealing is considered a crime against the parent, not against the child.9
In order to convict you of this offense, the prosecutor must prove the following facts...otherwise known as "elements" of the offense: That
- you maliciously took, enticed away, kept, withheld or concealed a child (that is, a person under 18),
- you did not have a right of custody over the child, and
- you specifically intended to detain or conceal the child from his/her lawful custodian.10
Let's take a closer look at some of these terms to gain a better understanding of their legal meanings.
When you act maliciously, it means that you commit an act with the intent to annoy or injure another person or that you intend to commit a wrongful act.11
Entices, keeps or withholds
If you "entice" a child away, you allure, attract or lead the child away by generating hope or desire in the child. It does not necessarily mean that you force the child into going with you.12
"Keeps" or "withholds" means to retain physical possession of a child, regardless of whether or not the child resists or objects.13
If you detain the child, it means that you delay or prevent the child's return to his/her parent or guardian.14
It is important to understand that whether you actually detain or conceal the child is irrelevant. All that is required under this law is that you intended to do so.15
Right of custody
If you have a "right of custody", it means you have the right of physical care, custody and control of a child because you
- have a court custody order, or
- are the parent of the child and have not had your custody rights restricted or revoked by the court.16
A "lawful custodian" is a person, guardian or public agency who has a right to custody of a child. This includes a parent who retains custody of a child or any other appointed legal guardian who enjoys this same right.17
Here are a few examples from actual child abduction cases.
People v. Hyatt
The defendant and his wife obtained a divorce. The judge granted custody of their two children to the mother. The defendant was given visitation rights on the first Sunday of every month from 10:00 am to 5:00 pm. On his first visit, the defendant picked up the children and flew them from California to Kansas where they remained for over two years. The defendant changed his name and enrolled the older child in school. Two days before he left California, the defendant had the gas company turn off the gas in his apartment.
The court held that "the evidence supports the conclusion that when the defendant took the children on the Sunday in question he used the visitation privilege given him to obtain their physical custody for the purpose of taking them from the custody of their mother in whose charge they had been placed by order of the court, and not for the purpose of visiting with them as permitted by that order. The taking contemplated by the statute is a taking with the intent to detain and conceal the child from the person having lawful charge of such child."18
People v. Moore
The defendant received permission from the mother of a 12-year-old boy for him and his wife to take the child to their ranch for the summer. The mother agreed on the condition that the boy must return home before the beginning of school. The defendant instead took the child to Oregon and ultimately to Arizona which is where the mother found her son the following February. The mother maintained she never gave the defendant permission to take her son anywhere except the ranch.
The defendant claimed that he took the boy back to his mother. But they were unable to locate her and that...in her absence...he continued to care for the child and did not maliciously, forcibly or fraudulently take the child with the intent to detain or conceal him.
Yet the court held that the evidence supported the Penal Code 278 conviction based on the facts that
- the defendant made false statements to the boy and his mother regarding having a wife and a ranch, and
- he took the child to Oregon and Arizona without the consent or knowledge of the mother.19
Wilborn v. Superior Court of Humboldt County
In this case, the mother of a four-month-old separated from the child's father. The mother took the child, and they moved into the maternal grandfather's home. One night when the mother wasn't there, the child's father and a woman went to the home where the woman pretended to need help with a flat tire. While she was in the home, the child's father went inside, jumped on the grandfather and held him down while the woman took the child. The woman, child and father then left.
The court held that because the child's father shared lawful custody of the child, the father was not liable under California child abduction law. The woman who was with him, however, was not exempt from prosecution, and she was properly convicted of the offense.20
There are a number of legal defenses that are applicable to Penal Code 278 child stealing. These include (but are not limited to) the following.
If you are a lawful custodian of the child in question, you are not guilty of this offense. Let's say, for example, that you live with your wife and your two children. You and your wife have a fight, so you put the kids in the car and just take off. You decide to go stay with your sister for a few days but don't tell your wife where you all are.
