PC 277 & 278 & 278.5
As an experienced criminal defense team, we know just how important it is for us to equip you with the proper knowledge and information you will need to defend your case. In this article, we provide you an overview of the legal restrictions of Child Abduction Laws by addressing the following:
- What is “Child Abduction”?
- No Right to Custody
- Deprivation of the Right to Custody or Visitation
- Misdemeanor conviction
- Felony conviction
- How does the court determine the penalty?
- Aggravating factors
- Mitigating factors
- Legal Defenses
- You have a right to custody of the child
- The person from whom you took the child was not a legal custodian
- You did not maliciously abduct the child or violate elements of the law
- You filed a report to the court
- Definitions of Legal Terms
What is “Child Abduction”?
Under California Penal Code 278, child abduction (commonly referred to as “child stealing”) can be defined as two separate crimes:
- No Right to Custody (Under Penal Code 278), and
- Deprivation of the Right to Custody or Visitation (Under Penal Code 278.5)
Essentially, the difference between the two is that the first crime occurs in the absence of legal custody (“No Right to Custody”) and the other occurs by the impeding of another person’s legal right to be with the child (“Depriving Right to Custody”). We will examine these two in full detail below.
- I) No Right to Custody
In order for defendant to be found guilty of this crime, the prosecution must prove all of the following elements (or facts) beyond a reasonable doubt[i]:
- The accused maliciously took, enticed away, kept, withheld, or concealed a child from a lawful custodian;
- The child was younger than 18 years at the time;
- The accused had no legal right to custody of the child; and
- The accused acted intentionally to detain or conceal the child from his or her legal custodian.
- II) Deprivation of the Right to Custody or Visitation
In this kind of case, the prosecution must prove all of the following elements beyond a reasonable doubt in order for the defendant to be found guilty[ii]:
- The accused enticed away, kept, withheld, or concealed a child;
- The child was younger than 18 years of age; and
- The accused maliciously deprived a lawful custodian of a right to custody, or a person of a right to visitation.
In California, child abduction is considered to be a “wobbler”—a crime that may be charged by the prosecutor either as a felony or misdemeanor. This is largely dependent on several factors at the discretion of the prosecution and judge. Any person who is charged may face either a
- Misdemeanor conviction—imprisonment in county jail up to one year and/or a maximum monetary penalty of $1,000. A misdemeanor conviction is considered a less serious conviction, hence a shorter time and monetary penalties; or
- Felony conviction—imprisonment of 16 months in county jail (for Deprivation of the Right to Custody) or imprisonment of two, three, or four years in California state prison (for No Right to Custody); and/or a maximum monetary penalty of $10,000
In addition to these penalties, the defendant may be subject to pay restitution to the prosecuting agency and/or victim(s) involved, or to anyone acting on the victim’s behalf, for any costs reasonably incurred in locating and returning the child to the victim.[iii]
How does the court determine the penalty?
- I) Aggravating factorsThe judge would base his/her decision to charge the child abduction crime as a felony or misdemeanor on certain aggravating factors[iv] (factors that would justify harsher punishments) presented by the prosecutor such as:
- Whether the child was exposed to a substantial risk of physical injury or illness at any time during the abduction;
- Whether the defendant inflicted or threatened to inflict physical harm on the parent or lawful custodian of the child or the child at any point during the abduction;
- Whether the defendant harmed or abandoned the child during abduction;
- Whether the child was taken, kept, or concealed in a foreign country;
- Whether the child has not been returned to the lawful custodian;
- Whether the defendant previously abducted or threatened to abduct the child;
- Whether the defendant substantially altered the appearance or the name of the child;
- Whether the defendant denied the child appropriate education during the abduction;
- The length of time during which the abduction occurred; and
- The age of the child.
- II) Mitigating factorsThe judge may consider mitigating (or reducing) the charges and sentence imposed to the child abduction crime as a felony or misdemeanor on certain mitigating factors[v] (factors that may help lighten the sentence) presented by the defense attorney such as that the defendant:
- Returned the child unharmed AND prior to the arrest or issuance of a warrant for arrest (whichever is first);
- Provided information and assistance leading to the child’s safe return; or
- Undertook some other action(s) that could qualify as lesser charges.
When faced with a crime of child abduction, charges must be dropped so long as a defense attorney can successfully assert any of the following defenses while the prosecution must prove each element of charge beyond a reasonable doubt.
I) You have a right to custody of the child
If you are a lawful custodian of the child, you cannot be found guilty of this offense. In court, it has been ruled that a parent entitled to custody cannot be liable for kidnapping his or her own child.[vi]
II) The person from whom you took the child was not a legal custodian
The court has held that taking a child from someone who isn’t the lawful custodian of the child is not a violation of Penal Code 278.[vii]
III) You did not maliciously take the child or violate elements of the law
If you held an honest and reasonable good faith belief that the removal of the child from his/her lawful custodian was necessary to prevent any potential or further physical or emotional harm from the custodian, then you cannot be guilty of having malicious intentions.
However, even if a person took actions that fell short of child abduction with malicious intent, the person may still be charged with lesser offenses, such as attempted child abduction.[viii]
IV) You filed a report to the court
After the abduction of the child, if you made a report or custody proceeding to the court stating all changes in location, contact information, and intentions within a reasonable time period (10 days for a report, 30 days for custody proceeding), then you may not be found convicted of maliciously abducting a child.
