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    Criminal Defense Division

    Penal Code § 278 PC – California “Child Abduction” Law

    Penal Code 278 PC -- What is "child stealing" in California?

    Penal Code § 278 PC defines child abduction as a situation where a person (with no right of custody) takes a child away and keeps the child from the parents or legal guardians. The offense can be charged as a misdemeanor or a felony and carries up to four years in jail or prison.

    The language of the code section reads as follows:

    278. Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.

    Examples

    • a divorced dad with no parental rights, child custody order, or visitation order over a child takes the youngster to a secluded ranch without telling anyone (“parental kidnapping”)
    • a distant family member takes a boy to a different country with the intent to hide him from his parents.
    • an aunt drives her niece to a “summer home” and does so while intending to conceal her from her mom.

    Our California criminal defense attorneys will address the following in this article:

    1. What is child abduction?

    To make a case of child abduction in California, the state must prove that:

    1. you maliciously took or withheld a child from their lawful custodian,
    2. the child was under the age of 18,
    3. you did not have a right to custody of the child when you acted, and
    4. you specifically intended to detain or conceal the child from the child’s lawful custodian.1

    You act “maliciously” when you intentionally do a wrongful act. It also means to do something to:

    • disturb,
    • defraud,
    • annoy, or
    • injure someone else.2

    A lawful custodian is a person or guardian who has a right to the custody of the child. The right to custody means the right to exercise:

    • physical care, and
    • control of the child.3

    You usually become a child’s custodian because of the law or a court order.4

    Note that you are guilty of child abduction even if the child consented to go with you.

    Example: Mark is Peggy’s dad. Peggy is 8 years old. Mark lets his brother (Peggy’s uncle) watch her for the summer.

    Towards mid-summer, the uncle takes Peggy to Mexico and does so with the intent to hide her from Mark. Peggy gladly goes on the trip as she is up for adventures.

    Here, the uncle is guilty of child abduction. He detained Peggy by keeping her from her dad, and he enticed Peggy by using hope and desire (the trip). It does not matter that Peggy never fought off the uncle or tried to resist traveling or that the uncle never used force.

    Note that child abduction is a crime against the parent or lawful custodian. It is not a crime against the child that is taken.5

    Child abduction by depriving right to custody or visitation – PC 278.5

    Penal Code 278.5 PC is the California statute that describes the crime of deprivation of custody of a child.

    While the offense is similar to child abduction, the two statutes outline different crimes.

    PC 278 involves taking a child from a lawful custodian without a right of custody. PC 278.5 pertains to the situation where someone with a legal custody right to a child unlawfully interferes with another parent’s custody or visitation rights.

    A prosecutor must prove the following to convict you under PC 278.5:

    1. you maliciously took or withheld a child,
    2. the child was under the age of 18, and
    3. when you acted, you deprived a custodian of their right to custody or right to visitation.

    Example: A divorced man has joint physical custody of his children with their mother, which means that they spend every other week with him. When he learns that his ex-wife has a new boyfriend, he gets angry and refuses to return the kids to her at the end of his week.

    Here, the man is guilty of deprivation of custody. He withheld his children in a manner that deprived their mother of her right to custody.

    child talking to an adult prior to the adult committing California Penal Code 278

    One legal defense is that you had legal custody of the child.

    2. How can I fight the charges?

    Defense attorneys use different strategies to oppose charges under PC 278. These include showing that:

    1. you had legal custody of the child.
    2. you took a child from a person who was not the child’s legal custodian.
    3. you did not act maliciously.

    (Another possible defense is that you are the victim of false accusations.)

    Legal custody

    You cannot be an abductor under this statute if:

    1. you take some legal act with a child, and
    2. you have legal custody of the child at the time and place in question.

    A mom, therefore, is not guilty if she takes her daughter to a friend’s house for a few days.

    No legal custodian

    You are only guilty under these laws if you:

    1. take a child, and
    2. do so from a person who is the legal custodian of that child.

    This means it is always a defense to say that the person from whom the child was taken was not a lawful custodian.

    No malicious intent

    Recall that you must act “maliciously” to be found guilty beyond a reasonable doubt under PC 278. Malicious, again, means to act with unlawful intent. Therefore, a defense is to show that you did not act in this manner but instead acted in good faith.

    For example, failing to exchange custody of the child at the time and place designated in a custody order is not malicious as long as you acted out of genuine confusion about the contents of the custody order and had no intent to frustrate the custodial rights of the other parent or guardian.

    Nor is it malicious if a bona fide emergency prevented you from abiding by order. Or perhaps you had a reasonable belief that the other parent or guardian was violent and that your child would sustain imminent physical or emotional harm if you abided by the custody order.

    inmate being taken to a jail cell - child abduction under Penal Code 278 PC can lead to up to 4 years in jail or prison

    Prosecutors have the discretion to charge child abduction as a misdemeanor or felony.

    3. Is child abduction a felony?

    A violation of this statute is a wobbler. A wobbler is an offense that the district attorney’s office can charge as either:

    • a misdemeanor, or
    • a felony.

    Misdemeanor child abduction is punishable by:

    • custody in the county jail for up to one year, and/or
    • a maximum fine of $1,000.6

    Felony child abduction is punishable by:

    • custody in jail or state prison for two, three, or four years, and/or
    • a maximum fine of $10,000.7

    4. What if I am not a U.S. citizen?

    A conviction under these laws may have negative immigration consequences.

