California Penal Code Section 278 PC: Child Abduction

California Penal Code Section 278 PC: Child Abduction

Child abduction laws in California can be pretty complicated. As a parent, you want to make sure your kids are protected. But you also don’t want to get accused of breaking the law if there’s some dispute over custody. This article will break down California Penal Code Section 278 PC so you understand what’s legal and what’s not when it comes to taking your child.

What is Child Abduction Under California Law?

Let’s start with the basics. Under California Penal Code Section 278 PC, child abduction is committed when someone:

• Takes, entices away, keeps, withholds or conceals a child
• Does not have a right to custody of the child
• Acts maliciously, meaning with the intent to deprive the lawful custodian of their rights

This crime is a wobbler under California law. That means it can be charged as either a misdemeanor or a felony, at the prosecutor’s discretion. If charged as a misdemeanor, the maximum sentence is 1 year in county jail. As a felony, it’s punishable by up to 4 years in state prison.

What Does “Right to Custody” Mean?

A key element of this crime is that the person committing it does not have a right to custody of the child. So what exactly does “right to custody” mean?

Basically, it refers to having legal or physical custody of the child through:

• A court order
• Being the child’s parent, guardian or relative with a right to physical custody

If you have joint legal or physical custody, you have a right to custody even if the other parent has the child at that moment. But if you don’t have any custodial rights established through the courts or family relationship, then you don’t have a “right to custody.”

When is it Malicious?

In order for child abduction to be criminal, it has to be done with malicious intent. This means the purpose was to deprive the lawful custodian of their right to custody or visitation.

For example, say Aunt Jane picks up her niece from school one day without telling the parents. She just wants to take her niece to the zoo because it’s a special treat. But she plans to return the child later that day. This wouldn’t be malicious intent because Aunt Jane didn’t mean to deprive the parents of their custody rights.

But if Aunt Jane picked up her niece with the plan to take her out of state and keep her indefinitely, that would likely be considered malicious intent. Her goal was to deprive the parents of their custody rights, not just take the child on a fun outing.

How is Child Abduction Different from Kidnapping?

Child abduction under Penal Code 278 PC is similar to kidnapping under California Penal Code Section 207 PC. But there are some key differences:

• Kidnapping requires moving the victim a “substantial distance.” Child abduction has no substantial distance requirement.
• Kidnapping involves taking someone against their will by force or fear. Child abduction is taking a child without consent, but doesn’t require force or fear.
• The penalties for kidnapping are harsher than for child abduction.

However, in cases involving children under 14, California law does allow charging kidnapping under PC 207 even if no force was used. So prosecutors have discretion in situations involving young children.

Legal Defenses to Child Abduction Charges

If you’re accused of child abduction, some possible legal defenses include:

• You had consent – For example, the other parent said it was okay for you to take the child on vacation during their custodial time.
• No malicious intent – You took the child but only intended to keep them for a short time, not deprive anyone’s rights.
• Reasonable belief of consent – You reasonably but mistakenly believed you had the other parent’s consent to take the child.
• Right to custody – You have joint legal or physical custody established through a court order or family relationship.

An experienced criminal defense attorney can evaluate the details of your case and advise you on the best defense strategies.

Restraining Orders and Child Custody

Sometimes child abduction charges arise in the context of a heated custody battle. If you have concerns about your child’s safety with the other parent, get advice from a family law attorney right away. They may recommend filing for emergency custody orders or a restraining order to protect your rights.

Trying to take matters into your own hands by taking the child could lead to criminal charges. It’s always best to go through proper legal channels when disputes over custody arise.

Penalties for Conviction

Potential penalties if convicted of child abduction under California law include:

• Felony: 16 months, 2 years or 3 years in state prison
• Misdemeanor: Up to 1 year in county jail
• Formal probation
• Restitution fines
• Loss of custody rights

Any criminal conviction also carries other consequences like difficulty finding employment, loss of professional licenses, and deportation for non-citizens. So fighting the charges is critical.

Get Experienced Legal Help

Dealing with child abduction allegations can be extremely stressful. But with an experienced California criminal defense lawyer on your side, you can build the strongest possible case. A skilled attorney will thoroughly examine the evidence against you, advise you on the best legal strategies, and advocate for your rights at every stage.

Don’t leave your fate to chance. Get the legal representation you deserve and look into your options for fighting back against child abduction charges.

References

• California Penal Code Section 278 PC
• California Penal Code Section 207 PC
• Penal Code § 278 PC – California “Child Abduction” Laws
• California Penal Code Section 278 PC: Child Abduction
• Child Abduction | California Penal Code 278 PC