Definition of Terms
Maliciously – When you intend every consequence of every action you take, or you act with the unlawful intent to disturb, annoy, harm, or injure another person.
Enticed away – To “entice” a child away means to attract, seduce, or allure a child by instilling hope and desire in someone. This is quite different than convincing a child by force.
For example, a famous case of People v. Moore (1945) revealed an incident in which the defendant was found guilty of deceiving and enticing a child and his mother. This also ruled that a child agreeing, or consenting, to have gone with the person charged with the crime of child abduction is not a valid defense. You can still be found guilty of child abduction even if the child positively consented to go with you.[ix]
Kept, withheld– Retaining of physical possession of a child whether or not the child resists or objects.[x]
Child – A person under the age of 18 years.[xi]
Right to custody – The right to physical care, custody, and control of a child granted by either having a court custody order or by being the parents of the child and not having had your custody rights rescinded or limited by the court.[xii]
Lawful custodian (Legal guardian) – A person, guardian, or public agency having a right to custody of a child.[xiii]
In the case of a joint legal custody between multiple guardians, legal custody is not to be interpreted as joint physical custody. The difference is that joint legal custody allows both of the parents/guardians the right to make decisions for the well-being of the child and important life decisions while physical custody means one parent/guardian has the lawful right to live with the child, and is the parent “having lawful charge”.[xiv]
Visitation – Time for access to the child allowed to any person by court order.[xv]
Note: While one may believe child abduction to be equal to or the same as kidnapping, the two are not to be interpreted as equivalent. As kidnapping is considered a crime against the kidnapped person, child abduction is considered a crime against both the child abducted as well as the parent of the abducted child.
We want to help…
If you or a loved one is being charged with violating any child abduction offense, we invite you to contact us immediately for a free case review. Schedule an appointment to meet with us in person, or feel free to submit an evaluation online and we will get in contact with you ASAP, or give us a call at (310) CRIM-LAW. We can provide a free consultation in our office located in Century City or by phone. Our experienced and assiduous team of professionals will be sure to fight until the end to reduce or drop your charges completely.
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[i] California Penal Code 278. 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.
[ii] California Penal Code 278.5(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.
[iii] California Penal Code 278.6(c). In addition to any other penalties provided for a violation of Section 278 or 278.5, 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.")
[iv] California Penal Code 278.6(a). 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 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.
[v] California Penal Code 278.6(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.
[vi] 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.
[vii] People v. Bormann (1970) 6 Cal.App.3d 292, 298-299. ("There is a second reason why the conviction cannot be sustained which involves the question of from whom the child must be taken. In People v. Edenburg (1928) 88 Cal.App. 558, 263 P. 857 the court said 'that section 278 (of the Penal Code) was intended to guard all minor children against those who would entice them away from their natural guardians, their parents, or from their legal guardians.' Section 278 of the Penal Code [California's child abduction law] should be read as though it contained the words 'from its parent, guardian, or other person having the lawful charge of such child' after the words 'takes or entices away any minor child.' In the case at bench, the child was in the physical custody of the mother when the mother and the defendant went to Mexico. The mother voluntarily left the child in the physical custody of the person referred to as 'Grandma'. If we assume that 'Grandma', through the consent of the mother, had 'the lawful charge of such child', there is nothing in the record to show that 'Grandma' in turn had any right to place the child with a family in Tijuana. The mother was unaware of this placement and thus the family in Tijuana cannot be said to have had 'the lawful charge of such child.'")
[viii] See under California Penal Code 664.
[ix] People v. Moore (1945) 67 Cal.App.2d 789. 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. After establishing certain conditions and restrictions agreed between the mother and the defendant, the defendant decided to take the child to several different states, compromising the mother’s original terms and conditions without notification of doing so. Although the defendant claimed that he brought the child back to his hometown but as not able to locate or get in contact with the child’s mother, in her absence, he continued to care for the boy and did not maliciously, forcibly, or inappropriately abduct the child with the intent to detain, conceal, or harm him. However, the court ruled a conviction supported by Penal Code 278 on the facts that 1) the defendant made false statements to the boy and his mother regarding his personal family background, and 2) he took the child to different states without the consent or knowledge of the mother.
[x] California Penal Code 277(g). “Keeps” or “withholds” means retains physical possession of a child whether or not the child resists or objects.
[xi] California Penal Code 277(a). “Child” means a person under the age of 18 years.
[xii] California Penal Code 277(e). A "right to custody" means the right to the physical care, custody, and control of a child pursuant to a custody order as defined in subdivision (b) or, in the absence of a court order, by operation of law, or pursuant to the Uniform Parentage Act contained in Part 3 (commencing with Section 7600) of Division 12 of the Family Code. Whenever a public agency takes protective custody or jurisdiction of the care, custody, control, or conduct of a child by statutory authority or court order, that agency is a lawful custodian of the child and has a right to physical custody of the child. In any subsequent placement of the child, the public agency continues to be a lawful custodian with a right to physical custody of the child until the public agency's right of custody is terminated by an order of a court of competent jurisdiction or by operation of law.
[xiii] California Penal Code 277(d). "Lawful custodian" means a person, guardian, or public agency having a right to custody of a child.
[xiv] People v Irwin (1984) 155 Cal.App.3d 891, 897. If the non-custodial parent (without physical custody) should exceed any visitation rights, that parent can be criminally charged with child abduction and cannot claim joint legal custody as a defense to the charge.
[xv] California Penal Code 277(h). “Visitation” means the time for access to the child allotted to any person by court order.