Under these circumstances, you, as the father of the children...and one of their legal custodians...has the right to travel with your kids. And you maintain this right...even without consent from their other parent...as long as you are not taking the children for an illegal purpose or with an illegal intent.21
You may, however, face charges for another offense, such as Penal Code 272 PC California's "contributing to the delinquency of a minor" law (discussed in more detail in Section 4. Related Offenses) if, for example, you
- inflict serious physical harm on the child,
- subject the child to severe emotional abuse/damage, and/or
- neglect to provide food, clothing, shelter, or...in certain cases, medical care...for the child.22
If you take a child and attempt to detain him/her from someone who isn't a lawful custodian, you don't violate Penal Code 278. You may, however, face charges for kidnapping (a charge discussed below in Section 4. Related Offenses), depending on the exact circumstances of your offense.
People v. Bormann illustrates this defense. In this case, the defendant, the child's father, took his daughter from a family with whom she was living in Mexico. This family had received the child from a woman who the child referred to as "grandma" who had received the child from her mother and the defendant who were the child's biological parents.
The court held that the defendant could not be convicted of child stealing since the person from whom the defendant took the child was not someone who had lawful charge of the child.23
Before the prosecutor can obtain a conviction for child abduction, he/she must prove each and every element of the offense. The first element contains a provision that the accused "maliciously" took the child. If you can demonstrate that you did not act maliciously when you took the child, you should not be convicted of this offense.
This means that if, for example, you took the child because you believed he/she would face harm if left with his/her custodian, you should be acquitted of this offense. This defense is similar to that of self-defense / defense of others.
But in order to prevail on this defense, you must prove that you had good intentions. If you took the child in order to "annoy or injure another person, or intending to commit a wrongful act", then you did so maliciously.
And this defense would not work if you indefinitely kept the child and this was only discovered because you were "caught". Taking the law into your own hands isn't allowed. This defense would work best if, for example, you called the police or a social services agency after you took the child to report the situation.
If you are completely innocent of the charge, that is, of course, the best defense. This may be the case if, for example, you were falsely accused or wrongfully arrested based on a situation involving mistaken identity.
False accusations are most commonly seen in connection with child stealing in cases involving custody disputes and/or divorce proceedings. For example, a vindictive parent could try to frame you to make it look as if you are guilty of child abduction when, in fact, you had permission to take the child.
With respect to mistaken identity, you may happen to match the physical description of the offender. Or, perhaps your vehicle matches the description of that posted in an amber alert.
There are a variety of reasons why you could be falsely accused or wrongfully arrested for this offense. But as Orange County criminal defense attorney John Murray24 explains, "Our firm's extensive experience as former police investigators and prosecutors provides us with the necessary resources and knowledge to conduct a thorough investigation and help clear your name."
It bears repeating that the prosecutor must prove each and every element of the offense "beyond a reasonable doubt"...that is, to a moral certainty. If he/she cannot do that, you are entitled to an acquittal.
Sometimes even though the case points to your guilt, the police or prosecutor simply don't have enough information to prove the case beyond a reasonable doubt. When this is the case, your California criminal defense attorney will argue that there is insufficient evidence to convict you and that...as a result...you should be acquitted of the offense.
∗It is important to understand that it doesn't matter whether the child goes with you willingly...the child's consent is not a defense to child stealing. This is because this offense is committed against the parent, not the child.25
Penal Code 278 PC is a wobbler, which means that prosecutors may charge child abduction as either a misdemeanor or a felony, depending on
- the circumstances of the offense, 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 either (a) probation and up to one year of county jail, or (b) two, three or four years in the California state prison and a maximum $10,000 fine. ∗If you abduct a child in violation of a custody order...Penal Code 278.5 PC (discussed below in Section 4. Related Offenses)...the penalties are similar, except that the felony charge subjects you to 16 months or two or three years in prison instead of two, three or four years.26
In addition to these penalties, the defendant must pay restitution to the prosecuting agency and/or the victim...or to anyone acting on the victim's behalf...for any costs reasonably incurred in locating and returning the child to the victim.27
At the sentencing hearing, the prosecutor and defense attorney will present aggravating or mitigating circumstances to help the judge determine the most appropriate sentence.
