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Child Abduction: Law & Defense
PC 278 Crimes
Information on the crime of child abduction is found at California penal code section 278.
PC 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 is guilty of child abduction (Abbreviated).
Child abduction charges often stem from defendant's violation of a family law court order for visitation (parenting time) after the defendant, who is without legal custody rights to his or her child, does not return his or her child to the custodial parent after court ordered visitation is schedule to end.
Note: Child abduction and kidnapping are similar crimes. The crime of child abduction is charged where there is some relationship between the child and the defendant, such as parent to child, grandparent to grandchild, etc. When there is no relationship between a child and the person who who takes or hides a child away from a custodial parent the crime is kidnapping.
Note: The crime of child abduction is often charged along with the crime of contempt of court or violation of a restraining order because the non custodial parent who abducts his or her child or stepchild is usually also in violation of some type of court order.
PC 278 Punishment
PC 278 is charged as a felony or as a misdemeanor (wobbler). Felony child abduction, charged as PC278-F, carries a maximum jail sentence of four years. Misdemeanor child abduction, charged as PC 278-M, carries a maximum jail sentence of one year.
Note: In some cases, it might be possible to reduce a felony child abduction charge to a misdemeanor child abduction charge depending on the facts of the case and the defendant's criminal history.
Probation Sentence: A probation sentence is period of supervision instead of actual jail. Probation sentences are allowed in PC 278 cases, but not guaranteed. Whether or not a probation sentence will be granted upon a conviction for a violation of PC 278 depends largely on the facts of the case and the defendant's criminal history. Probation sentences can include actual jail, but any jail sentenced ordered as part of a probation sentence may usually be served alternatively on work release or house arrest.
PC 1170(h) Sentence: If the defendant is sentenced to jail for PC 278, that jail sentence would be served in a local county jail (as opposed to a state prison). In addition, the court could allow the defendant to serve part of his or her jail sentence in custody and part of it out of custody (split sentence), or the court may allow any jail sentence to be suspended (not served unless the defendant violates his or her conditions release.
In addition to any possible incarceration, if found guilty of child abduction (PC 278), the defendant could also face the following punishments: monetary fines and penalties, denial or entry into the military, loss of the right tot adopt a child, loss of parenting time with the victim, loss of the right to own a firearm, restitution, criminal protective orders, domestic violence restraining order (DVRO in family law court), immigration and professional licensing consequences, loss of driving privileges (if abduction involved a vehicle), and more.
Bail Issues: In San Bernardio County, the bail amount for felony child abduction allegations is $50,000, and for misdemeanor child abduction it is $5,000. It is possible for the defendant to be released from jail on his or her own recognizance (without the need for bail) while awaiting a court disposition on a PC 278 charge, but whether or not the court is willing to release a defendant on his or her own recognizance (O.R.) depends largely on the defendant's criminal history.
Defense to Child Abduction
The most common defenses to PC 28 allegations include mistake of fact (the defendant was mistaken as to the court ordered parenting time schedule) or defense of others (the defendant was protecting the child from an objective danger to the child if he or she were to return the child to the custodial parent.
Note: For a defense of others defense to be reasonable the non custodial parent (defendant) should probably have contacted the police for an emergency protective order (CPO), and thereafter, file for an ex parte emergency hearing in the family law court for a domestic violence restraining order (DVRO), as opposed to just taking, or keeping, a non custodial child, without any legal justification.
Other defenses to to child abduction charges include consent to take the child, lack of intent (forgot the parenting time schedule or made good faith efforts to return the child but could not because of a factor outside of the defendant's wrongdoing), jury nullificiatton, and more.
If you have been arrested or charged with child abduction, or PC 278, contact out criminal defense lawyers today for a free consultation. Our law firm has full-time family law and criminal defense lawyers available to answer all of your family law and criminal defense questions.Thank you.
Quick Reference Sheet
Crime: Child Abduction by Person without Custody
Code: PC 278 (CalCrim No. 1250 & 1251)
Wobbler: Yes. PC 278 is a wobbler crime. This means that PC 278 may be charged as a felony or as a misdemeanor.
Incarceration: Felony PC 278 jail sentence range: 2, 3 or 4 years (if probation not granted). Misdemeanor jail sentence up to 1 year.
Probation: Probation is allowed in PC 278 cases (assuming other crimes or enhancements that bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
Work Release or House Arrest: In some cases, a probation sentence can include actual in-custody county jail, house arrest (electronic monitoring), or work release (or some combination of these penalties); however, most in-custody jail sentence orders that are required as a terms of probation are much shorter than the maximum jail sentence.
PC 1170(h)): Yes. PC 278 is subject to PC 1170(h) sentencing. This means that any jail or prison sentence may be:
Split (half in-custody / half out-of-custody)
Suspended (possibly never served)
Served in county jail (not state prison)
Note: Limitations may apply
Strike: PC 278 is not a strike offense listed in California's Three Strikes law.
Credits: 50% good conduct credits available.
Firearms: Felony PC 278 convictions prohibit defendant from owning or possessing a firearm.
Bail: $50,000 (Felony); $5,000 (Misdemeanor) (San Bernardino)
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