Penal Code 278 PC is the California statute that addresses child abduction, or, child stealing. The section makes it a crime for a person, with no right of custody over a child, to take the child away from his/her parent or legal guardian. The offense can lead up to four years in state prison.
278 PC states that “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 [is guilty of a crime]…”.
- a divorced dad with no custody rights over a child takes the youngster to a secluded ranch without telling anyone.
- a distant relative takes a boy to a different country with the intent to hide him from his parents.
- an aunt drives her niece to a “summer home” and does so while intending to conceal her from her mom.
A defendant can challenge a charge under this statute with a legal defense. Common defenses include:
- the defendant had legal custody of the child,
- the person from whom the defendant took the child was not a legal custodian, and/or
- the defendant did not act maliciously.
A violation of this statute is a wobbler. A prosecutor can charge a wobbler as either a misdemeanor or a felony.
A misdemeanor conviction is punishable by custody in county jail for up to one year.
A felony conviction is punishable by custody in state prison for up to four years.
Our California criminal defense attorneys will highlight the following in this article:
- 1. When is child abduction a crime?
- 2. How can a defense attorney help?
- 3. What is the sentencing upon conviction?
- 4. What if the defendant is not a U.S. citizen?
- 5. Can a person get a conviction expunged?
- 6. Does a conviction affect gun rights?
- 7. Are there related offenses?
1. When is child abduction a crime?
A prosecutor must prove the following to convict a person of child abduction:
- the defendant maliciously took or withheld a child from his/her lawful custodian,
- the child was under the age of 18,
- the defendant did not have a right to custody of the child when he/she acted, and
- the defendant intended to detain or conceal the child from the child's lawful custodian.1
Someone acts “maliciously” when he or she intentionally does a wrongful act. It also means to do something to:
- annoy, or
- injure someone else.2
A lawful custodian is a person or guardian that has a right to the custody of the child. The right to custody means the right to exercise:
- physical care, and
- control of the child.3
A person usually becomes a child's custodian because of the law or a court order.4
Note that a defendant is guilty of child abduction even if the child consented to go with him/her.
Example: Mark is Peggy's dad. Peggy is 8 years old.
Mark lets his brother (Peggy's uncle) watch her for the summer. Towards mid-summer, the uncle takes Peggy to Mexico and does so with the intent to hide her from Mark. Peggy gladly goes on the trip as she is up for adventures.
Here, the uncle is guilty of child abduction. This is even true despite the fact that Peggy never fought off the uncle or tried to resist in traveling.
Note that child abduction is a crime against the parent or lawful custodian. It is not a crime against the child that is taken.5
1.1. What is child abduction by depriving right to custody or visitation – PC 278.5?
Penal Code 278.5 PC is the California statute that describes the crime of deprivation of custody.
While the offense is similar to child abduction, the two statutes outline different crimes.
PC 278 involves a person taking a child from a lawful custodian without a right of custody. But PC 278.5 pertains to the situation where someone with a legal custody right to a child unlawfully interferes with another parent's custody or visitation rights.
A prosecutor must prove the following to convict a defendant under PC 278.5:
- the defendant maliciously took or withheld a child,
- the child was under the age of 18, and
- when the accused acted, he/she deprived a custodian of his/her right to custody or right to visitation.
Example: A divorced man has joint custody of his children with their mother, which means that they spend every other week with him. When he learns that his ex-wife has a new boyfriend, he gets angry and refuses to return the kids to her at the end of his week.
Here, the man is guilty of deprivation of custody. He withheld his children in a manner that deprived their mother from her right to custody.
2. How can a defense attorney help?
Defense attorneys use different strategies to oppose charges under PC 278. These include showing that:
- the defendant had legal custody of the child.
- the accused took a child from a person that was not the child's legal custodian.
- the defendant did not act maliciously.
2.1. Legal custody
An accused is not guilty under this statute if:
- he/she takes some legal act with a child, and
- the accused has legal custody of the child.
A mom, therefore, is not guilty if she takes her daughter to a friend's house for a few days.
2.2. No legal custodian
An accused is only guilty under these laws if he/she:
- takes a child, and
- does so from a person who is the legal custodian of that child.
This means it is always a defense for a defendant to say that the person from whom the child was taken was not a lawful custodian.
2.3. No malicious intent
Recall that a person must act “maliciously” to be found guilty under PC 278. Malicious, again, means to act with an unlawful intent. A defense, therefore, is for the defendant to show that he did not act in this manner.
3. What is the sentencing upon conviction?
A violation of this statute is a wobbler. A wobbler is an offense that the prosecutor can charge as either:
- a misdemeanor, or
- a felony.
Misdemeanor child abduction is punishable by:
- custody in the county jail for up to one year, and/or
- a maximum fine of $1,000.6
Felony child abduction is punishable by:
- custody in state prison for up to four years, and/or
- a maximum fine of $10,000.7
4. What if the defendant is not a U.S. citizen?
A conviction under these laws may have negative immigration consequences.
California law says that aggravated felonies can result in a non-citizen defendant being:
The facts of a case determine whether or not a felony is “aggravated,” with severe facts causing aggravation.
This means child abduction will have negative immigration results in cases with grave facts.
5. Can a person get a conviction expunged?
A person can get an abduction conviction expunged if:
- the conviction was for misdemeanor abduction, and
- the defendant successfully completed either a jail term or probation.
A person, though, cannot get a felony conviction expunged. Expungements are not allowed for crimes that lead to prison terms.
6. Does a conviction affect gun rights?
A misdemeanor conviction will not affect a person's gun rights.
Felony convictions, though, will cause a defendant to lose his/her rights to:
- buy a gun,
- own a gun, and
- possess a gun.
California law says that convicted felons must give up their gun rights.
7. Are there related offenses?
There are three crimes related to child abduction. These are:
- kidnapping – PC 207,
- false imprisonment – PC 236, and
- contributing to the delinquency of a minor – PC 272
7.1. Kidnapping – PC 207
Penal Code 207 PC is the primary California statute that defines the offense of kidnapping. A person commits the crime by:
- moving another person a substantial distance,
- doing so without the person's consent, and
- doing so by means of force or fear.
Recall that child abduction is a crime against the child's legal custodian. Kidnapping, though, is a crime against the person moved.
7.2. False imprisonment – PC 236
Penal Code 236 PC is the California statute that defines the crime of false imprisonment.
A person commits this offense if:
- he/she restrains, detains, or confines another person, and
- does so without that person's consent.
As with child abduction, a person can commit this crime without using force or violence.
7.3. Contributing to the delinquency of a minor – PC 272
Penal Code 272 PC is the California statute on contributing to the delinquency of a minor.
A person commits this crime if he/she acts in a way that causes a minor to become:
- a juvenile delinquent,
- a habitual truant, or
- a dependent of the juvenile court system.
For additional help...
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.
CALCRIM No. 1250 - Child Abduction: No Right to Custody. Judicial Council of California Criminal Jury Instructions (2017 edition). See also People v. Jones (2003) 108 Cal.App.4th 455.
CALCRIM No. 1250 - Child Abduction: No Right to Custody. See also People v. Ryan (1999) 76 Cal.App.4th 1304.
CALCRIM No. 1250 - Child Abduction: No Right to Custody.
People v. Fuentes, 2020 Cal. App. Unpub. LEXIS 1723.
California Penal Code 278 PC.