Mitigating factors...that is, factors that may help lighten the sentence...would include the fact that
- you returned the child unharmed and prior to your arrest or prior to the issuance of a California warrant, and/or
- you provided information and assistance leading to the child's safe return.
Aggravating factors...that is, factors that would justify a three- or four-year sentence...would include the following types of facts:
- you exposed the child to a substantial risk or physical injury or illness,
- you inflicted or threatened to inflict physical harm on the child/parent/lawful custodian at the time of or during the abduction,
- you took the child outside of the country,
- you substantially altered the appearance or name of the child, or
- you haven't returned the child.28
Depending on the circumstances of the offense, there are a variety of crimes that prosecutors could charge in addition to or in lieu of California child abduction charges. The following are three of the most common.
Penal Code 278.5 PC California's "deprivaton of custody" law is very closely related to Penal Code 278 PC. The difference between the two is that Penal Code 278 specifically targets individuals who do not have a right of custody over the child they are accused of abducting, whereas Penal Code 278.5 also encompasses persons that do have that right.
In addition, Penal Code 278.5 punishes an individual for interfering with another person's right of visitation, not just a right to custody.
Considered a slightly less serious offense than Penal Code 278, this offense is also a wobbler, but the felony conviction subjects an offender to 16 months or two or three years in prison rather than the two, three or four years required under 278. 29
You violate California's kidnapping laws, found under Penal Code sections 207-209.5 PC, when you move another person a substantial distance without that person's consent by using force or fear.30 "Force or fear" means that you actually inflict physical force upon the alleged victim or that you threaten to inflict imminent physical harm.
And if you move another person by using force, fear or fraud and
- the victim is a child under 14 years of age,
- you accompany the kidnapping with a demand for money (known as ransom),
- the victim suffers bodily harm or death, or
- you kidnap another person while you are violating Penal Code 215 PC California's carjacking law,31
the offense elevates to aggravated kidnapping.32
"Simple" kidnapping is a felony, subjecting you to up to 8 years in the
state prison.33 Aggravated kidnapping...also a felony...carries a sentence of five years to life, depending on the facts of the case.34
There are three primary differences between kidnapping and child abduction.
The first is that kidnapping requires that you move the victim a substantial distance - child stealing does not have this same requirement.
The second is that child abduction requires an intent to detain or conceal the child from his/her lawful custodian. However, kidnapping is much broader. Taking a person with any illegal intent is enough to sustain a kidnapping conviction.
Finally, kidnapping is a crime against the person being kidnapped. Child abduction is a crime against the parents of the child who is abducted.
Prosecutors could charge you with violating one or both of these laws, depending on the circumstances surrounding the offense.35
You violate Penal Code 236 PC California's false imprisonment law when you unlawfully inhibit another person's freedom. A conviction for this offense is a misdemeanor. But if you falsely imprison another person by means of fraud, deceit, menace or violence, the offense rises to a felony, punishable by up to three years in the state prison.36
And if the child is too young to resist or protest, you can still be convicted of this offense if the fraud, deceit, menace or violence is directed at the parent of the child. This is because of the fact that...similar to the rationale behind California's child abduction law...false imprisonment may be committed against the falsely imprisoned child's parent, not just the child.37
You can violate Penal Code 272 PC California's "contributing to the delinquency of a minor" law in a number of ways. But insofar as this charge relates to child abduction, the most common violation takes place when you have no substantial relationship with the child...and you only establish a relationship for the purpose of
- persuading and luring,
- transporting, or
- attempting to persuade, lure or transport
the child away from his/her home or any location known by the minor's parents/guardians. And although this "persuading, luring, or transporting" may be for any reason, you must intend to avoid the consent of the minor's parent/guardian.38
This offense may be filed as an infraction or a misdemeanor, which means that it is a less serious charge that carries less severe penalties than child abduction.
As such, one strategy you and your defense attorney may consider is a plea bargain to reduce the charge from Penal Code 278 child stealing to Penal Code 272 contributing to the delinquency of a minor.
Penal Code 653b PC loitering at a school is an offense that is sometimes charged along with or in lieu of child abduction.
