California Penal Code 270 PC law makes it a misdemeanor to fail to provide necessary material care for your minor child.1
The legal definition of child neglect in California
The legal definition of failure to provide care to a child in California under Penal Code 270 is as follows:
- You were the parent of a child;
- The child was a minor (under the age of eighteen (18));
- You failed to provide necessities for the child; and
- That failure was willful and without lawful excuse.3
Parent of a child
For purposes of California Penal Code 270 PC, you are considered to be the “parent” of a child even if you never married or are divorced from the child's custodial parent and do not have any rights to custody of the child.4
Example: Todd and Sarah have just broken up after a brief relationship. Sarah tells Todd that she is pregnant and intends to have the baby. Todd tells her he would prefer that she terminate the pregnancy but that it is her choice. She and he don't speak again.
Years later, Todd runs into an old mutual friend of his and Sarah's. The friend tells him that Sarah has developed a methamphetamine habit and is neglecting the son she had by Todd by failing to provide him with sufficient food and clothing.
Todd feels terrible when he hears this but does not have the time to help and does not think Sarah would want to deal with him if he tried to contact her. So he does nothing.
Todd may be guilty of PC 270 failure to provide care even though he has never met his son.
If you are a man who is neither impotent nor sterile, and the child was born while the child's mother was married to and cohabiting with you, the jury may presume that you are the child's father, even if the mother may have been sleeping with other people at the time.5
Failed to provide necessities
For purposes of California's child neglect law, “necessities” means:
- Shelter; and
- Medical care or other remedial care.6
Spiritual treatment through prayer, as required by a recognized church or religious denomination and provided by one of the church's practitioners, is considered a form of “other remedial care.”7
This means that a parent whose religious beliefs prevent them from using traditional medicine for their children may use “faith healers” instead, without being guilty of California Penal Code 270 failure to provide care.
(However, it is important to note that parents who choose prayer-based treatment rather than medical care for their children can still be convicted of child endangerment—or even Penal Code 192(b) involuntary manslaughter if the child dies.8)
Willfully and without lawful excuse
“Willful” means willingly or on purpose.9
You are considered to have a “lawful excuse” for failure to provide care if, through no fault of your own, you are unable to earn enough money to pay for the child's necessities.10
Example: Maria and Tom are a married couple with four children. Maria has a medical condition that makes it hard for her to hold down a job. Tom works in a warehouse—but he is laid off when the economy goes into a recession.
Tom tries to find another job but is unable to do so. The family is evicted from their apartment, and they end up living in a tent on a friend's property. They rely on food stamps and food banks to eat, but every week or so there is a night when there is no food for the children's dinner.
A teacher at the children's school notifies the police, and Frances and Tom are charged with PC 270 child neglect.
Frances and Tom have a lawful excuse—lack of money—for failing to provide their children with adequate shelter and food. Thus, they are probably not guilty of failure to provide care.
But defendants are NOT considered to have a “lawful excuse” for failing to provide care in any of the following situations:
- The defendant unreasonably chose to spend money on other things; or
- The defendant failed to diligently look for work.11
Also, you may not avoid criminal liability for child neglect just because the other parent, another person, or an organization provided the child with the support that you did not provide.12
Example: Liz is a single mother with an eight-year-old daughter named Crystal. Liz works part-time as a cocktail waitress but doesn't make a lot of money, and she spends a lot of money on clothes and entertainment for herself.
Often before payday Liz does not have enough money to buy food, so Crystal has nothing to eat. When winter comes, Liz does not buy Crystal warm clothes.
Izzy is Crystal's teacher. He knows about her situation at home and feels sorry for her. He often gives her lunch when she is hungry, and he buys her some winter clothes at a secondhand store.
Liz doesn't have enough money to buy necessities for Crystal, but that is only because she chooses to spend her money on other things. So she is guilty of Penal Code 270 failure to provide care—even though Izzy provides Crystal with many of the necessities that Liz does not provide.
Failure to provide care under California Penal Code 270 is a misdemeanor in most cases. The potential penalties are;
- Misdemeanor (summary) probation;
- Up to one (1) year in county jail; and/or
- A fine of up to two thousand dollars ($2,000).13
California's child neglect statute actually provides that the crime becomes a wobbler—which means that it could be charged as either a misdemeanor or a felony—if the defendant has previously been adjudicated by a court to be the parent of the child.14 (In other words, tougher penalties apply if the defendant is a father whose paternity of the child has been disputed in court in the past.)
Fortunately, though, a California court has held that those tougher penalties violate the Equal Protection Clause of the U.S. Constitution in cases where the defendant has never before been convicted of child neglect.15
Thus, the prosecutor is unlikely to pursue felony penalties for PC 270 failure to provide care UNLESS you have previously been convicted of this offense.
If you are charged with failure to provide care under California Penal Code 270 PC, you may be able to beat the charges with the help of one of these legal defenses:
You did not act willfully
According to City of Orange criminal defense attorney David F. Poblete16:
“The enforcement of California's child neglect law often reflects society's biases against so-called ‘deadbeat dads.” It is common for fathers who don't have custody of their children to be charged under this law. In many such cases, the defendant would have loved to help his children—but was prevented from doing so by their mother or other relatives, or else did not even know that the children were not being provided with necessities.”
In cases like this, the defendant was not acting willfully—and it is the job of a good criminal defense attorney to help convince the judge or jury of this.
You had a lawful excuse
It is a valid defense to charges of failure to provide care if you really did not have the financial means to provide necessities for your child.
Situations like these are heartbreaking for parents—and criminal charges certainly only make things worse.
