Review of the Crime of PC 278 Child Abduction
California Penal Code 278 PC describes the crime of child abduction as when someone with no right of custody, takes a child away and keeps them from the parents of legal guardians.
This offense is sometimes related to domestic violence and a “wobbler” crime that can be charged as either a misdemeanor of felony offense.
Kidnapping – PC 207
Child abduction is also related, but distinct from, kidnapping under Penal Code 207 PC. Kidnapping is a crime against the person who is taken or moved a substantial distance by means of force, fear, or fraud.
Kidnapping is a an aggravated felony under California law that is punishable by up to 8 years in state prison if convicted..
In a “child” Penal Code 209 kidnapping, meaning a victim under the age of 14, or the kidnapping is accompanied by a ransom demand, the defendant can receive a potential life sentence.
Deprivation of custody – PC 278.5
Another related offense is Penal Code 278.5 which describes the crime of deprivation of child custody.
This statute deals with a situation where someone with legal custody to a child unlawfully interferes with the other parent's visitation rights.
Our Los Angeles criminal defense attorneys are providing more detailed information below.
Defining Child Abduction in California
Penal Code 278 PC provides a legal definition for child abduction as:
- “any person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals a child with the intent to detain or conceal them from a lawful custodian is guilty of a crime.”
A PC 278 violation, conversely, is a crime against the parent or legal guardian of a child. Another related crime is Penal Code 236 PC false imprisonment which does not require the use of force of violence.
Elements of the crime
A prosecution under Penal Code 278 requires the government to prove beyond a reasonable doubt all the elements of the crime (CALCRIM 1250):
- the defendant maliciously took, kept, enticed away, or concealed a child from their legal custodian;
- the child was under the age of 18;
- the defendant did not have a legal right to custody of the child,
- the defendant acted specifically with the intent to detain or conceal the child from their lawful custodian.
A “lawful custodian” is someone who has the legal right to have custody of the child and the right to physical care and control of the child.
Child custody disputes
This statute is most often prosecuted in the case of a custody dispute between two parents or legal guardians.
Family court proceedings often result in custody orders in which parents or legal guardians split custody over a child.
This means there are times when one parent or guardian enjoys custody rights and then exchanges the child with the other party who then enjoys custody rights until the time comes to exchange the child once again.
When one of these parties decides to withhold the child or conceal their whereabouts to frustrate the other party's custodial rights, a potential violation of Penal Code Section 278 has occurred.
Recall from the elements of the crime above that someone must act "maliciously" in order to be found guilty of child abduction, which means to specifically act with an unlawful intent.
Penalties for Penal Code 278 Child Abduction
As stated, PC 278 a “wobbler” under California law that gives the prosecutor the discretion to file the case as either a misdemeanor or a felony level offense.
Which decision the prosecution makes can have a significant impact on sentencing of a defendant who was convicted of child abduction:
- if convicted of misdemeanor child abduction, it's punishable by up to a year in county jail, a $1,000 fine, or both.
- if convicted of a felony child abduction, it's punishable by two, three, or four years in the California state prison and a fine of up to $10,000.
However, these penalties above are not as harsh as those connected to PC 207 kidnapping, or PC 209 aggravated kidnapping, which can carry a life sentence.
Keep in mind that in a kidnapping prosecution, the child is the victim. This means the prosecutor choose to file both kidnapping and child abduction charges simultaneously.
Federal Laws on Child Abduction
Federal law also has statutes that makes child abduction a crime when a defendant has fled the state jurisdiction in where the child typically lives with their lawful guardians.
The Hague Convention to which the United States are signatories, provides a legal civil avenue for the return of children to the United States.
The International Child Abduction Remedies Act, 22 U.S.C. § 900, permits individuals to file Hague Convention cases in United States District Courts.
Fugitive felon act
Further, federal law also has criminal statutes targeting interstate child abduction.
For example, the Fugitive Felon Act, 18 U.S.C. § 1073, gives state and federal prosecutors the authority to obtain federal arrest warrants for people who committed child abduction in their jurisdiction and then flee across state lines.
International parental kidnapping act
The International Parental Kidnapping Crime Act, 18 U.S.C. § 1204, creates a separate federal offense for removing a child under 16 from the United States when the intent is to interfere with a parent's legal custody rights.
These different statutes under federal law allow the prosecution of the same child abduction offense which PC 278 targets and where the crime crossed over into international or state borders.
Defenses for PC 278 Child Abduction Charges
If you are accused of child abduction in violation of Penal Code 278, there are a variety of defense strategies to fight the case:
- legal custody,
- lack of malicious intent,
- no intent to conceal.
We might be able to make an argument you had a legal right to custody at the time you were accused of abducting the child.
Recall from the elements of the crime above that the prosecutor must be able to you didn't have a right to custody.
Lack of malicious intent
We might also be able to make an argument you lacked malicious intent.
Perhaps there was a misunderstanding or confusion over the custody terms that prevented the child exchange at the scheduled time and place.
In other words, you may have technically violated the custody arrangement, but there was no child abduction offense.
No intent to conceal
Maybe we can make a reasonable argument you did not have intent to detain or conceal the child from their lawful guardian.
Perhaps you were in a situation where your actions were an attempt to protect the child from harm or abuse from their legal guardian.
If you or a family member is under investigation or already charged with the crime of child abduction pursuant to Penal Code 278 PC, or under federal law, contact our experienced criminal lawyers for a consultation.
We might be able to get the charges reduced or dismissed before court through prefiling intervention.
Eisner Gorin LLP is a top-ranked criminal defense law firm serving people in all Southern California courts.
Our law office is located at 1999 Avenue of the Stars, 11th Fl., Los Angeles, CA 90067.
Our main office is in the San Fernando Valley at 14401 Sylvan St #112 Van Nuys, CA 91401.
Call our firm for an initial consultation at (877) 781-1570.