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Child Abduction Law in California

Aug 12, 2021 | Criminal Law

California PC 278 Child Abduction

According to California Penal Code Section 278, child abduction is malicious taking, enticing, keeping, withholding, or concealing a child with the intention to detain or conceal the child from his legal custodian.

What Must the Prosecutor Prove to Be Convicted of a PC 278 Child Abduction?

The prosecutor must establish the following elements to prove that defendant is guilty of PC 278 child abduction:

  • Defendant maliciously took, enticed, kept, withheld, or concealed a child under the age of 18
  • Defendant had the intention to conceal or detain the child from his lawful custodian
  • Defendant didn’t have legal right or custody of the child

What Do These Elements Mean?

  • To entice away means to seduce, attract, or allure a child by instilling desire and hope in someone. The defendant can still be charged of child abduction even if the child positively agreed to go with him.
  • To keep or withheld means retaining of physical possession of a child whether or not the child objects or resists
  • Right to custody is the right to physical care and control of a child granted by either a court order or by being the parent of the child and not having had custody rights rescinded or revoked by the court.
  • A lawful custodian is a person, guardian, or a public agency having a right to custody of a child.

What are the Differences Between a Child Abduction and Kidnapping?

Crimes of child abduction and kidnapping should not be interpreted as the same. Kidnapping is a crime against the kidnapped person while child abduction is a crime against both the child abducted and the parent of the abducted child.

What are the Legal Defenses for California PC 278 Charges?

  • The defendant had lawful custody of the child

In case the defendant is a lawful custodian of the child, he cannot be found guilty of this offense. A parent entitled to custody cannot be liable for abducting his own child.

  • Defendant took the child from a person who was not a legal custodian

Taking a child from a person who is not the lawful custodian of the child is not considered a violation of California PC Section 278. However, depending on the case circumstances, the defendant may face charges for kidnapping.

  • Defendant did not take the child maliciously

A child can only be detained or taken in violation of custody or visitation order only if there is a reasonable belief and good faith that the child may suffer bodily injury or emotional harm by staying with a parent or legal guardian. In case the defendant detains a child for protection he must immediately contact the local District Attorney’s Child Abduction Unit and follow reporting instructions for escaping punishment.

Penalties for Violating California Penal Code Section 278

California PC Section 278 is a wobbler and can either be charged as a misdemeanor or a felony, depending on the case circumstances and the defendant’s criminal history.

What are the Penalties for a PC 278 Misdemeanor Conviction?

Penalties for a PC 278 misdemeanor conviction include the following:

  • Up to one year in a county jail
  • A fine of up to $1,000

What are the Penalties for a PC 278 Felony Conviction?

Penalties for a PC 278 felony conviction include the following:

  • Probation
  • Up to one year in a county jail
  • Two, three, or four years in the California state prison
  • A fine of up to $10,000

Additionally, the defendant may be subject to pay restitution to the prosecuting agency, the victim or to any person acting on the victim’s behalf, for any costs reasonably incurred in locating and returning the child to the victim.

Aggravating and Mitigating Factors

The court will determine the penalty based on mitigating or aggravating factors presented by the prosecutor.

Aggravating Factors Can Include the Following Types of Facts

  • Defendant exposed the child to a substantial risk or caused physical injury or illness
  • Defendant took the child outside of the country
  • Defendant hasn’t returned the child
  • Defendant substantially altered the appearance or name of the child

Mitigating Factors Can Include the Following Types of Facts

  • Defendant returned the child safe and unharmed prior to the arrest or the issuance of a California warrant
  • Defendant provided assistance and information leading to the child’s return
  • Defendant undertook another action that could qualify as lesser charges

PC 278 Child Abduction Criminal Defense Attorney

If you or a loved one has been arrested for Penal Code Section 278, child abduction we invite you to contact KAASS LAW 310-933-5171 for a free consultation with our criminal defense attorney.