But with the right defense team, you can gather the necessary evidence to show that you truly lacked the economic resources to purchase necessities.
Call us for help…
For questions about the crime of Penal Code 270 PC child neglect, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
1 Penal Code 270 PC – Failure to provide; parent; punishment; effect of custody; evidence; applicability of section; artificial insemination; treatment by spiritual means. (“If a parent of a minor child willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter or medical attendance, or other remedial care for his or her child, he or she is guilty of a misdemeanor punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment. If a court of competent jurisdiction has made a final adjudication in either a civil or a criminal action that a person is the parent of a minor child and the person has notice of such adjudication and he or she then willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter, medical attendance or other remedial care for his or her child, this conduct is punishable by imprisonment in the county jail not exceeding one year or in a state prison for a determinate term of one year and one day, or by a fine not exceeding two thousand dollars ($2,000), or by both such fine and imprisonment. This statute shall not be construed so as to relieve such parent from the criminal liability defined herein for such omission merely because the other parent of such child is legally entitled to the custody of such child nor because the other parent of such child or any other person or organization voluntarily or involuntarily furnishes such necessary food, clothing, shelter or medical attendance or other remedial care for such child or undertakes to do so. Proof of abandonment or desertion of a child by such parent, or the omission by such parent to furnish necessary food, clothing, shelter or medical attendance or other remedial care for his or her child is prima facie evidence that such abandonment or desertion or omission to furnish necessary food, clothing, shelter or medical attendance or other remedial care is willful and without lawful excuse. The court, in determining the ability of the parent to support his or her child, shall consider all income, including social insurance benefits and gifts. The provisions of this section are applicable whether the parents of such child are or were ever married or divorced, and regardless of any decree made in any divorce action relative to alimony or to the support of the child. A child conceived but not yet born is to be deemed an existing person insofar as this section is concerned. The husband of a woman who bears a child as a result of artificial insemination shall be considered the father of that child for the purpose of this section, if he consented in writing to the artificial insemination. If a parent provides a minor with treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, by a duly accredited practitioner thereof, such treatment shall constitute “other remedial care”, as used in this section.”)
See also People v. Gregori (1983) 144 Cal.App.3d 353, 356. (“We decide that increased punishment for a father violating section 270 for the first time, but who has previously been adjudged to be the father in either a civil or a criminal case, denies him equal protection of the laws under our federal and state Constitutions. We conclude the compelling state purpose which warrants the imposition of criminal sanctions for the failure of a father to perform his duties is not furthered by increasing the punishment where the father's sole culpability has been either his insistence on or the fortuitousness of an earlier paternity determination.”)
See also Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 2981 – Failure to Provide (Pen. Code, § 270). (“[A parent must provide necessities for a minor child even if he or she never married or is divorced from the child's other parent. This duty also exists regardless of any court order for alimony or child support in a divorce action.] [It is not a lawful excuse that the other parent has legal custody of the minor child or that the other parent, another person, or an organization voluntarily or involuntarily has provided necessities for the minor child or undertaken to do so.]”)
3 CALCRIM 2981 – Failure to Provide (Pen. Code, § 270). (“The defendant is charged [in Count ] with failing to provide for (his/her) (child/children) [in violation of Penal Code section 270]. To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant was the parent of <insert name[s] of child or children>; 2 <insert name[s] of child or children> (was/were) [a] minor[s]; 3 The defendant failed to provide necessities for <insert name[s] of child or children>; AND 4 The failure to provide was willful and without lawful excuse. A minor is a person under 18 years old.”)
4 CALCRIM 2981 – Failure to Provide (Pen. Code, § 270), endnote 2 above.
5 CALCRIM 2981 – Failure to Provide (Pen. Code, § 270). (“[If the People prove beyond a reasonable doubt that: 1 <insert name[s] of child or children> (was/were) born while the defendant's wife was cohabiting with him, AND 2 The defendant is neither impotent nor sterile, then you may but are not required to conclude that the defendant is 's <insert name[s] of child or children>father.]”)
6 CALCRIM 2981 – Failure to Provide (Pen. Code, § 270). (“Necessities are necessary clothing, food, shelter, [and] medical care[, or other remedial care] for a minor child. [Other remedial care includes spiritual treatment through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination and by one of its duly accredited practitioners.]”)
8 Walker v. Superior Court (1988) 47 Cal.3d 112.
9 CALCRIM 2981 – Failure to Provide (Pen. Code, § 270). (“Someone commits an act willfully when he or she does it willingly or on purpose.”)
10 CALCRIM 2981 – Failure to Provide (Pen. Code, § 270). (“[A parent must do all that is reasonable in order to provide necessities for minor children. A parent has a lawful excuse for failing to do so if, through no fault of his or her own, he or she is unable to earn enough money and does not have other income or assets to pay for those necessities. [It is not a lawful excuse if the parent is unable to provide necessities because he or she has unreasonably chosen to spend money on other things or has failed to diligently seek work.]]”)
12 CALCRIM 2981 – Failure to Provide (Pen. Code, § 270), endnote 2 above.
13 Penal Code 270 PC – Failure to provide; parent; punishment; effect of custody; evidence; applicability of section; artificial insemination; treatment by spiritual means, endnote 1 above.
15 People v. Gregori (1983) 144 Cal.App.3d 353, 360.
16 City of Orange criminal defense attorney David F. Poblete is an energetic young attorney who has devoted his career to defending the civil rights of criminal defendants. He has particularly sympathy for clients accused of emotionally-charged offenses like failure to provide care. Poblete regularly defends charged in the Superior Courts of Los Angeles, Orange and San Diego Counties.