    California law says that aggravated felonies can result in you being:

    The facts of a case determine whether or not a felony is “aggravated,” with severe facts causing aggravation.

    This means child abduction will have negative immigration results in cases with grave facts.

    5. Can I get a conviction expunged?

    You can get an abduction conviction expunged if:

    1. the conviction was for misdemeanor abduction, and
    2. you successfully completed either a jail term or probation.

    Note that you cannot get a felony conviction expunged. Expungements are not allowed for crimes that lead to prison terms.

    6. Does a conviction affect gun rights?

    A misdemeanor conviction will not affect your gun rights.

    Felony convictions, though, will cause you to lose your rights to:

    • buy a gun,
    • own a gun, and
    • possess a gun.

    California law says that convicted felons must give up their gun rights.

    7. How do I report a child abduction?

    To report child abduction in California, contact the police as well as the National Center for Missing and Exploited Children’s 24/7 hotline at 1-877-446-2632.

    When you talk to police, ask them if they can enter the child into National Crime Information Center (NCIC) database as a missing person.

    8. Are there federal laws that apply?

    Federal law has a system in place to address cases where a person has allegedly taken a child and fled the state or country where the child normally lives.

    This system is based on the Hague Convention on the Civil Aspects of International Child Abduction, which is signed by 103 countries, including the United States. The Convention offers a means for the swift return of minors to the country where they normally live so that a custody dispute can be resolved.8

    Under the International Child Abduction Remedies Act, people can file Hague Convention cases in United States District Courts. This way, aggrieved parents do not have to leave the U.S. to pursue getting their children back.9

    Additionally, federal law contains criminal provisions aimed at addressing child abduction across state lines or international borders.

    • The Fugitive Felon Act enables local district attorneys to obtain federal arrest warrants for people who have committed a child abduction crime and then fled to another state where the district attorneys normally have no jurisdiction.10
    • The International Parental Kidnapping Crime Act of 1993 creates a distinct federal crime for removing a minor under 16 from the U.S. with the intention of interfering with the custody rights of a parent or legal guardian.11
    • The Extradition Treaties Interpretation Act of 1998 specifies that, for the purpose of extradition treaties between the United States and other countries, the federal definition of kidnapping comprises international child abduction.12

    These provisions, together, give federal police the means to criminalize and prosecute child abduction offenses that cross state- or country borders.

    9. Are there related offenses?

    Kidnapping – PC 207

    Penal Code 207 PC is the primary California statute that defines the offense of kidnapping, which is a more serious charge than child abduction. You kidnap by:

    1. moving another person a substantial distance,
    2. doing so without the person’s consent, and
    3. doing so by means of force, fear, or fraud.

    Kidnapping normally carries up to eight years in prison. Aggravated kidnapping – which is when the victim is under 14, or there is a ransom demand – carries a potential life sentence.

    Recall that child abduction is a crime against the child’s legal custodian. A kidnapping charge, though, is a crime against the person moved.

    Therefore, depending on the circumstances of your particular case, you can be charged with both crimes simultaneously as they are not mutually exclusive.13

    False imprisonment – PC 236

    Penal Code 236 PC is the California statute that defines the crime of false imprisonment.

    You commit this offense if:

    1. you restrain, detain, or confine another person, and
    2. do so without that person’s consent.

    As with child abduction, you can commit this crime without using force or violence.

    Contributing to the delinquency of a minor – PC 272

    Penal Code 272 PC is the California statute on contributing to the delinquency of a minor.

    You commit this crime if you act in a way that causes a minor to become:

    • a juvenile delinquent,
    • a habitual truant, or
    • a dependent of the juvenile court system.

    Helpful Resources:

    Legal References:

    1. CALCRIM No. 1250 – Child Abduction: No Right to Custody. Judicial Council of California Criminal Jury Instructions (2017 edition). See also People v. Jones (2003) 108 Cal.App.4th 455. See, for example: People v. Irwin (1984) 155 Cal.App.3d 891; People v. Torres (1920) 48 Cal.App. 606; People v. Moore (1945) 67 Cal.App.2d 789. See also CALCRIM 1251 – Child Abduction: By Depriving Right to Custody or Visitation. See also CALCRIM 1252 – Defense to Child Abduction: Protection from Immediate Injury.
    2. CALCRIM No. 1250. See also People v. Ryan (1999) 76 Cal.App.4th 1304.
    3. See Same.
    4. See same.
    5. People v. Fuentes, 2020 Cal. App. Unpub. LEXIS 1723. See, for example: People v. Hyatt (1971) 18 Cal.App.3d 618; People v. Grever (1989) 211 Cal.App.3d Supp. 1; In re Harris (1993) 5 Cal.4th 813.
    6. California Penal Code section 278 PC.
    7. See same.
    8. 28: Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
    9. 22 U.S.C. 9001.
    10. 18 U.S.C. 1073.
    11. 18 U.S.C. 1204.
    12. 18 U.S.C. 3181.
    13. See also In re Michele D. (2002) 29 Cal.4th 600; People v. Campos (1982) 131 Cal.App.3d 894.

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