Penal Code 278.5 PC – Deprivation of Child Custody or Visitation
Child custody and visitation issues can be really complicated and emotional. As a parent, you want to spend time with your kids. But sometimes relationships break down and the other parent doesn’t want you to see them. This can lead to a lot of frustration and bad decisions.
In California, it’s against the law to deprive someone else of their lawful child custody or visitation rights. This crime is called “deprivation of child custody or visitation” and it’s charged under Penal Code 278.5 PC. If you’re dealing with custody issues, it’s important to understand this law so you don’t get yourself in legal trouble.
What is Deprivation of Child Custody or Visitation?
Under PC 278.5, it’s illegal to intentionally deprive someone of their right to physical custody or visitation with their child. To be guilty of this crime, you must:
- Maliciously take, detain, entice away, keep, or conceal a child from someone who has lawful custody or visitation
- Deprive that person of their right to custody or visitation
- Act without lawful justification
This crime applies to parents, grandparents, and anyone else with legal custody or visitation rights. It doesn’t matter if you have joint custody – you can still be charged with this offense for depriving the other parent of their rights.
What Does “Maliciously” Mean?
For this crime, “maliciously” means you intended to deprive the other person of their rights. It doesn’t necessarily mean you acted out of spite, meanness, or ill will. You just have to willfully and deliberately keep the child from the other parent or guardian.
Examples of Unlawful Deprivation of Custody
Some examples of illegally depriving someone of child custody or visitation include:
- Refusing to turn over the child to the other parent during their allotted time
- Moving away with the child without telling the other parent
- Not showing up for custody exchanges
- Not allowing phone calls or video chats during the other parent’s time
- Lying to the child to make them not want to see the other parent
- Not following the court-ordered custody agreement
Defenses to Penal Code 278.5 Charges
There are some legal defenses that could get PC 278.5 charges reduced or dismissed. Here are some common defenses:
- No malicious intent – If you didn’t deliberately try to deprive custody or visitation rights, you aren’t guilty of this crime.
- False accusations – Sometimes angry ex-spouses falsely accuse each other of this crime.
- Self-defense – You can legally use reasonable force to protect yourself or your child from harm.
- Necessity – In an emergency, you may have needed to violate a court order to protect your child.
- No court order – If there’s no formal custody agreement, this law may not apply.
Penalties for Violating Penal Code 278.5
Deprivation of child custody or visitation is a wobbler offense in California. This means it can be charged as either a misdemeanor or a felony. The potential penalties include:
- Misdemeanor – Up to 1 year in county jail, a fine up to $1,000, or both.
- Felony – 16 months, 2 years, or 3 years in state prison, a fine up to $10,000, or both.
If this is your first offense, the prosecutor will probably file misdemeanor charges. But if you have a prior criminal record, they are more likely to charge it as a felony.
How Can I Fight PC 278.5 Charges?
Getting arrested for this crime can be scary. But an experienced California criminal defense lawyer can help. They will thoroughly investigate your case and check for any illegal conduct by police. Often times they can get charges reduced or dismissed through:
- Negotiating with the prosecutor
- Challenging evidence
- Presenting affirmative defenses
- Seeking alternative resolutions
Instead of jail time, many first-time offenders can get probation, community service, parenting classes, or other alternatives. But you need an assertive legal advocate on your side.
How Can I Avoid Deprivation of Custody Charges?
The best way to avoid deprivation of custody charges is to follow your court-ordered custody agreement. If you and the other parent are having disputes, try mediation or request the court to modify the orders. Never take matters into your own hands by denying the other parent’s rights.
If the other parent is violating the agreement or endangering your child, speak to your attorney right away. They can file an emergency order if needed. But be patient and let the court process handle custody issues.
Going through a separation is hard enough without criminal charges making it worse. Speak to a qualified family law attorney if you need help with custody agreements. They can advise you on the best path forward for your situation.
With some cooperation and legal help, you and your ex can hopefully work out a peaceful solution. Your kids need both parents in their lives.
Get Legal Help Fighting Penal Code 278.5 Charges
Being arrested for depriving child custody or visitation rights can ruin your reputation and relationship with your kids. But experienced criminal defense lawyers can help. They will thoroughly examine your case and build the strongest defense to achieve the best possible outcome.
Don’t leave your fate in the hands of the public defender. Hire a private attorney who gives personal attention to each client. Take advantage of a free case evaluation to discuss your options.
With an aggressive legal defense, many people avoid jail time and felony convictions for PC 278.5 violations. But you need to act fast to protect your rights and future.
Sources:
- Penal Code 278.5 PC – California Legislative Information
- Penal Code 278.5 PC – Shouse California Law Group
- CALCRIM No. 2746 – Justia