You commit this offense when you linger at a school or other public place where children congregate (like a playground) with no lawful purpose AND with the intent to commit a crime if the opportunity arises.39
Loitering at a school or other public place is a misdemeanor.40 If you are accused of attempted child abduction, it may make sense to try to bargain for a charge reduction to this offense, which carries lighter penalties and less of a stigma.
Call us for help...
If you or loved one is charged with Penal Code 278 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.41
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.")
California Jury Instructions, Criminal "CALJIC" 9.72 - Definitions used in Penal Code 278 PC California's child abduction law. ("As used in the crime of child abduction: "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.]")
California Penal Code 207 PC - California's kidnapping law.
People v. Campos (1982) 131 Cal.App.3d 894, 899. ("Child stealing has always been considered in California to be a crime against the parent, not the child. It is designed to protect parents against the anxiety and grief which necessarily follow from the taking of their children.")
See Penal Code 278 PC - California's child abduction law, endnote 1, above.
California Penal Code 278.6
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.
See Penal Code 278 PC - California's child abduction law, endnote 1, above.
See endnote 4, above.
CALJIC 9.70 - Child abduction.
CALJIC 9.72 - Definitions used in Penal Code 278 PC California's child abduction law.
People v. Bormann (1970) 6 Cal.App.3d 292, 296.
People v. Hyatt (1971) 18 Cal.App.3d 618
People v. Moore (1945) 67 Cal.App.2d 789.
Wilborn v. Superior Court of Humboldt County (1959) 51 Cal.2d 828.
People v. Senior (1992) 3 Cal.App.4th 765, 781. ("We recognize the general rule is that a parent entitled to custody cannot be liable for kidnapping his or her own child. (Annot., (1983) 20 A.L.R.4th 823, § 3, pp. 828-830.) However, we are persuaded that such a parent is liable for kidnapping if he or she exercises custodial rights for an illegal purpose. (Cf. State v. Tuitasi (1986) 46 Wash.App. 206, 729 P.2d 75, 77.)") The same rationale applies to a child abduction charge, since one of the requirements is that the alleged offender be someone who does not have a right of custody. A parent who does would, therefore, be exempt from this law.
Judicial Council Of California Criminal Jury Instruction "CALCRIM" 2980 - Contributing to the delinquency of a minor.
People v. Bormann (1970) 6 Cal.App.3d 292, 298-299.
Orange County criminal defense attorney John Murray represents clients throughout Orange County, including Newport Beach, Santa Ana, Fullerton, Laguna Beach, Irvine, Anaheim and Westminster, as well as in the South Bay (including Long Beach and Torrance).
See endnote 4, above.
See also CALJIC 9.73 Child Abduction-Consent of Child. ("The fact that a minor child consented to go, or to stay, or decided voluntarily to accompany an adult is not a defense to the crime of unlawfully taking, obtaining, concealing, or enticing away a minor child.")
California Penal Code 278.5 PC -- 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 in the state prison 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.")
California Penal Code 278.6
- See same, section "c".
California Penal Code 278.5
California Penal Code 207 PC - California's kidnapping law, endnote 3, above.
Penal Code 215 PC California's Carjacking Law.
California Penal Code 207 PC - California's kidnapping law, endnote 3, above.
California Penal Code 208 PC -- Punishment for kidnapping; victim under 14 years of age; probation.
See also Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed."
See Penal Code 208, endnote 32, above. See also Penal Code sections 209 and 209.5, endnote 32, above.
California Penal Code 237 PC - False Imprisonment, punishment. ("(a) False imprisonment is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail for not more than one year, or by both that fine and imprisonment. If the false imprisonment be effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment pursuant to subdivision (h) of Section 1170. (b) False imprisonment of an elder or dependent adult by use of violence, menace, fraud, or deceit shall be punishable as described in subdivision (f) of Section 368.")
People v. Rios (1986) 177 Cal.App.3d 445, 450. See Penal Code 272 -- California's contributing to the delinquency of a minor law, subdivision (b).
Penal Code 653b PC - Loitering at a school.
Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's kidnapping laws or child abduction laws. Our Nevada law offices are located in Reno and Las Vegas.