What is ‘Criminal Restraint By A Parent’?

June 18, 2022 by Madison Ferguson in California  Criminal Defense  
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‘Parental Kidnapping’ in California

Criminal restraint by a parent in California is often described as ‘parental kidnapping’. What most parents do not know is that they can be arrested for kidnapping their own children.

In fact, in most kidnappings involving children, the perpetrator is usually someone they are related to.

In California, most cases of criminal restraint by a parent usually occur when the parents separate or are going through divorce proceedings. Thus, a person may be accused of criminal restraint by a parent if they take or withhold a child from their legal guardian or they deprive the other parent of their visitation or custodial rights granted to them by a court of law.

California Criminal Restraint By a Parent Laws

If you are suspected of unlawfully restraining your child in California. You can be charged under any of these two statutes that involve child abduction depending on the circumstances of the offense:

Offenses under either of these statutes can either be charged as a misdemeanor or a felony, depending on the circumstances of the cases.

Legal Definition of These Statutes

Under California Penal Code 278 PC, this statute makes it illegal for a parent without custody to maliciously take, entice away, keep, withhold or conceal a child from their lawful guardian. The child in this situation must be under eighteen for it to count as child abduction under California law. Parents who have legal custody of their child at the time when the criminal restraint occurred are not eligible for charges under California Penal Code 278.

If convicted for a misdemeanor under this statute, the defendant could be facing:

  • Maximum incarceration of one year in county jail
  • A fine of up to $1,000

If the crime is charged as a felony, the suspected parent could be looking at:

  • Maximum of four years in state prison
  • A maximum fine of $10,000

The other statute a parent can be charged with for criminally restraining their child is the California Penal Code Section 278.5 PC, commonly known as interfering with child custody. Under this statute, it is illegal for a parent to maliciously keep or prevent another from seeing a child they have custody or visitation rights over. Thus, even parents with sole custody over their children can still be charged with criminal restraint by a parent.

If convicted under PC 278.5, the suspected parent could be looking at the following penalties for a misdemeanor charge:

  • Maximum incarceration of one year in county jail
  • A maximum fine of $1,000

For a felony charge, the defendant could be looking at:

  • Up to three years of incarceration in state prison
  • A maximum fine of up to 10,000

Exceptions to Criminal Restraining By A Parent

While there may be no exceptions for criminally restraining a child under 18 if you do not have custody. There are some exceptions for choosing to criminally restrain a child in violation of California Penal Code 278.5. If the parent had good faith and reasonable belief that the other parent was going to inflict immediate bodily injury and emotional harm and opted to restrain the child. They may not be charged under PC 278.5.

However, if they do decide to do this, they must do the following within a reasonable time to avoid facing any charges:

  • Must file a report with the District Attorney’s Office notifying them that you took the child
  • Keep the DA’s office updated with the latest contact information for the child.
  • File for sole custody in line with the Parental Kidnapping Prevention Act and Uniform Child Custody Jurisdiction Act.

Call A Lawyer

The fact is, being charged for criminal restraint by a parent is a very serious offense that can come with some serious ramifications. If you had custody or visitation rights, California’s family court can choose to revoke or change them if you receive a conviction for parental kidnapping.

Therefore you want to ensure you contact an experienced California lawyer to help you deal with these charges and ensure you get the best outcome possible. Our lawyers can offer you a competent review of your case to make certain you have a valid defense to argue the charges.

Need an Attorney? CALL NOW: 310-274-6529

Seppi Esfandi is an Expert Attorney who has over 21 years of practice defending a variety of cases.

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Lara S.
December 3, 2019
Seppi had my case reduced to just an infraction, and thanks to him I was able to keep my job. Jorge was extremely helpful too, the reason I went with this law firm. Overall pleased.

How to Win Your Case

We cannot stress enough that you read, understand and follow these 10 basic rules if you are criminally charged or under investigation:

  1. Don’t ever talk to the police
  2. Do not discuss your case with anyone
  3. Everything you tell your lawyer is confidential
  4. Tell police you need to contact your attorney
  5. Never consent to any search by the police
  6. If the police knock on your door, don't answer!
  7. Realize the consequences of a criminal conviction
  8. Your lawyer (not you) will contact any witnesses
  9. Information on your cell phone is evidence
  10. Early Intervention is the key

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