California Penal Code Section 278.5 PC: Child Abduction By Depriving Right To Custody Or Visitation

Child custody battles can be incredibly difficult, especially when emotions run high. However, it’s important to follow the court-ordered custody agreement to avoid breaking the law. California Penal Code Section 278.5 PC makes it a crime to deprive someone else of their lawful right to child custody or visitation. This article will explain what the law says, penalties for violating it, and possible defenses.

What Does California Law Say About Child Abduction?

Under Penal Code 278.5 PC, it’s illegal to maliciously take, entice away, keep, withhold, or conceal a child from someone who has lawful right to custody or visitation [California Legislative Information]. To be convicted, the defendant must have violated a court-ordered custody or visitation agreement with the intent to deprive the other parent of their rights.

For example, if a divorce decree grants joint legal custody to both parents, with primary physical custody to the mother and scheduled visitation to the father, it would be a crime for the mother to take the child and disappear without allowing the father his court-ordered visitation. She acted maliciously to deprive the father of his rights.

Child abduction under this code section is a wobbler offense in California. A wobbler can be charged as either a misdemeanor or felony, at the prosecutor’s discretion. If charged as a misdemeanor, potential penalties include:

• Up to 1 year in county jail
• A fine up to $1,000
• Informal probation

If charged as a felony, potential penalties increase to:

• 16 months, 2 years, or 3 years in state prison
• A fine up to $10,000
• Formal probation

How Does the Prosecutor Prove Child Abduction?

For you to be convicted under PC 278.5, the prosecutor must prove the following facts [CALCRIM 1251]:

1. You took, enticed away, kept, withheld, or concealed a child;
2. You maliciously deprived someone else of their right to physical custody of the child or visitation with the child;
3. When you acted, you intended to deprive the other person of their right to custody or visitation; AND
4. You did not have a good faith belief that you had the right to act as you did.

“Maliciously” means you intended to deprive the other parent of their rights or that you acted with reckless disregard for their rights [CALCRIM 1251].

What Are the Defenses to Penal Code 278.5 PC?

There are several legal defenses that a California criminal defense lawyer could use to fight child abduction charges, including:

• You lacked criminal intent – If you can show you didn’t act maliciously and had a good faith belief that you had the right to custody or visitation when you allegedly took or concealed the child, you aren’t guilty under PC 278.5. For example, if the custody order wasn’t clear, or you misunderstood its terms.
• False accusations – Sometimes angry ex-spouses falsely accuse each other of violating custody agreements. Your attorney can investigate the facts and introduce evidence showing you didn’t commit child abduction.
• You had consent – It’s not child abduction if the other parent consented to you taking, enticing, or concealing the child. For example, if the other parent said it was okay for you to pick up the child a day early from visitation.
• You reasonably believed the child was in danger – If you can show you reasonably believed the child was in immediate danger in the other parent’s care, a defense called “necessity” may apply. Here, breaking the custody order is legally justified to protect the child from harm.

An experienced criminal defense attorney can evaluate the details in your case and decide which defenses to pursue. The right defense strategy can get charges reduced or dismissed so you avoid the severe consequences of a conviction.

Related California Offenses

Similar crimes related to child abduction under Penal Code 278.5 include:

• Penal Code 277 PC – Child Abduction – Taking or concealing a child from their lawful custodian when you have no right to custody [Penal Code 277 PC]. This is a wobbler in California.
• Penal Code 278 PC – Child Abduction – Taking or concealing a child outside California without permission, if you have no right to custody [Penal Code 278 PC]. This is a felony.
• Penal Code 280 PC – Child Abduction – Maliciously taking or concealing a child younger than 14 against their will [Penal Code 280 PC]. This is a wobbler.

A conviction under any of these related statutes can also lead to substantial criminal penalties. An attorney can help you build the strongest defense to avoid conviction.

Speak with a California Criminal Defense Lawyer

Being accused of child abduction under Penal Code 278.5 can have devastating personal and legal consequences. The best defense is having an experienced California criminal defense lawyer on your side. They can protect your rights at every stage of the case. Contact a skilled criminal defense attorney today to discuss fighting your charges.