California PC 278 Child Abduction Law
According to California Penal Code Section 278, child abduction is malicious taking, enticing, keeping, withholding or concealing a child with intention to detain or conceal the child from his legal custodian.
The prosecutor must establish the following elements to prove that defendant is guilty of child abduction:
- Defendant maliciously took, enticed, kept, withheld or concealed a child under the age of 18
- Defendant had intention to conceal or detain the child from his lawful custodian
- Defendant didn’t have legal right or custody of the child
To entice away means to seduce, attract, or allure a child by instilling desire and hope in someone. 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of a child granted by either a court order or by being the parent of the child and not having had custody rights rescinded or revoked by the court.
Lawful custodian is a person, guardian or a public agency having a right to custody of a child.
Difference Between a Child Abduction and Kidnapping
Crimes of child abduction and kidnapping should not to be interpreted as equivalent. 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.
Legal Defenses for California PC 278
- 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, 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 parent or legal guardian. In case defendant detains a child for the protection he must immediately contact 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 defendant’s criminal history.
Penalties for Misdemeanor Conviction of California PC 278:
- Up to one year in a county jail
- A fine up to $1,000
Penalties for Felony Conviction of California PC 278:
- Up to one year in a county jail
- Two, three or four years in the California state prison
- A fine 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