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Child Abduction Laws in California - Penal Code 278 PC

Posted by Sam Israels | Oct 29, 2022

Penal Code 278 PC defines the crime of child abduction as when another person with no right of custody takes a child away and keeps them from their parents or legal guardians.

This crime is frequently connected to domestic violence. It's a “wobbler” that can be filed as a misdemeanor or felony.

Child Abduction Laws in California - Penal Code 278 PC

Child abduction is similar to but distinct from the crime of Penal Code 207 PC kidnapping, which is charged when someone is taken and moved a substantial distance by use of force, fear, or fraud, which is considered an aggravated felony and carries up to eight years in state prison.

The more serious Penal Code 209 PC kidnapping is charged if the victim is under 14 or it involves a demand for ransom and carries a potential life sentence.

Yet another related offense is Penal Code 278.5 PC, which defines the crime of deprivation of child custody.

It's described as a situation where somebody with legal custody of a child interferes with the other parent's visitation rights. Our California criminal defense lawyers will examine this law more closely below.

What is the Definition of Child Abduction?

Penal Code 278 PC defines the crime of child abduction as:

  • “anyone, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals a child with the intent to detain or conceal them from a lawful custodian is guilty of a crime.”

Thus, PC 278 is an offense against a child's parent or legal guardian. A related crime is Penal Code 236 PC false imprisonment which does not require using force or violence.

To obtain a conviction for violating Penal Code 278, the prosecution must prove, beyond a reasonable doubt, all the elements of the crime listed under California criminal Jury Instructions 1250 that the defendant:

  • maliciously took, kept, enticed away, or concealed a child from their legal custodian or parents; and
  • did not have a legal right to custody of the child, and
  • acted with the intent to conceal the child from their lawful custodian; and
  • the child was under the age of 18.

A “lawful custodian” has the legal right to have custody, control, and physical care of the child.

What About Child Custody Disputes?

This law is often prosecuted in cases of a child custody dispute between parents.  Family court proceedings commonly result in child custody orders where parents must split custody.

This means one parent will have primary child custody and exchange their child with the other parent for designated periods, such as the weekend, before returning them.

Sometimes, when a parent is unhappy about the custody arrangement, they will conceal their child, violating the other parent's child custody rights. They could face criminal charges under Penal Code 278 PC in this scenario.

What Are the Penalties?

As noted, PC 278 is a “wobbler” that can be filed as a misdemeanor or a felony crime. If you are convicted, the penalties include:

  • a misdemeanor child abduction carries up to a year in county jail, a $1,000 fine, or both;
  • A felony child abduction carries two, three, or four years in state prison and a fine of up to $10,000.

If you are convicted of a related crime, such as Penal Code 207 PC kidnapping or Penal Code 209 PC aggravated kidnapping, you could be sentenced to life n prison.

What Are the Federal Laws on Child Abduction?

Federal laws make child abduction a crime when the perpetrator flees state jurisdiction. For example:

  • The Hague Convention, to which the United States are signatories, has civil avenues for the return of children to the United States.
  • The International Child Abduction Remedies Act, 22 U.S.C. § 900, allows people to file Hague Convention cases in United States District Courts.
  • The Fugitive Felon Act, 18 U.S.C. § 1073, gives state and federal prosecutors legal authority to secure arrest warrants for anyone who committed child abduction in their jurisdiction and fled across state lines.
  • The International Parental Kidnapping Crime Act, 18 U.S.C. § 1204, established a separate federal crime for those that remove a child under 16 from the United States when the intent is to interfere with the legal custody rights of a parent

These different federal statutes are typically filed in cases where a child crosses over into international or state borders.

What Are the Legal Defenses for This Crime?

If you are facing allegations of violating Penal Code 278 child abduction law, there are several common legal defenses we can use, such as

  • You also have legal custody,
  • There was a lack of malicious intent,
  • There was no intent to conceal the child

Perhaps we can argue that you had a legal right to custody when you were accused of abducting the child.

Legal Defenses for Child Abduction

Recall from the elements of the crime above the prosecution must be able to prove you didn't have a right to custody.

Perhaps we can argue that you lacked malicious intent.  Maybe there was a misunderstanding or confusion over the custody terms related to the scheduled time and place for the exchange.

Perhaps we can argue that you did not have the intent to detain or conceal the child from their lawful guardian. Maybe your conduct was an attempt to protect the child from harm or abuse.

If you or a family member is under a criminal investigation or already charged with child abduction, contact our experienced legal team for a consultation.

Perhaps we can negotiate with the prosecutor to get the charges reduced or dismissed before court through prefiling intervention.

Cron, Israels & Stark is located in Los Angeles, California. We provide legal representation across the state. You can contact us for a free case evaluation via the contact form.

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About the Author

Sam Israels

Sam J. Israels is a Law Firm partner with the Law Offices of Cron, Israels, & Stark. Mr. Israels received his J.D. degree from the Santa Clara University School of Law. Mr. Israels also previously worked at the Los Angeles Office of the City Attorney. He is admitted to practice law in the State o...

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